Sierra Club v. Envtl. Prot. Agency
| Decision Date | 26 August 2022 |
| Docket Number | 20-1121 |
| Parties | Sierra Club, et al., Petitioners v. Environmental Protection Agency and Michael S. Regan, Administrator, U.S. Environmental Protection Agency, Respondents BCCA Appeal Group, et al., Intervenors |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Argued May 9, 2022
On Petition for Review of Final Actions of the Environmental Protection Agency
Seth L. Johnson argued the cause for petitioners. With him on the briefs was Neil Gormley. Adam M. Kron entered an appearance.
Meghan E. Greenfield, Senior Counsel, U.S. Department of Justice argued the cause for respondents. On the brief were Todd Kim Assistant Attorney General, and Alan D. Greenberg, Attorney.
Aaron M. Streett argued the cause for intervenors. With him on the brief were Matthew L. Kuryla, Ken Paxton, Attorney General Office of the Attorney General for the State of Texas Priscilla M. Hubenak, Chief, Environmental Protection Division, and Linda B. Secord and John R. Hulme, Assistant Attorneys General.
Before: SRINIVASAN, Chief Judge, TATEL [*] and KATSAS, Circuit Judges.
Under the Clean Air Act, areas failing to attain the Environmental Protection Agency's national ambient air quality standards must implement measures aimed to achieve and maintain compliance. In 2020, EPA issued two rules lifting certain of those measures in the Houston and Dallas areas. Sierra Club and other environmental groups challenge those rules in a petition for review filed in our court.
We cannot reach the merits of their challenge because of a threshold bar against our consideration of the petition. Under the Clean Air Act's venue provision, 42 U.S.C. § 7607(b)(1), venue over the petition would lie in our court only if the challenged rules are nationally (as opposed to locally or regionally) applicable or if EPA finds that the rules are based on a determination of nationwide scope or effect and publishes that finding. Because neither of those conditions is satisfied, the petition must be brought in the United States Court of Appeals for the Fifth Circuit. We thus transfer the petition to that court.
The Clean Air Act directs EPA to establish national ambient air quality standards (NAAQS) for certain airborne pollutants "the attainment and maintenance of which . . . are requisite to protect the public health." 42 U.S.C. §§ 7408(a), 7409(b)(1). EPA must review and revise the NAAQS every five years "as may be appropriate" under the statute. Id. § 7409(d)(1).
Once EPA sets the standards, the states are responsible for implementing them. To do so, each state must adopt a state implementation plan (SIP) specifying the state's chosen methods of achieving and maintaining each NAAQS. Id. §§ 7407, 7410. Each state also must submit its SIP (and any later revisions) to EPA for approval. Id. § 7410(a)(1), (k).
As part of the implementation process, a state must designate all areas within its borders as "attainment" or "nonattainment" (or "unclassifiable") as to each pollutant. Id. § 7407(d). SIPs for nonattainment areas must include emission reduction measures designed to bring the areas into compliance with the NAAQS. Id. § 7502(c)(1), (6). Once EPA approves a nonattainment designation for a particular area, it can be redesignated to attainment only upon satisfaction of five statutory conditions, including approval by the agency of a "maintenance plan" assuring that the area will continue to meet the NAAQS for at least ten years. Id. § 7407(d)(3)(E); see id. § 7505a(a).
In 1990, Congress amended the Act "in favor of more comprehensive regulation" of pollutants "particularly injurious to public health." S. Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 887 (D.C. Cir. 2006) (South Coast I). One of those pollutants was ozone. The 1990 amendments adopted a "graduated classification scheme" for ozone nonattainment areas dictating "mandatory controls that each state must incorporate into its SIP." Id. Under that scheme, areas that fail to meet attainment deadlines face increasingly strict sets of mandatory controls, which eventually include a requirement to impose a fee program for major stationary sources of ozone. See 42 U.S.C. § 7511d.
The 1990 amendments also enacted an anti-backsliding provision that applies if EPA relaxes a NAAQS as part of its five-year review. In that event, EPA must require areas yet to attain the previous, stricter standard to implement "controls which are not less stringent than the controls applicable to areas designated nonattainment before such relaxation." Id. § 7502(e).
