Amer Corn Growers v. EPA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 25, 2002 Decided May 24, 2002

No. 99-1348

American Corn Growers Association,

Petitioner

v.

Environmental Protection Agency,

Respondent

State of Michigan, Department of

Environmental Quality, et al.,

Intervenors

Consolidated with Nos. 99-1349, 99-1350,

99-1351, 99-1352, 99-1357, 99-1358, 99-1359,

01-1111, 01-1112, 01-1113

On Petitions for Review of an Order of the

Environmental Protection Agency

Peter Glaser argued the cause for Industry petitioners and

intervenors on the BART Issues in Case Nos. 99-1348,

99-1349, 99-1350, 99-1351, 99-1352, 99-1356, 99-1357,

99-1358 and 99-1359. With him on the joint briefs were Paul

M. Seby, Henry V. Nickel, F. William Brownell, Michael L.

Teague, Kevin L. Fast, David M. Flannery, Kathy G. Beck-

ett, Scott D. Goldman, Harold P. Quinn, Jr., William H.

Lewis, Jr., and Michael A. McCord.

Kevin L. Fast argued the cause for Industry petitioners in

Case Nos. 01-1111, 01-1112 and 01-1113. With him on the

joint briefs were Peter Glaser, Paul M. Seby, Henry V.

Nickel, F. William Brownell, and Michael L. Teague.

David S. Baron argued the cause and filed the briefs for

petitioner Sierra Club.

Jennifer M. Granholm, Attorney General, State of Michi-

gan, Thomas L. Casey, Solicitor General, and John Fordell

Leone, Assistant Attorney General, were on the briefs for

intervenor State of Michigan.

Pamela S. Tonglao, Kenneth C. Amaditz, and H. Michael

Semler, Attorneys, U.S. Department of Justice, argued the

causes for respondents. With them on the brief was M. Lea

Anderson, Attorney, U.S. Environmental Protection Agency.

Erick Titrud argued the cause for intervenors State of

Maine, State of New Hampshire, State of Vermont, and

Tribal and Environmental intervenors. With him on the joint

brief were Ann Brewster Weeks, Vickie L. Patton, William

G. Grantham, G. Steven Rowe, Attorney General, State of

Maine, Philip T. McLaughlin, Attorney General, State of

New Hampshire, Maureen D. Smith, Senior Assistant Attor-

ney General, and William H. Sorrell, Attorney General, State

of Vermont.

Peter Glaser, Henry V. Nickel, F. William Brownell, Mi-

chael L. Teague, Kevin L. Fast, Paul M. Seby, Harold P.

Quinn, Jennifer M. Granholm, Attorney General, State of

Michigan, John Fordell Leone, Assistant Attorney General,

David M. Flannery, Kathy G. Beckett, William H. Lewis, Jr.,

and Michael A. McCord were on the joint brief for Industry

and State intervenors, in support of respondents.

Mark L. Shurtleff, Attorney General, State of Utah, Fred

Nelson, Assistant Attorney General, and Susan M. McMicha-

el were on the brief for amici curiae State of Utah and State

of New Mexico Environment Department, in support of re-

spondent EPA.

Before: Edwards, Randolph, and Garland, Circuit Judges.

Opinion for the Court filed Per Curiam.

Opinion concurring in part and dissenting in part filed by

Circuit Judge Garland.

Per Curiam: In 1999, the Environmental Protection Agen-

cy promulgated a final rule to address regional haze. See

Regional Haze Regulations, 64 Fed. Reg. 35,714 (July 1,

1999). The Haze Rule calls for states to play the lead role in

designing and implementing regional haze programs to clear

the air in national parks and wilderness areas that have been

classified as "mandatory class I Federal areas,"1 such as

Yellowstone National Park, Grand Canyon National Park, and

Shenandoah National Park. See 40 C.F.R. ss 81.401-.437

(listing areas that have been designated as Class I areas

where visibility is an important value). Numerous petitioners

now challenge the Haze Rule. We vacate the rule in part and

sustain it in part.

I. Introduction

"Regional haze," as EPA defines it, is visibility impairment

caused by geographically dispersed sources emitting fine

__________

1 "Class I" areas include all international parks, national wilder-

ness areas which exceed 5,000 acres in size, national memorial parks

which exceed 5,000 acres in size, and national parks which exceed

6,000 acres in size and which were in existence on August 7, 1977.

See 42 U.S.C. s 7472(a). The term "mandatory class I Federal

areas" is defined as "Federal areas which may not be designated as

other than class I." Id. s 7491(g)(5). At the time the Haze Rule

was promulgated, there were 156 Class I areas across the country.

See 64 Fed. Reg. at 35,714.

particles and their precursors into the air. See 64 Fed. Reg.

at 35,715. The emission and movement of sulfur dioxide,

oxides of nitrogen, and fine particulate matter from sources,

such as power plants, contribute to haze. See id. Fine

particulate matter scatters and absorbs light. See id.

Haze has degraded visibility in most of the country's na-

tional parks and wilderness areas. See id. The average

visual range in many Class I areas in the western United

States is 100 to 150 kilometers - which is just one-half to two-

thirds the estimated visual range that would exist without

manmade air pollution. See id. In most of the eastern

United States, the average visual range is less than 30

kilometers - or about one-fifth the visual range that would

exist under estimated natural conditions. See id.

