Sierra Club v. E.P.A.
| Decision Date | 02 July 2002 |
| Docket Number | No. 01-1158.,No. 01-1070.,01-1070.,01-1158. |
| Citation | 294 F.3d 155 |
| Parties | SIERRA CLUB, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Christine Todd Whitman, Administrator Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David S. Baron argued the cause for petitioner. With him on the briefs was Howard I. Fox.
Martin F. McDermott, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were John C. Cruden, Assistant Attorney General, and Sara Schneeberg, Attorney, U.S. Environmental Protection Agency. David A. Carson, Attorney, U.S. Department of Justice, entered an appearance.
Thurbert E. Baker, Attorney General, State of Georgia, Patricia T. Barmeyer, Special Assistant Attorney General, Jeremiah W. (Jay) Nixon, Attorney General, State of Missouri, James R. Layton, Solicitor, James E. Ryan, Attorney General, State of Illinois, A. Benjamin Goldgar, Assistant Attorney General, and Donald Trahan were on the brief for amici curiae State of Georgia, et al., in support of respondent. Katherine L. Rhyne entered an appearance.
Randolph A. Beales, Attorney General, Commonwealth of Virginia, Roger L. Chaffe, Senior Assistant Attorney General and Carl Josephson, Assistant Attorney General, were on the brief for amicus curiae Commonwealth of Virginia, in support of respondent.
Albert M. Ferlo, Jr., Sheila D. Jones, and John J. Bosley were on the brief for amicus curiae Metropolitan Washington Air Quality Committee, in support of respondent.
Before: GINSBURG, Chief Judge, EDWARDS and SENTELLE, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
The Sierra Club petitions for review of a decision by the Environmental Protection Agency approving revisions to the state implementation plans for ozone in the Washington, D.C. Metropolitan Area. The Club contends the EPA was without authority to approve revised SIPs that extend the Area's deadline for attainment and do not provide for the States concerned to adopt reasonably available control measures, annual rates of progress in reducing emissions, and specific contingency measures to take effect should the Area fail to achieve scheduled reductions in emissions.
We hold that the EPA exceeded its authority and that its decision is otherwise arbitrary and capricious in the above respects. Therefore, we grant the petition and remand this matter to the EPA for further proceedings.
Section 109 of the Clean Air Act directs the EPA to promulgate National Ambient Air Quality Standards (NAAQS) for ozone, see 42 U.S.C. § 7409, and Title V of the Act delegates to the states primary responsibility for implementing those standards, see id. §§ 7407, 7410. A state discharges this responsibility by developing and enacting a state implementation plan (SIP) that provides for "implementation, maintenance, and enforcement" of the standards in each "air quality control region" within its jurisdiction, subject to the EPA's approval and supervision. Id. § 7410(a)(1).
If an area "does not meet the NAAQS or it contributes to ambient air quality in a nearby area that does not meet the NAAQS," then the EPA designates the area as one of "nonattainment," id. § 7407(d)(1)(A), and classifies the degree of nonattainment in the area as marginal, moderate, serious, severe, or extreme, see id. § 7511(a), (b)(2). This classification determines both the date by which the area must attain the NAAQS and the stringency of the measures that the area must implement in the meantime to reduce emissions of volatile organic compounds (VOCs) and oxides of nitrogen (NOx), both of which are the precursors of ozone. See id. § 7511(a).
All states were required to revise their SIPs to bring any areas of "serious" nonattainment into attainment "as expeditiously as practicable but not later than" November 15, 1999. Id. §§ 7511(a)(1), 7511a(c)(2)(A). The Act specifies that a revised SIP must contain certain elements, including: "the implementation of all reasonably available control measures [RACM]," id. § 7502(c)(1); annual demonstrations of "reasonable further progress," id. § 7502(c)(2), defined — with an exception not here relevant — as a reduction in the emission of VOCs at a rate of "at least 3 percent of baseline emissions each year," id. § 7511a(c)(2)(B)(i); and contingency measures "to be undertaken if the area fails to make reasonable further progress, or to attain" the NAAQS by November 15, 1999, id. § 7502(c)(9). The states were required to submit the revised SIPs to the EPA for approval, which the Agency was required to grant if the "revision [met] all the requirements ... [and] would be adequate to attain and maintain the [NAAQS] by the attainment date specified." Id. § 7509a(a)(1), (2).
