Sierra Club v. Johnson, No. 03-10262.

• Decision Date: 20 January 2006
• Docket Number: No. 03-10265.,No. 03-10262.,No. 03-10263.,No. 03-10264.
• Citation: 436 F.3d 1269
• Parties: The SIERRA CLUB, Petitioner, v. Stephen L. JOHNSON, in his Official Capacity as Administrator of the United States Environmental Protection Agency, United States Environmental Protection Agency, Respondents. Georgia Forestwatch, Petitioner, v. Stephen L. Johnson, in his Official Capacity as Administrator of the United States Environmental Protection Agency, United States Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1269

436 F.3d 1269

The SIERRA CLUB, Petitioner, v. Stephen L. JOHNSON, in his Official Capacity as Administrator of the United States Environmental Protection Agency, United States Environmental Protection Agency, Respondents.

Georgia Forestwatch, Petitioner, v. Stephen L. Johnson, in his Official Capacity as Administrator of the United States Environmental Protection Agency, United States Environmental Protection Agency, Respondents.

No. 03-10262.

No. 03-10263.

No. 03-10264.

No. 03-10265.

United States Court of Appeals, Eleventh Circuit.

January 20, 2006.

COPYRIGHT MATERIAL OMITTED

Justine Thompson, Curtis A. Cox, GA Ctr. for Law in the Pub. Interest, Atlanta, GA, Lisa L. Barclay, William B. Schultz, Zuckerman Spaeder, LLP, Washington, DC, for the Sierra Club.

Ethan Shenkman, U.S. Dept. of Justice, Ammie Roseman-Orr, Joshua M. Levin, U.S. Dept. of Justice/Env. & Nat. Res. Div., Washington, DC, Ellen A. Rouch, EPA, Atlanta, GA, for Johnson & U.S. EPA.

Diane L. DeShazo, State of GA Dept. of Law, Atlanta, GA, for Envir. Prot. Div., Dept. of Nat. Res., Amicus Curiae.

Petitions for Review of an Order of the United States Environmental Protection Agency.

Before BIRCH, CARNES and FAY, Circuit Judges.

CARNES, Circuit Judge:

The Sierra Club and Georgia Forestwatch bring this consolidated petition for review of the Environmental Protection Agency's orders denying their requests that EPA object to four Clean Air Act Title V permits. The Georgia Environmental Protection Division issued these permits to King Finishing, Monroe Power, and Shaw Industries' Plants No. 2 and No. 80.¹

The Sierra Club contends that EPA is required to object to the King Finishing permit because Georgia EPD failed to implement a mailing list to notify the public of its right to comment on the permit. The Sierra Club and Georgia Forestwatch also contend that EPA must object to all four of the permits because of Georgia EPD's failure to require the permittee facilities to report all of their monitoring data and to provide all relevant information to the public during the comment period.²

I.

Navigating through the intricacies of the Clean Air Act is no task for the uninformed or the short-winded. We will focus our beginning discussion on Title V of that Act, because it underlies the issues before us in this appeal.

In 1990 Congress amended the Clean Air Act to include Title V. Clean Air Act Amendments of 1990, Pub.L. No. 101-549, §§ 501-507, 104 Stat. 2399, 2635-48 (1990). It requires stationary sources of air pollution such as manufacturing and electricity plants to obtain permits which include emission limitations and other conditions that ensure compliance with the Clean Air Act's air quality control standards. See 42 U.S.C. § 7661a(a). The Title V permit program generally does not impose new substantive air quality control requirements. Instead, in order to ensure compliance with existing requirements, Title V requires permits to contain monitoring, record keeping, reporting, and other conditions. The Title V program strives to "enable the source, States, EPA, and the public to understand better the requirements to which the source is subject, and whether the source is meeting those requirements." Operating Permit Program, 57 Fed.Reg. 32,250, 32,251 (July 21, 1992) (to be codified at 40 C.F.R. pt. 70). The goal is "[i]ncreased source accountability and better enforcement." Id.

When state permitting authorities issue Title V permits, the terms of those permits must comply with their EPA-approved state implementation plans. See 40 C.F.R. Part 70 (codifying EPA rules that set minimum requirements for state operating permit programs and standards for state-issued permits). As for the process, state permitting authorities must provide at least 30 days for public comment on draft Title V permits and must give 30 days notice of any public hearing. 40 C.F.R. § 70.7(h)(4). Notice must be given "by publication in a newspaper of general circulation in the area where the source is located or in a State publication designed to give general public notice; to persons on a mailing list developed by the permitting authority, including those who request in writing to be on the list; and by other means if necessary to assure adequate notice to the affected public." Id. § 70.7(h)(1). Permitting authorities may not issue a Title V permit unless all of the public participation requirements set forth in § 70.7(h) of the regulations are satisfied. Id. § 70.7(a)(1)(ii).