Before 1977, the Clean Air Act (the "CAA" or the "Act")

"did not elaborate on the protection of visibility as an air-

quality related value." Chevron U.S.A., Inc. v. EPA, 658

F.2d 271, 272 (5th Cir. 1981). But in 1977, "[i]n response to a

growing awareness that visibility was rapidly deteriorating in

many places, such as wilderness areas and national parks," id.

at 272, Congress added s 169A to the Act. See Clean Air Act

Amendments of 1977, Pub. L. No. 95-95, s 128, 91 Stat. 685,

742 (current version at 42 U.S.C. s 7491). Section 169A

established as a national goal the "prevention of any future,

and the remedying of any existing, impairment in visibility in

mandatory class I areas which impairment results from man-

made air pollution." See 91 Stat. at 742 (current version at 42

U.S.C. s 7491(a)(1)). Congress directed EPA to issue regula-

tions requiring states to submit State Implementation Plans

("SIPs") containing emission limits, schedules of compliance,

and other measures necessary to make reasonable progress

toward meeting the national visibility goal. See 91 Stat. at

743 (current version at 42 U.S.C. s 7491(b)(2)). In addition,

Congress required states to address possible visibility impair-

ment caused by currently-operating large stationary sources

which had been in operation between 1962 and 1977. See 91

Stat. at 743 (current version at 42 U.S.C. s 7491(b)(2)(A)).

Congress also gave EPA the responsibility of promulgating

regulations under s 169A to "assure ... reasonable progress

toward meeting the national goal." See 91 Stat. at 742-43

(current version at 42 U.S.C. s 7491(a)(4)). EPA issued its

first regulations in 1980. See 45 Fed. Reg. 80,084 (Dec. 2,

1980). The 1980 visibility regulations, which apply to states

containing at least one Class I area, addressed visibility

impairment reasonably attributable to one source, or to a

small number of sources. See id. at 80,085. EPA limited the

reach of the 1980 regulations to impairment attributable to

specific sources and deferred any action on regional haze

attributable to multiple sources located across broad geo-

graphic regions because there was insufficient data regarding

the relationship between emitted pollutants, pollutant trans-

port and visibility impairment. See id. at 80,086.

In 1990, Congress amended the Clean Air Act again, add-

ing s 169B in an attempt to prompt EPA to further address

visibility impairment in national parks and wilderness areas.

See Clean Air Act Amendments, Pub. L. No. 101-549, s 816,

104 Stat. 2695 (1990) (current version at 42 U.S.C. s 7492).

Section 169B requires, among other things, that EPA under-

take research to identify "sources" and "source regions" of

visibility impairment in Class I areas, consider designating

transport commissions to study the interstate movement of

pollutants, and establish a transport commission for the

Grand Canyon National Park. See 42 U.S.C. s 7492.

EPA established the Grand Canyon Visibility Transport

Commission ("GCVTC") in 1991 to assess information about

the adverse impacts on visibility in and around sixteen Class I

areas on the Colorado Plateau region and to provide policy

recommendations to EPA to address such impacts. See 56

Fed. Reg. 57,522 (Nov. 12, 1991). The GCVTC issued its

report to EPA in 1996. Then in 1997 EPA issued a notice of

proposed rulemaking with regard to regional haze, see 62

Fed. Reg. 41,138 (July 31, 1997), noting that advances in

scientific and technical knowledge, including analyses provid-

ed by the GCVTC, had made it possible for EPA to target

region-wide visibility impairment. After receiving more than

1,300 comments to the proposed rule, EPA published the final

Haze Rule on July 1, 1999. See 64 Fed. Reg. at 35,714. The

final Haze Rule reaches all states because, EPA concluded, all

states contain sources whose emissions are "reasonably antici-

pated to contribute to regional haze in a Class I area." Id. at

35,721. Under the Haze Rule, a state must develop and

submit a SIP that provides for reasonable progress toward

achieving "natural visibility conditions" in the national parks

and wilderness areas in that state. See 40 C.F.R.

s 51.308(d)(1). SIPs addressing regional haze in an "attain-

ment" area must be submitted within one year of the date the

area is designated as "attainment," and revised SIPs for

"non-attainment" areas must be submitted within three years

after the designation. See id. s 51.308(b)(1)-(2).

The Haze Rule, for the most part, does not specify what

control measures a state must implement in its initial SIP.

See 64 Fed. Reg. at 35,721 (noting that the determination of

what specific control measures must be implemented "can

only be made by a State once it has conducted the necessary

technical analyses of emissions, air quality, and the other

factors that go into determining reasonable progress"). But

the rule does require states to: (1) provide for an improve-

ment in visibility in the 20 percent most impaired days; (2)

ensure that there is no degradation in visibility during the 20

percent clearest days; and (3) determine the annual rate of

visibility improvement that would lead to "natural visibility"

conditions in 60 years. See 40 C.F.R. s 51.308(d)(1); see also

id. s 51.301; 64 Fed. Reg. at 35,734. A state may not adopt

a rate of improvement that would achieve natural visibility

conditions in more than 60 years unless it demonstrates that

the 60-year rate is unreasonable. See 40 C.F.R.

s 51.308(d)(1)(ii).