In 1997, EPA adopted stricter NAAQS for ozone. National Ambient Air Quality Standards for Ozone, 62 Fed.Reg. 38,856 (July 18, 1997). The agency later adopted an implementation rule that, among other things, construed the Act's anti-backsliding provision to apply not only when EPA relaxes a NAAQS but also when it strengthens one. Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard-Phase 1, 69 Fed.Reg. 23,951, 23,972 (Apr. 30, 2004). EPA reasoned that if Congress desired to maintain existing controls when a NAAQS is relaxed, Congress also must have intended to maintain such controls when a NAAQS is strengthened. Id. This court sustained EPA's interpretation. South Coast I, 472 F.3d at 900.
EPA's next major action on ozone came in 2008, when it again strengthened the ozone NAAQS. National Ambient Air Quality Standards for Ozone, 73 Fed.Reg. 16,436 (Mar. 27, 2008). In its implementation rule, the agency provided for three procedures by which areas designated nonattainment under the now-revoked 1997 NAAQS could shed anti-backsliding requirements associated with that standard. Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan
Requirements, 80 Fed.Reg. 12,264, 12,301-05 (Mar. 6, 2015). On judicial review, we rejected two of the procedures because they would have allowed for termination of anti-backsliding obligations even if the relevant area failed to meet all five statutory criteria for redesignation from nonattainment to attainment. S. Coast Air Quality Mgmt. Dist. v. EPA, 882 F.3d 1138, 1149, 1152 (D.C. Cir. 2018) (South Coast II). One of the rejected procedures would have established a so-called "redesignation substitute," under which an area could qualify for removal of anti-backsliding controls tied to the revoked 1997 NAAQS without satisfying all five statutory criteria for redesignation. See 80 Fed.Reg. at 12,304-05.
After our decision in South Coast II, EPA published final rules lifting ozone anti-backsliding requirements for the Houston and Dallas nonattainment areas. See Air Plan Approval; Texas; Houston-Galveston-Brazoria Area Redesignation and Maintenance Plan for Revoked Ozone National Ambient Air Quality Standards; Section 185 Fee Program, 85 Fed.Reg. 8,411 (Feb. 14, 2020); Air Plan Approval; Texas; Dallas-Fort Worth Area Redesignation and Maintenance Plan for Revoked Ozone National Ambient Air Quality Standards, 85 Fed.Reg. 19,096 (Apr. 6, 2020). Both of those rules approved revisions to Texas's SIP.
In the rules, EPA conceived a new "redesignation substitute" in place of the one this court had vacated in South Coast II. Under the substitute, anti-backsliding controls for a revoked (e.g. 1997) standard may be terminated as long as an area meets the five statutory redesignation criteria with respect to that revoked standard, even if the area has not achieved attainment under the current (e.g. 2008) standard or fulfilled the redesignation criteria associated with that standard. 85 Fed.Reg. at 8,411, 8,413-14; 85 Fed.Reg. at 19,097-98. Applying that approach, EPA terminated the Houston and Dallas areas' anti-backsliding obligations associated with now-revoked ozone standards. 85 Fed.Reg. at 8,411, 8,413-14; 85 Fed.Reg. at 19,097-98. In addition, the rules approved maintenance plans for both areas designed to ensure their continued compliance with the revoked NAAQS. 85 Fed.Reg. at 8,424; 85 Fed.Reg. at 19,107. Finally, EPA approved a fee program for Houston. 85 Fed.Reg. at 8,412 (citing 42 U.S.C. § 7407(d)(3)(E)(v)).
Sierra Club, Downwinders At Risk, and Texas Environmental Justice Advocacy Services (collectively, Sierra Club) petitioned for review of the rules. The petition contends that EPA's terminations of Houston's and Dallas's antibacksliding requirements violate the agency's regulations and the Clean Air Act. Sierra Club also contemporaneously filed a protective petition for review in the Fifth Circuit, which is holding that petition in abeyance pending the outcome here. See Sierra Club v. EPA, No. 20-60303 (5th Cir. Apr. 16, 2020).
In 2021, following the change in presidential administration, we granted EPA's motion to hold this case in abeyance while it reviewed the challenged rules. EPA subsequently announced its intention to continue defending the rules in substantial part, except for the approval of Houston's fee program. We then returned the case to the active docket (and we also granted EPA's unopposed motion for remand without vacatur as to its approval of the Houston fee program).
Sierra Club challenges EPA's decisions to lift antibacksliding requirements in Houston and Dallas. EPA responds that the proper-and exclusive-venue for Sierra Club's challenge is the Fifth Circuit. We agree with EPA.
The Clean Air Act's venue provision states, in relevant part:
A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard . . . or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for...
To continue reading
Request your trial