After the state authority considers any comments and approves a permit, it submits that permit to EPA for review. See 42 U.S.C. § 7661d(a)(1); 40 C.F.R. § 70.8(a)(1). EPA has 45 days to object to the proposed permit. 42 U.S.C. § 7661d(b)(1). If it does object, the proposed permit is sent back to the state authority which must correct the problem. Id. If EPA does not object, any person may challenge its failure to do so by petitioning the EPA Administrator within 60 days after the 45-day review period has expired. Id. § 7661d(b)(2); 40 C.F.R. § 70.8(d). The petition must be based only on objections to the permit that were raised during the comment period, unless the petitioner shows that it was impracticable to raise those objections at that time or that the objections arose after the comment period. 42 U.S.C. § 7661d(b)(2). If the petitioner demonstrates that the permit does not comply with the requirements of the Clean Air Act or the applicable state implementation plan, EPA must issue an objection to the permit. Id.

II.

A.

Because the Clean Air Act sets forth no independent standard of review, see 42 U.S.C. § 7607(b), and because an EPA decision not to object to a Title V permit is a final agency decision, we apply the deferential standard of review set forth in the Administrative Procedure Act, 5 U.S.C. §§ 701-706. See Legal Envtl. Assistance Found., Inc. v. EPA, 118 F.3d 1467, 1473 (11th Cir.1997) (applying the Administrative Procedure Act's standard of review to an EPA final decision to deny a petition to promulgate a rule). EPA's decision may be set aside only if found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Under this standard, we give deference to a final agency decision by reviewing for clear error, and we cannot substitute our own judgment for that of the agency. Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1216 (11th Cir.2002) (citing Motor Vehicle Mfrs. Ass'n of United States, Inc., v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983)).

Although the standard of review applied to final agency decisions is deferential, the matter is a little more complicated than that. Under the arbitrary and capricious standard, we must consider whether an agency's decision "was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir.1996) (quotation marks omitted). "This inquiry must be searching and careful, but the ultimate standard of review is a narrow one." Id. (quotation marks omitted).

B.

When we review an agency's interpretation of a statute that the agency is responsible for administering, we apply a two-step test. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); see also Lewis v. Barnhart, 285 F.3d 1329, 1333 (11th Cir.2002); Legal Envtl. Assistance Found. v. EPA, 118 F.3d at 1473. First, we must determine "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. at 2781. Then, if Congress' intent is clear from the statutory language, we must give effect to it. Id. at 842-43, 104 S.Ct. at 2781. "[I]f the statute is silent or ambiguous with respect to the specific issue," we must decide whether the agency based its interpretation on a permissible construction of the statute. Id. at 843, 104 S.Ct. at 2782. To uphold EPA's interpretation of a statute, we "need not conclude that the agency construction was the only one it permissibly could have adopted" or even that we would have interpreted the statute the same way that the agency did. Id. at 843 n. 11, 104 S.Ct. at 2782 n. 11.

C.

An agency's interpretation of its own regulations is "controlling unless plainly erroneous or inconsistent with the regulation." Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 911, 137 L.Ed.2d 79 (1997) (citations and quotation marks omitted); see also Legal Envtl. Assistance Found., Inc. v. EPA, 276 F.3d 1253, 1262 (11th Cir.2001). This deferential standard applies as long as the agency does not promulgate "a parroting regulation" that does nothing more than "paraphrase the statutory language" that it should be implementing. See Gonzales v. Oregon, No. 04-623, ___ U.S. ___, 126 S.Ct. 904, ___, ___ L.Ed.2d ___ (2006).

We will uphold the agency's interpretation of its regulations "so long as it is reasonable, that is, so long as the interpretation sensibly conforms to the purpose and wording of the regulations." Legal Envtl. Assistance Found., 276 F.3d at 1262 (citation and quotation marks omitted); see also U.S. Steel Mining Co. v. Dir., Office of Workers' Comp. Programs, 386 F.3d 977, 985 (11th Cir.2004) (explaining that "[t]he obligation to defer to an agency's reasonable interpretation of its own regulations is rooted not only in our case law, but also in binding Supreme Court precedent") (citations omitted). We apply this deferential standard of review "even if [the agency's] interpretation is not `the best or most natural one by grammatical or other standards.'" Legal Envtl. Assistance Found., 276 F.3d at 1262 (quoting Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702, 111 S.Ct. 2524, 2537, 115 L.Ed.2d 604 (1991)). Deference permits some degree of disagreement.

III.

A.

King Finishing sought a Title V permit for its Dover,...