The Haze Rule also provides that each state must develop a

long-term strategy for achieving its visibility improvement

goals. This strategy must include the identification of all

major stationary sources subject to Best Available Retrofit

Technology ("BART") requirements. See id. s 51.308(e). In

identifying sources subject to BART, the Haze Rule calls for

states to use a group rather than a source-by-source ap-

proach. See 64 Fed. Reg. at 35,740 (providing that a state

should find a source subject to BART "if it can be shown that

the source emits pollutants within a geographic area from

which pollutants can be emitted and transported downwind to

a Class I area") (italics added). In addition, when establish-

ing emission limits for BART sources, states must consider

the improvement in visibility that would result if the technolo-

gy were used at all comparable BART sources (rather than

the improvement that a particular device at a particular

source would accomplish). See 40 C.F.R. s 51.308(e)(1)(ii)(B).

The various petitioners and intervenors in this consolidated

case raise numerous challenges to the Haze Rule. In Part II

we address the claim that EPA acted contrary to law in

establishing a group rather than a source-by-source approach

to BART determinations. In Part III we address the claims

of industry petitioners in Case Nos. 01-1111, 01-1112, and

01-1113 that EPA acted without legal authority and in anarbi-

trary and capricious manner in promulgating the "natural

visibility" goal and the "no degradation" requirement in the

regional haze regulations. Finally, in Part IV, we address

the challenges raised by the Sierra Club - namely that EPA

failed to set reasonable criteria for measuring or assuring

reasonable progress, and that EPA acted contrary to law in

extending the statutory deadline for submission of state haze

control plans.

II. BART Issues

Under s 169A of the Act, each state must review all

BART-eligible sources - meaning all major stationary sources

built between August 1962 and August 1977 - to determine

whether the sources emit "any air pollutant which may rea-

sonably be anticipated to cause or contribute to any impair-

ment of visibility" in a Class I area.2 42 U.S.C.

s 7491(b)(2)(A). After deciding that a BART-eligible source

emits a pollutant which may reasonably be anticipated to

__________

2 A "major stationary source" is a source that has the potential

to emit 250 tons or more of any pollutant. See 42 U.S.C.

s 7491(g)(7).

cause or contribute to Class I visibility impairment, the state

then must determine what is the best available retrofit tech-

nology for controlling emissions from that source. See id.

Under the Act, states must take the following five factors into

consideration when deciding what BART controls to place on

a source:

the costs of compliance, the energy and nonair quality

environmental impacts of compliance, any existing pollu-

tion control technology in use at the source, the remain-

ing useful life of the source, and the degree of improve-

ment in visibility which may reasonably be anticipated to

result from the use of such technology.

Id. s 7491(g)(2).

The Haze Rule interprets and implements these statutory

BART provisions in two main ways. First, the Haze Rule

requires states to "find that a BART-eligible source is 'rea-

sonably anticipated to cause or contribute' to regional haze if

it can be shown that the source emits pollutants within a

geographic area from which pollutants can be emitted and

transported downwind to a Class I area." 64 Fed. Reg. at

35,740 (italics added). In other words, states must subject

BART-eligible sources to BART requirements even absent

empirical evidence of that source's individual contribution to

visibility impairment in a Class I area so long as the source is

located within a region that may contribute to visibility

impairment. See id. at 35,740; see also Br. for EPA at 26-27.

EPA explained in the preamble to the Haze Rule that this

sort of "collective contribution" approach was "consistent with

that taken in the programs for acid rain and ozone, programs

which also address regional air quality problems caused by

transported pollutants." 64 Fed. Reg. at 35,740; see also 63

Fed. Reg. at 57,376.

Second, the Haze Rule provides that once a state has

decided that a particular source is subject to BART and is

considering what BART controls to place on that source, the

state must analyze "the degree of visibility improvement that

would be achieved in each mandatory Class I Federal area as

a result of the emission reductions achievable from all sources

subject to BART located within the region that contributes to

visibility impairment in the Class I area." 40 C.F.R.

s 51.308(e)(1)(ii)(B) (italics added). This means that of the

five statutory factors to be considered by states when deter-

mining BART controls, see 42 U.S.C. s 7491(g)(2), only four

factors (the costs of compliance, the environmental impacts of

compliance, any existing pollution control technology in use at

the source, and the remaining useful life of the source) are

considered on a source-specific basis. The Haze Rule re-

quires states to consider the fifth statutory factor (the degree

in improvement) on a group or "area wide" basis.

Industry petitioners attack EPA's decision to use a group

rather than a source-by-source BART approach, arguing that

the language, statutory structure, and legislative history of

s 169A make it clear that the Haze Rule runs afoul of the

Act. See Br. for Industry Pet'rs and Intervenor in Case Nos.

99-1348, et al. at 13. For the reasons that follow, we grant

the petition for review, vacate the BART rules, and remand

to EPA.

In the Haze Rule, EPA extracts one of the five statutory

factors listed in s 169A(g)(2) and treats it differently than the

other four. See 64 Fed. Reg. at 35,741 (providing that only

"the degree in improvement in visibility that would be expect-

ed at each Class I area as a result of imposing BART" is to

be considered on a group rather than a source-specific basis).