An area of serious nonattainment that failed to reach attainment by the deadline was to be reclassified by operation of law to "severe" nonattainment status. See id. § 7511(b)(2)(i). The deadline for attainment would then be extended until November 15, 2005, see id. § 7511(a)(1), but the area would be required again to revise its SIP to implement still more rigorous programs for monitoring and reducing emissions, see id. § 7511(b)(2)(A)(i).
The Washington, D.C. Metropolitan Area comprises the District of Columbia and several counties each in Maryland and Virginia. In 1991 the EPA declared the Washington Area to be in "serious" nonattainment of the NAAQS for ozone. See Designation of Areas for Air Quality Planning Purposes, 56 Fed.Reg. 56,694, 56,738, 56,772, 56,841 (Nov. 6, 1991) (codified respectively at 40 C.F.R. §§ 81.309, .321,.347 (2002)). In response, the District of Columbia Department of Health, the Maryland Department of the Environment, and the Virginia Department of Environmental Quality (hereinafter referred to as "the States") submitted nonattainment SIPs for the Washington Area, see Approval & Promulgation of Air Quality Implementation Plans, 66 Fed.Reg. 586 (Jan. 3, 2001) (Approval), pursuant to section 172(b) of the Act, 42 U.S.C. § 7502(b).
The three proposed SIPs did not provide for attainment by November 15, 1999. See Proposed Rule, Approval & Promulgation of Air Quality Implementation Plans, 64 Fed.Reg. 70,460, 70,476-77 (Dec. 16, 1999) (Proposed Approval). Instead, the States requested that the EPA extend the attainment deadline for the Washington Area until November 15, 2005 without reclassifying as "severe" the nonattainment status of the Area. See id. The EPA previously had recognized that for certain "downwind areas, transport [of ozone] from upwind areas ha[d] interfered with their ability to demonstrate attainment" by the deadlines established in the Act. Extension of Attainment Dates for Downwind Transport Areas, 64 Fed.Reg. 14,441, 14,442 (Mar. 25, 1999). As a result, according to the EPA, many downwind areas "fac[ed] the prospect of being reclassified ... to a higher nonattainment classification in spite of the fact that pollution that is beyond their control contributes to the levels of ozone they experience." Id. With this in mind, the Agency granted the States' request for an extension, see Approval, 66 Fed.Reg. at 630-31, determining that the transport of ozone and its precursors into the Washington Area could delay the date by which the Area would reach attainment, id.
The States did not propose in their revised SIPs to adopt any RACM, and the EPA concluded that none was warranted because "additional emission control measures would not advance the attainment date." Id. at 608/1. Nor did the revised SIPs provide for annual rates of progress (ROP) in reducing emissions for the years after 1999, see id. at 603; or for any contingency measures "to make up for any emission reduction shortfall, either in achievement of ROP milestones or for failure to attain" the NAAQS, see id. at 615/2. The EPA determined that these omissions, too, were warranted. It deemed the ROP requirement "unreasonable" in light of the transport of ozone into the Washington Area, id. at 603/2, and it held that contingency measures are not mandatory elements of a SIP revision that establishes the attainment deadline and ROP for an area, see id. at 615/3. Consequently, the Agency approved the revised SIPs.
The Sierra Club now petitions for review of that decision. Amicus briefs have been filed by the Metropolitan Washington Air Quality Committee, the State of Virginia, and the States of Georgia, Illinois, Louisiana, and Missouri, all in support of the EPA's decision approving the revised SIPs.
The Sierra Club claims that the Approval is unlawful for four reasons: (1) the EPA had no authority to extend the attainment deadline for the Washington Area; (2) the EPA applied an unreasonable standard for determining whether a control measure is "reasonably available" for purposes of § 172(c)(2) of the Act; (3) the Act prohibits the EPA from approving a SIP that does not provide for ROP reductions; and (4) the Act prohibits the EPA from approving a SIP that does not include contingency measures.
We review the EPA's interpretation of the Clean Air Act under the standards set out in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If the Congress "has directly spoken to the precise question at issue," id. at 842, 104 S.Ct. at 2781, then we must "give effect to [its] unambiguously expressed intent," id. at 843, 104 S.Ct. at 2781. If, however, the intent of the Congress is ambiguous with respect to the question before us, then we defer to the Agency's interpretation if it is "based on a permissible construction of the statute." Id.
We agree with the Sierra Club that the plain terms of the Act preclude an extension of the sort the EPA granted here. Pursuant to § 181(a)(1), 42 U.S.C. § 7511(a)(1), "each" area of "serious" nonattainment was required...
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