South Coast Air Quality Management District v. Environmental Protection Agency
472 F.3d 882 (2006)
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Rule of Law:
When implementing a revised National Ambient Air Quality Standard (NAAQS) for ozone, the Environmental Protection Agency (EPA) must adhere to the specific, mandatory control schemes and anti-backsliding provisions of the Clean Air Act, particularly Subpart 2, where ozone levels are as unhealthful as those addressed by Congress's 1990 Amendments, and cannot interpret statutory gaps to maximize its own discretion at the expense of congressional intent.
Facts:
- In 1990, Congress enacted amendments to the Clean Air Act, establishing a comprehensive regulatory scheme in Subpart 2 to address ground-level ozone, a particularly injurious pollutant, using a graduated classification scheme (Marginal, Moderate, Serious, Severe, Extreme) with mandatory controls and specific attainment deadlines based on a 1-hour, 0.12 parts per million (ppm) ozone NAAQS.
- In 1997, based on new scientific understanding that prolonged ozone exposure was more harmful, EPA promulgated a new 8-hour, 0.08 ppm ozone NAAQS, replacing the 1-hour standard, and announced implementation guidance indicating its intention to phase out the 1-hour standard only after attainment and to implement the 8-hour standard under the generic Subpart 1.
- In 2001, the Supreme Court, in Whitman v. American Trucking Ass’ns, found that Subpart 2 “unquestionably” applied to revised ozone standards but recognized “gaps” (classification, measurement, and timing) in Subpart 2’s scheme due to the new 8-hour standard, thus allowing EPA some discretion in addressing these gaps but cautioning against rendering Subpart 2’s restrictions “utterly nugatory.”
- In 2003, environmental groups sued EPA, seeking adherence to its obligation to designate nonattainment areas under the 8-hour standard.
- On April 30, 2004, EPA promulgated the 2004 Rule for implementing the 8-hour ozone NAAQS, announcing it would withdraw the 1-hour NAAQS one year after the effective date of the 8-hour NAAQS designations.
- Under the 2004 Rule, Subpart 2 would apply only to areas nonattaining under both the 8-hour and the revoked 1-hour standards, resulting in 76 of 122 nonattaining areas being governed by the more flexible Subpart 1.
- The 2004 Rule interpreted the anti-backsliding provision (Section 172(e)) to require retention of 'controls' from the 1-hour era but determined that New Source Review (NSR), Section 185 penalties, conformity demonstrations, and attainment contingency plans were not 'controls' and thus could be removed from State Implementation Plans (SIPs).
- The State of Ohio commented on the proposed rule, stating that EPA’s approach to attainment deadlines would be a “reasonable interpretation of Subpart 2” in its official comments, but its cover letter expressed general concern about the plan's judicial scrutiny without specific objections to the deadlines.
Procedural Posture:
- In 1997, EPA promulgated the 1997 Rule setting a new 8-hour, 0.08 ppm ozone NAAQS and announced implementation guidance indicating its intention to implement the 8-hour standard under generic Subpart 1 and phase out the 1-hour standard only after areas met it.
- This court held in American Trucking Ass’ns v. EPA that EPA could not use the discretion-filled Subpart 1 for ozone.
- On certiorari, the Supreme Court in Whitman v. American Trucking Ass’ns agreed that Subpart 2 “unquestionably” applies to revised ozone standards but identified “gaps” in its scheme that allowed EPA some discretion in applying Subpart 2.
- In 2003, several environmental groups sued EPA, seeking adherence to its obligation to designate nonattainment areas under section 107(d)(1) of the Act.
- EPA entered into a consent decree requiring it to issue the designations by April 15, 2004.
- On April 30, 2004, EPA promulgated the Final Phase 1 Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard (2004 Rule).
- Various parties, including State petitioners (Connecticut, Delaware, Maine, Massachusetts, New York, and the District of Columbia), Environmental petitioners, Industry petitioners (National Petrochemical & Refiners Association and Chamber of Greater Baton Rouge), and the State of Ohio, filed consolidated petitions for review of the 2004 Rule and related EPA reconsideration decisions in the United States Court of Appeals for the District of Columbia Circuit.
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Issue:
Does the EPA's 2004 Rule, implementing an 8-hour ozone NAAQS, unlawfully interpret the Clean Air Act by classifying certain nonattainment areas under the more flexible Subpart 1 and by revoking or weakening anti-backsliding controls from the previous 1-hour standard, contrary to congressional intent and prior Supreme Court guidance?
Opinions:
Majority - ROGERS, Circuit Judge
No, the EPA's 2004 Rule unlawfully interprets the Clean Air Act by subjecting areas with eight-hour ozone levels exceeding 0.09 ppm to Subpart 1 and by impermissibly excluding certain prior controls from the anti-backsliding requirements. The court found that Congress, in the 1990 Amendments, purposefully crafted a comprehensive, mandatory regulatory scheme in Subpart 2 to limit EPA’s discretion in addressing ozone pollution. The Supreme Court in Whitman identified narrow gaps where EPA could exercise discretion, but this discretion did not extend to allowing areas with ozone levels as unhealthful as (or worse than) what Congress intended to address in 1990 (which EPA acknowledged was equivalent to 0.09 ppm on the 8-hour scale) to be regulated under the more flexible Subpart 1. EPA’s rationale for maximizing state flexibility and accounting for technological advancements was deemed inconsistent with Congress's explicit intent to limit agency discretion and establish a forward-looking plan. While the court affirmed EPA's authority to revoke the 1-hour standard under Section 109(d)(1) and 172(e) if adequate anti-backsliding provisions were maintained, it held that EPA unlawfully excluded several key measures from the definition of “controls” that must be retained under the anti-backsliding mandate of Section 172(e). Specifically, New Source Review (NSR), Section 185 penalties for nonattainment, contingency plans, and motor vehicle conformity determinations are all “controls” designed to constrain ozone levels and must remain in effect to prevent backsliding. EPA’s attempts to redefine “controls” or argue impracticability were rejected as contrary to the Act’s plain meaning, legislative history, and EPA’s own past practice. The court denied Industry petitioners' challenge to EPA's translation of Table 1 classification thresholds, finding EPA's percentage-deviation approach reasonable and its reliance on voluntary bump-ups permissible. The court dismissed the State of Ohio's petition regarding attainment deadlines because Ohio failed to preserve its objection during the public comment period, having expressed support for EPA's approach in its formal comments.
Analysis:
This case significantly reinforces the principle of congressional supremacy in environmental regulation, particularly where Congress has provided detailed, mandatory frameworks like Subpart 2 of the Clean Air Act for ozone. It establishes a strict interpretation of EPA's discretion when revising NAAQS and applies a broad definition to the anti-backsliding requirements, ensuring that crucial pollution controls are not weakened. The ruling limits EPA's ability to use statutory ambiguities as a basis for regulatory relaxation, compelling the agency to maintain existing environmental protections even when updating standards. This decision will likely guide future EPA actions on NAAQS implementation, emphasizing the need for robust scientific and legal justification for any changes to control measures and setting a high bar for demonstrating compliance with anti-backsliding provisions.