In effect, EPA bifurcates the states' determination of the

appropriate BART emission limitations for specific sources.

States must first estimate possible emission reductions on a

source-by-source basis based on the application of the tech-

nology, the cost, time for compliance, energy and nonair

environmental impacts, and the remaining useful life of the

source. See id.; see also 40 C.F.R. s 51.308(e)(1)(ii)(A).

"Taking these factors into account allows the State to arrive

at an estimate of the 'best system' of retrofit control technolo-

gy for a particular source." 64 Fed. Reg. at 35,741. States

must then calculate the degree in improvement in visibility

that would be expected at each Class I area as a result of

imposing BART on all sources subject to BART. See id.; see

also 40 C.F.R. s 51.308(e)(1)(ii)(B).

EPA argues that its bifurcated approach to determining

appropriate BART controls is permissible because

s 169A(g)(2) is unclear about how a state must analyze

anticipated visibility improvement. See Chevron U.S.A., Inc.

v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984).

We cannot agree. The Haze Rule's splitting of the statutory

factors is consistent with neither the text nor the structure of

the statute. See 42 U.S.C. s 7491(g)(2). All five

s 169A(g)(2) factors inform the states' inquiries into what

BART controls are appropriate for particular sources. Al-

though no weights were assigned, the factors were meant to

be considered together by the states. The language of

s 169A(g)(2) can be read in no other way. To treat one of

the five statutory factors in such a dramatically different

fashion distorts the judgment Congress directed the states to

make for each BART-eligible source. This is most apparent

with respect to the states' duty to take into account "the costs

of compliance" in deciding not only whether to order an

individual source to install any new pollution control equip-

ment, but also what type of equipment - or as the statute

puts it, what type of "retrofit technology." How is a state to

determine what is too costly (and what is not) for a particular

source? The statute answers that the state must consider the

degree of improvement in visibility in national parks and

wilderness areas that would result from the source's installing

and operating the retrofit technology. EPA has a far differ-

ent answer: in assessing the cost of compliance imposed on a

source, the state may not consider the degree to which new

equipment at a particular source would help cure the haze in

some distant national park. Under EPA's take on the stat-

ute, it is therefore entirely possible that a source may be

forced to spend millions of dollars for new technology that

will have no appreciable effect on the haze in any Class I

area.3 A similar problem arises when a state considers, as it

__________

3 EPA's rule requires states to consider the cost of compliance

in terms of the likely emission reductions which would be achieved

must, the "existing pollution control technology in use at the

source." How is a state to decide whether the source already

has installed sufficient devices without determining how

much, if at all, the source is contributing to visual impairment

in downwind Class I areas? As the industry petitioners

correctly note, there is no point during the Haze Rule's

BART determination "in which it could be demonstrated that

the degree of improvement in visibility obtained from install-

ing a particular set of emissions controls at a source with

'exceedingly low' or even merely theoretical visibility impacts

is not justified by the cost of BART in light of those low or

theoretical impacts." Br. for Industry Pet'rs and Intervenor

in Case Nos. 99-1348, et al. at 17-18.

The Haze Rule's treatment of s 169A(g)(2)'s degree-of-

improvement calculation is, the industry petitioners argue,

not the only respect in which the rule is inconsistent with the

Act. As they see it, the Haze Rule also unlawfully constrains

__________

by the imposition of BART, no matter whether this reduction would

enhance visibility in downwind national parks. See 64 Fed. Reg. at

35,741 (explaining that the four factors, including cost, "should be

taken into account for each source subject to BART in order to

compare tradeoffs between the control efficiencies and costs associ-

ated with various control alternatives"). The preamble to the rule

provides very little guidance about how states are to calculate the

degree of improvement in visibility under the regime EPA contem-

plates. The preamble tells the states only this:

To calculate the degree of improvement in visibility that would

be expected at each Class I area as a result of imposing BART

on all sources subject to BART, the State should estimate the

possible emissions reductions resulting from the application of

BART at all subject sources located within the region that

contributes to visibility impairment in the Class I area. The

State should work on its own or in conjunction with other

States, such as a regional planning body, to determine the

geographic scope of the region that contributes to each Class I

area. The States should consult with one another to determine

the emission reductions achievable from sources subject to

BART in other states.

Id.

the states' statutory authority because under the Act it is the

states - not EPA - who must determine which BART-eligible

sources should be subject to BART. See 42 U.S.C.

s 7491(b)(2)(A) (providing that each BART-eligible source

that, "as determined by the State ... emits any air pollutant

which may reasonably be anticipated to cause or contribute to

any impairment of visibility," shall install and operate the

best available retrofit technology (italics added)); see also id.

s 7491(g)(2) (listing the factors that "the State ... shall take

into consideration" in determining BART controls (italics

added)).

We agree with these petitioners that the Haze Rule's

BART provisions are inconsistent with the Act's provisions

giving the states broad authority over BART determinations.

