Sierra Club v. U.S. Envtl. Prot. Agency

• Decision Date: 18 March 2015
• Docket Number: Nos. 12–3169,3420.,3182,s. 12–3169
• Citation: 781 F.3d 299
• Parties: SIERRA CLUB, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Gina McCarthy, Administrator of the United States Environmental Protection Agency, Respondents, State of Ohio; Ohio Utility Group, et al., Intervenors.
• Court: U.S. Court of Appeals — Sixth Circuit

781 F.3d 299

SIERRA CLUB, Petitioner

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Gina McCarthy, Administrator of the United States Environmental Protection Agency, RespondentsState of Ohio; Ohio Utility Group, et al., Intervenors.

Nos. 12–3169

3182

3420.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 9, 2014.

Decided and Filed: March 18, 2015.

ARGUED:Robert Ukeiley, Berea, Kentucky, for Petitioner. Amy J. Dona, United States Department of Justice, Washington, D.C., for Respondents. Aaron S. Farmer, Office of the Ohio Attorney General, Columbus, Ohio, for Intervenor State of Ohio. ON BRIEF:Robert Ukeiley, Berea, Kentucky, David C. Bender, McGillivray Westerberg & Bender LLC, Madison, Wisconsin, for Petitioner. Amy J. Dona, United States Department of Justice, Washington, D.C., for Respondents. Aaron S. Farmer, Elizabeth R. Ewing, Office of the Ohio Attorney General, Columbus, Ohio, for Intervenor State of Ohio. Louis E. Tosi, Michael E. Born, Cheri A. Budzynski, Shumaker, Loop & Kendrick, LLP, Columbus, Ohio, for Ohio Utility Intervenors.

Before: GIBBONS and KETHLEDGE, Circuit Judges; DOW, District Judge.^*

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

In 2011, the Environmental Protection Agency (“EPA”) determined that the Cincinnati–Hamilton metropolitan area had attained national air quality standards for particulate matter, thanks in no small part to regional cap-and-trade programs that had reduced the flow of interstate pollution. EPA also redesignated the area to “attainment” status even though the three States that administer its pollution controls had never implemented particular provisions, known as “reasonably available control measures,” applicable to nonattainment areas. Sierra Club thought the agency had acted illegally with respect to both actions, and it filed a petition for direct appellate review in this court. The parties dispute both Sierra Club's standing to challenge the agency action and the correct interpretation of the relevant statute, the Clean Air Act.

We find that the Club has standing, and we agree with its claim that “reasonably available control measures” are a prerequisite to redesignation. Therefore, we vacate EPA's redesignation of the Ohio and Indiana portions of the Cincinnati area.

I.

A.

The Clean Air Act (“CAA”) authorizes EPA to promulgate National Ambient Air Quality Standards (“NAAQS”) for various types of emissions deemed injurious to public health and welfare. 42 U.S.C. § 7409(a) -(b). Once the agency has promulgated a particular NAAQS, the Governor of each State must submit a “state implementation plan” (“SIP”) with particular methods for achieving the NAAQS. Id. § 7410. EPA will then designate portions of each State as “attainment areas” (that attain the standard), “nonattainment areas” (that do not), or as “unclassifiable.” Id. § 7407(d)(1)(B). If an area is designated as nonattainment, the State or States containing that area must revise their SIPs to meet additional requirements located in Part D of Subchapter 1, Chapter 85 of Title 42. See, e.g., id. § 7502. One such requirement, which we will refer to as “RACM” or “RACT,” is that the state SIP “provide for the implementation of all reasonably available control measures [“RACM”] as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology [“RACT”] ) and shall provide for attainment of the national primary ambient air quality standards.” Id. § 7502(c)(1). Another such provision, termed “New Source Review” or “NSR,” forces the State to set up a permit regime “for the construction and operation of new or modified major stationary sources anywhere in the nonattainment area, in accordance with section 7503 of [Title 42].” Id. § 7502(c)(5).

When a State asks EPA to redesignate a nonattainment area to attainment status (and thus remove these additional requirements from its SIP), the agency may do so only if five conditions are satisfied:

(i) the Administrator determines that the area has attained the national ambient air quality standard;

(ii) the Administrator has fully approved the applicable implementation plan for the area under section 7410(k) of [Title 42];

(iii) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;

(iv) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 7505a of [Title 42]; and

(v) the State containing such area has met all requirements applicable to the area under section 7410 of this title and part D of [Subchapter 1].