See id. s 7491(b)(2)(A); see also id. s 7491(g)(2). The Haze

Rule ties the states' hands and forces them to require BART

controls at sources without any empirical evidence of the

particular source's contribution to visibility impairment in a

Class I area. See 64 Fed. Reg. at 35,740; see also Br. for EPA

at 26-27. If the Haze Rule contained some kind of a mecha-

nism by which a state could exempt a BART-eligible source

on the basis of an individualized contribution determination,

then perhaps the plain meaning of the Act would not be

violated. But the Haze Rule contains no such mechanism.

Section 169A(c)(1) - on which EPA relies - is a procedure by

which the Administrator, with the approval of federal land

managers, can exempt a source from BART requirements.

See 42 U.S.C. s 7491(c)(1) ("The Administrator may, by rule,

after notice and opportunity for public hearing, exempt any

major stationary source from [the BART requirements], upon

his determination that such source does not or will not, by

itself or in combination with other sources, emit any air

pollutant which may reasonably be anticipated to cause or

contribute to a significant impairment of visibility in any

mandatory class I Federal area."); see also id. s 7491(c)(3).

It does not provide the states with a means by which they can

exempt sources based on individual contribution determina-

tions.

Our conclusion that the Haze Rule's BART provisions

impermissibly constrain state authority is reinforced by the

Conference Report on the 1977 amendments to the Act. See

Demby v. Schweiker, 671 F.2d 507, 510 (D.C. Cir. 1981). The

Report explains:

The agreement clarifies that the State, rather than the

Administrator, identifies the source that impairs visibility

in the Federal class I areas identified....

In establishing emission limitations for any source which

impairs visibility, the State shall determine what consti-

tutes "best available retrofit technology" ... in establish-

ing emission limitations on a source-by-source basis to be

included in the State implementation plan so as to carry

out the requirements of this section.

H.R. Conf. Rep. No. 95-564 (1977), reprinted in 3 Senate

Comm. on Env't and Pub. Works, A legislative History of the

Clean Air Act Amendments of 1977, at 535 (1978) [hereinafter

"1977 Legislative History"]. The "agreement" to which the

Conference Report refers was an agreement to reject the

House bill's provisions giving EPA the power to determine

whether a source contributes to visibility impairment and, if

so, what BART controls should be applied to that source.

See id. at 533-35. Pursuant to the agreement, language was

inserted to make it clear that the states - not EPA - would

make these BART determinations. See id. at 533-35; see

also H.R. Res. 4151, 95th Cong. (1977), reprinted in 1977

Legislative History at 1985, 2325-30. The Conference Report

thus confirms that Congress intended the states to decide

which sources impair visibility and what BART controls

should apply to those sources. The Haze Rule attempts to

deprive the states of some of this statutory authority, in

contravention of the Act.

In sum, we conclude that the Haze Rule's BART provisions

are contrary to the text, structure and history of s 169A of

the Act because the rule isolates s 169A(g)(2)'s benefit calcu-

lation and constrains authority Congress conferred on the

states. Although petitioners also contended that no concept

of a group or area-wide BART determination could ever be

consistent with the Act,4 we need not decide that broad issue

today. We hold only that the Haze Rule's treatment of

s 169A(g)(2)'s benefit calculation and its infringement on

states' authority under the Act render the BART provisions

of the rule impermissible.

III. The "Natural Visibility" Goal and the

"No Degradation" Requirement

The industry petitioners in Case Nos. 01-1111, 01-1112, and

01-1113 ("Reconsideration Petitioners") cite four grounds in

support of their claim that the "natural visibility" goal and the

"no degradation" requirement in the Haze Rule should be

vacated as "arbitrary and capricious" and otherwise not in

accordance with law: (1) EPA exceeded its authority under

s 169A(a)(1) and adopted regulations that conflict with the

PSD program in establishing "natural visibility" as the goal of

the regional haze program; (2) the regulations impermissibly

constrain state discretion in requiring that the states develop

their visibility programs using the "no degradation" require-

ment as a bench mark; (3) EPA has no authority to impose

upon the states the goal of achieving "natural visibility"

conditions, and thereby restrict the opportunity of some

states to participate in the planning process aimed at address-

ing regional haze; and (4) EPA promulgated the Haze Rule

without providing adequate notice and an opportunity for

comment. We find no merit in these claims and, accordingly,

deny industry petitioners' challenge to the "natural visibility"

goal and the "no degradation" requirement.

__________

4 The industry petitioners argued that source-by-source BART

determinations are required by the statute and that no concept of

area-wide BART determinations is permissible. See Brief for In-

dustry Pet'rs and Intervenor in Case Nos. 99-1348, et al. at 14

(arguing that s 169A makes it clear that BART determinations

"must be made on a source-by-source basis"). Cf. Train v. Natural

Res. Def. Council, 421 U.S. 60, 64 (1975) (discussing the history of

the Clean Air Act and how the premise of the Act was to give states

and local governments responsibility over preventing air pollution

"at its source").

Before we turn to the merits of petitioners' claims, we must

first address EPA's contentions that petitioners' challenge to

the natural visibility goal and their claims of inadequate

notice are barred because they were not properly raised

before the agency. We find no merit in EPA's contentions.

Petitioners argued that the Haze Rule conflicted with the

PSD program in both their comments to the agency before

the regulations were issued and in their petition for reconsid-

eration. See Supplemental Comments of the Utility Air

Regulatory Group at 22, reprinted in Joint Appendix ("J.A.")

156; Petition for Reconsideration of the Regional Haze Regu-

lations Submitted by Utility Air Regulatory Group & Nation-

al Mining Ass'n at 10-11, reprinted in J.A. 97-98. Petitioners

also sought notice and comment in connection with these

portions of the Haze Rule in their petition for reconsideration.

See Petition for Reconsideration of the Regional Haze Rule

Submitted by the Center for Energy and Economic Develop-

ment at 11-14, reprinted in J.A. 116-19.

On the merits, we reject petitioners' claim that EPA had no

authority under s 169A to adopt the natural visibility goal.

EPA acted under express congressional authorization in pro-

mulgating the challenged regulations. See 42 U.S.C.

s 7491(a)(4). In a case such as this, where

"there is an express delegation of authority to the agency

to elucidate a specific provision of the statute by regula-

tion," Chevron, 467 U.S. at 843-844, ... any ensuing

regulation is binding in the courts unless procedurally

defective, arbitrary or capricious in substance, or mani-

festly contrary to the statute.

United States v. Mead Corp., 533 U.S. 218, 227 (2001) (foot-

note omitted). The natural visibility goal is neither "mani-

festly contrary to the statute" nor "arbitrary or capricious in

substance." Indeed, the goal is an eminently reasonable

elucidation of the statute.

The statutory goal enunciated in s 169A(a)(1) is quite clear:

"the prevention of any future, and the remedying of any

existing, impairment of visibility." 42 U.S.C. s 7491(a)(1).

Petitioners argue that a "natural visibility" goal cannot be

gleaned from this statutory standard. This claim is specious.

Agency regulations that aim to remedy any existing impair-

ment of visibility and prevent any future impairment - as the

statute commands - will of necessity aim to achieve a state of

natural visibility. There is no material inconsistency between

the statutory and regulatory goals, for the latter merely

elucidates the former.

The petitioners also claim that Congress did not intend for

the statutory goal of s 169A(a) to displace the objectives of

the PSD program. Therefore, according to petitioners, the

natural visibility goal and the no degradation requirement

cannot be squared with the PSD program, because that

program recognizes that some impairment of visibility would

be acceptable in Mandatory Federal Class I areas. We reject

this argument, because EPA has reasonably construed the

PSD program and the disputed regional haze rules as comple-

mentary regulatory regimes.

There are two things worth noting at the outset. First, the

natural visibility goal is not a mandate, it is a goal. As EPA

has explained, this goal serves as the foundation for analytical

tools to be used by the states to set reasonable progress

goals. 64 Fed. Reg. at 35,732-33 Petitioners' claim that the

agency is without authority to mandate attainment of the

national goal is therefore meritless.

Second, the statute specifically calls for regulations to

assure "reasonable progress toward meeting the national

goal" of remedying any current and preventing any future

impairment of visibility. 42 U.S.C. s 7491(a)(4). The no

degradation provision requires implementation plans to "pro-

vide for an improvement in visibility for the most impaired

days over the period of the implementation plan and ensure

no degradation in visibility for the least impaired days over

the same period." 40 C.F.R. s 51.308(d)(1). This regulation

plainly and permissibly serves to assure the reasonable prog-

ress sought by Congress.

The PSD program was adopted pursuant to the 1977

amendments to the Act. See generally Ala. Power Co. v.

Costle, 636 F.2d 323, 349-51 (D.C. Cir. 1979). The program

generally controls any additional deterioration of air quality

by establishing maximum allowable increases of certain pollu-

tants in specified areas. See 42 U.S.C. s 7473(b). It is

therefore true, as industry petitioners point out, that the PSD

program may sometimes allow for limited air quality deterio-

ration. EPA, however, has taken pains to explain that the

PSD program and the Haze Rule are not at odds:

Section 169A of the CAA requires the EPA to promul-

gate regulations to ensure that the States revise their

implementation plans to contain those measures neces-

sary to make reasonable progress toward the national

visibility goal. In addition to the remedying of any

existing visibility impairment, that goal requires the pre-

vention of any future visibility impairment in mandatory

Class I Federal areas. As part of the overall strategy to

effectuate that goal, the final rule requires States to

identify all anthropogenic sources of visibility impair-

ment. The States accordingly should take into account

the cumulative effect of all existing, man-made sources of

air pollution in developing their regional haze implemen-

tation plan as well as potential new sources.

With respect to the comment that EPA lacks authority

to impose a welfare-based standard which renders other

requirements of the CAA such a[s] PSD and NSPS

largely superfluous, EPA notes that when Congress

amended the CAA in 1977 to provide for the protection of

visibility, it was aware of both the PSD and NSPS

provisions. Nevertheless, Congress required EPA to

issue regulations to address visibility. In contrast, the

final regional haze rule requires States to take into

account the visibility impact of emissions from both

existing and new sources, and stationary and nonstation-

ary sources. This is only one of many instances under

the CAA in which Congress has provided for overlapping

regulation. Indeed, the PSD and NSPS programs both

focus on the control of emissions from new stationary

sources. EPA believes that the regional haze rule and

these other provisions are complementary means of im-

proving air quality.