Id. § 7407(d)(3)(E).

In 1997, EPA promulgated a NAAQS concerning fine particulate matter (referred to as PM_2.5to distinguish it from coarse particulate matter, PM ₁₀), motivated largely by concerns of health impacts. See National Ambient Air Quality Standards for Particulate Matter, 62 Fed.Reg. 38,652, 38,652 (July 18, 1997).

B.

To combat the flow of air pollutants across state lines, EPA has also created so-called “cap-and-trade” programs. In this sort of scheme, the agency first “caps” the total emissions allowable from a particular facility, state, or region, and then requires any source that pollutes too much either to invest in cleaner technology or to purchase emission reduction credits from other, more environmentally friendly sources (the “trade” part). Three cap-and-trade programs are pertinent to this case.

The first is the NO_xSIP Call, which covered 22 States plus the District of Columbia and targeted known precursor emissions to ozone and particulate matter. See Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone, 63 Fed.Reg. 57,356, 57,477 (Oct. 27, 1998). EPA promulgated another cap-and-trade program with the Clean Air Interstate Rule (“CAIR”) in 2005; this was also partly aimed at reducing fine particulate matter in the atmosphere. See Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NO_xSIP Call, 70 Fed.Reg. 25,162, 25,162 (May 12, 2005). After the D.C. Circuit ruled CAIR illegal, see North Carolina v. EPA, 531 F.3d 896, 901 (D.C.Cir.2008) (per curiam), EPA promulgated a third program called the Cross–State Air Pollution Rule (“CSAPR”), see Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals, 76 Fed.Reg. 48,208, 48,208 (Aug. 8, 2011). The Supreme Court recently upheld this program. See EPA v. EME Homer City Generation, L.P., ––– U.S. ––––, 134 S.Ct. 1584, 188 L.Ed.2d 775 (2014).

C.

In 2011, EPA issued Direct Final Rules approving requests from Ohio, Indiana, and Kentucky to redesignate each of their respective portions of the Cincinnati–Hamilton area from nonattainment to attainment status under the 1997 fine particulate matter NAAQS.See 76 Fed.Reg. 64,825, 64,825 (Oct. 19, 2011) [hereinafter “Direct Final Rule (Ohio/Indiana)”] (approving the redesignation requests of Ohio and Indiana); 76 Fed.Reg. 77,903, 77,903 (Dec. 15, 2011) (approving Kentucky's redesignation request). Notably, the agency determined that the local atmosphere had reached attainment status in significant part thanks to EPA's three cap-and-trade programs, which had reduced inflows of particulate matter from regional sources. See Direct Final Rule (Ohio/Indiana), 76 Fed.Reg. at 64,830 –32. Sierra Club submitted several comments to EPA claiming that redesignation was improper.

In those comments Sierra Club made two arguments of particular relevance to this appeal. First, it contended that improvements in the area's air quality attributable to the cap-and-trade programs were not “permanent and enforcement reductions in emissions” required under 42 U.S.C. § 7407(d)(3)(E)(iii), and that the Cincinnati area could therefore not be redesignated. Second, Sierra Club argued that the existing nonattainment SIPs had never implemented RACM/RACT rules under § 7502(c)(1), and that therefore EPA could not have “fully approved the applicable implementation plan” for purposes of § 7407(d)(3)(E)(ii). EPA rejected these comments in its Final Rule and redesignated the area to attainment status. See 76 Fed.Reg. 80,253, 80,255 –56, 80,258 (Dec. 23, 2011) [hereinafter “Final Rule (Ohio/Indiana)”]. Sierra Club then filed timely petitions asking this court to vacate the redesignation. The State of Ohio and a group of utilities operating in the Cincinnati area (the “Utilities Group”) intervened in support of EPA's position.

II.

A.

At the outset, we must address a jurisdictional question. “Before bringing a case in federal court, a plaintiff must establish standing to do so.” Klein v. Dep't of Energy, 753 F.3d 576, 579 (6th Cir.2014). An organization like Sierra Club can establish standing through two routes: on behalf of its members, in what we have called “representational standing,” or on its own behalf if directly injured. Am. Canoe Ass'n v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 540, 544 (6th Cir.2004). For this case, we need address only the former. “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). No one disputes that the second and third requirements are met here.¹ A Sierra Club member has standing...