Commenters raised a number of specific questions

regarding the interaction of the PSD program and the

regional haze rule. One commenter asked the EPA to

address the relationship of allowable Class I impacts to

the proposed visibility impact limits. All PSD areas are

categorized as Class I, II, or III. The classification of an

area determines the corresponding maximum allowable

increases, or increment, of air quality deterioration.

Only a relatively small increment of air quality deteriora-

tion is permissible in Class I areas. These increments

are measured over annual, 24-hour, and/or 3-hour aver-

aging times. Nowhere, however, does the CAA provide

that air quality must be allowed to deteriorate to the full

extent allowed by the Class I increments standing alone.

To read the statute in that manner would contravene

both the general goals of the CAA to "protect and

enhance" air quality (see section 101(b)(1)) but the specif-

ic long-term goal of section 169A is to eventually remedy

existing visibility impairment in Class I areas. Accord-

ingly, we believe that allowing localized air quality in-

creases in the short-term due to the emissions from

major new sources subject to PSD is not inconsistent

with the regional haze program. The regional haze

program is focused on long-term emission decreases from

the entire regional emission inventory, comprised of ma-

jor and minor stationary sources, area sources and mo-

bile sources. We expect that long-term emission strate-

gies for regional haze will derive substantial emission

decreases from the inventory as a whole, and that these

overall strategies will be able to accommodate some

localized increases within the framework of a regional

decrease. We also note that the overall inventory would

decrease in cases where new sources are built that

replace older, more polluting sources. Accordingly, we

do not see any inherent conflict between the two pro-

grams.

While the PSD program generally allows for a small

increment of air quality deterioration in Class I areas,

section 165 of the CAA also provides for the additional

protection of air quality-related values, "including visibili-

ty," in Class I Federal areas beyond that provided by the

increments. That is, where the FLM [Federal Land

Manager] demonstrates that emissions from a new or

modified source will have an adverse impact on air

quality-related values (AQRVs), notwithstanding the fact

that the emissions from the source do not cause or

contribute to concentrations in excess of the increment

for a Class I area, "a permit shall not be issued."

Section 165(d). Thus, under PSD there can be no in-

crease in emissions from the construction or modification

of a major stationary source where that increase would

result in adverse impacts on AQRVs in a Class I Federal

area.

Responses to Significant Comments on the Notice of Pro-

posed Rulemaking s I.F (Apr. 1999), reprinted in J.A. 1062-

63.

The Government also reminds us that the PSD program

"does not require that [visibility] deterioration occur. Nor

does it create an entitlement to degrade air quality in general

or visibility in particular, because nothing in the CAA pro-

vides for issuance of a PSD permit as a matter of right." Br.

for EPA at 59. We agree.

Petitioners cite Alabama Power in an attempt to support

their claim that the existence of the PSD program effectively

bars "natural visibility" as a viable regulatory goal. Alabama

Power supports no such claim. Indeed, the court noted that

"[s]ection 169A is available to protect visibility in Class I

areas where visibility is an important characteristic, and the

[agency] may choose to invoke [its] rulemaking authority ...

to address this problem." 636 F.2d at 368. In acknowl-

edging the availability of s 169A, the court implicitly em-

braced EPA's view that the visibility program is a supplement

to the PSD program.

Industry petitioners additionally claim that the no degrada-

tion requirement conflicts with s 169A(g)(1)'s list of factors

that states must consider when determining reasonable prog-

ress. Section 169A(g)(1) states:

in determining reasonable progress there shall be taken

into consideration the costs of compliance, the time nec-

essary for compliance, and the energy and nonair quality

environmental impacts of compliance, and the remaining

useful life of any existing source subject to such require-

ments.

42 U.S.C. s 7491(g)(1). Petitioners argue that, because "rea-

sonable progress" could at times involve degradation, the "no

degradation" requirement restricts the States' authority to

apply the statutory criteria. We disagree.

As noted above, the statute commands EPA to promulgate

regulations assuring "reasonable progress toward meeting

the national goal." Id. s 7491(a)(4). The national goal in-

cludes "the prevention of any future ... impairment of

visibility." Id. s 7491(a)(1). The no degradation require-

ment simply elucidates "reasonable progress." The require-

ment does not, however, in any way alter the list of

s 169A(g)(1) criteria. In fact, the cited statutory factors do

not include "degradation." Therefore, the States will be able

to comply with the no degradation requirement while apply-

ing the s 169A(g)(1) criteria.

Next, although the petitioners assert that the Haze Rule

somehow restricts the opportunity of some states to partici-

pate in the planning process aimed at addressing regional

haze, we can find no real evidence in support of this claim.

This contention certainly offers no ground upon which to

vacate the disputed regulations.

Finally, petitioners claim that they did not have fair notice

and an adequate opportunity to comment on the regulatory

goal of natural visibility, because "EPA provided no notice in

its 1997 proposal that it intended to require States to achieve

natural visibility conditions." Br. for Reconsideration Pet'rs

at 25. Rather, according to petitioners, EPA merely pro-

posed regulations patterned on the statutory goal enunciated

in s 169A(a)(1), i.e., "'preventing any future, and remedying

any existing, impairment of visibility."' Br. for Reconsidera-

tion Pet'rs at 25 (quoting old 40 C.F.R. s 51.300(a)(1)). This

argument is meritless. As noted above, there is no material

inconsistency between the statutory goal enunciated in

s 169A(a)(1) and the regulatory goal of "natural visibility."

The latter is a "logical outgrowth" of the former. Fertilizer

Inst. v. EPA, 935 F.2d 1303, 1311 (D.C. Cir. 1991). There-

fore, EPA did not violate any notice and comment require-

ments in adopting the natural visibility goal as a part of the

Haze Rule.

If there is any tension between the Haze Rule and the PSD

program, it is EPA's responsibility to harmonize the regulato-

ry requirements. It has done so in a perfectly reasonable

fashion. EPA's regulatory harmonization is both consistent

with the statute and reasonable. Accordingly, we deny the

petitions for review of the natural visibility goal and the no

degradation requirement.

IV. The "Reasonable Progress" Criteria and

the Extension of the Statutory Deadline

While the Industry Petitioners attack the Regional Haze

Rule as overstepping EPA's statutory authority, Sierra Club

argues that EPA has not gone far enough to meet its

statutory responsibilities.

In its first cluster of attacks on the Haze Rule, Sierra Club

contends that the Rule does not satisfy EPA's responsibility

under CAA s 169A(a)(4) to "promulgate regulations to assure

... reasonable progress toward meeting the national [visibili-

ty] goal," 42 U.S.C. s 7491(a)(4), its responsibility under CAA

s 169B(e)(1) to establish "criteria for measuring 'reasonable

progress' toward the national goal," 42 U.S.C. s 7492(e)(1),

and its obligation under the Administrative Procedure Act not

to act in an "arbitrary or capricious" fashion, 5 U.S.C. s 706

(2)(A). Sierra Club argues that the Haze Rule's require-

ments for improvement in visibility during the 20 percent

most impaired days and for no degradation during the 20

percent least impaired days, 40 C.F.R. s 51.308(d)(1); see

also 64 Fed. Reg. at 35,734, do not qualify as "reasonable

progress" criteria and are arbitrary and capricious. Similar-

ly, it argues that the Rule's requirement that a state not

adopt a rate of improvement that would take more than 60

years to achieve natural visibility unless the state demon-

strates that the 60-year rate is unreasonable, 40 C.F.R.

s 51.308(d)(1)(i)(b), (ii), does not meet the statutory mandates

and lacks "requisite specificity" because a state would be

"free to reject the 60 year time frame merely by claiming that

such a schedule is not 'reasonable."' Reply Br. for Sierra

Club at 5, 8.

We might well consider the latter attack unripe even

without reference to our decision in Part II that the group-

BART provisions of the Haze Rule are invalid. If in the

future a state does conclude that it needs more than 60 years

to achieve natural visibility, and if EPA decides to accept that

conclusion, it will at that time be open to Sierra Club to

challenge EPA's decision as arbitrary and capricious. In the

meantime, this court will certainly "'benefit from postponing

review until the policy in question has sufficiently crystal-

lized."' Grand Canyon Air Tour Coalition v. FAA, 154 F.3d

455, 472 (D.C. Cir. 1998) (quoting Florida Power & Light Co.

v. EPA, 145 F.3d 1414, 1421 (D.C. Cir. 1998)).

But in any event, our decision to invalidate the group-

BART provisions renders this entire cluster of challenges

unripe for disposition. Because those provisions were inti-

mately related to EPA's assessment of what was necessary to

achieve the goal of natural visibility, we cannot be sure

whether on remand EPA will retain its current criteria for

evaluating reasonable progress or adopt others. If the invali-

dation of the group-BART provisions causes EPA to doubt

the efficacy of the remaining elements of the Haze Rule,

perhaps EPA will see wisdom in some of Sierra Club's

complaints and, for example, increase the percentage of days

during which there must be improvement in visibility, or

increase the specificity of its criteria for reasonable progress.

In light of the uncertainty that our decision creates with

respect to the form of the rule that may emerge upon

remand, the only prudent course is for us to decline to

address Sierra Club's challenges at this juncture.

Sierra Club's second major attack on the Haze Rule chal-

lenges EPA's determination to give states 3 years to file haze

SIPs for areas designated "attainment" or "unclassifiable."

We are troubled by EPA's action, which appears to contra-

vene express statutory language, but in light of our decision

regarding group-BART we leave this to EPA to reconsider on

remand as well.

The Transportation Equity Act for the 21st Century, Pub.

L. No. 105-178, 112 Stat. 107, 463 (1998) ("TEA-21"), provides

that, for areas designated as "nonattainment" for the new

national ambient air quality standard (NAAQS) for fine par-

ticulate matter, EPA shall require states to submit haze SIPs

3 years after the area has been so designated. See TEA-21

s 6102(c)(2) (incorporating the 3-year deadline of 42 U.S.C.

s 7492(e)(2)). However, TEA-21 also expressly mandates

that for any area designated as "attainment" or "unclassifia-

ble" for that standard, EPA "shall require the [SIP] to be

submitted 1 year after the area has been so designated." Id.

Nonetheless, the Haze Rule permits a state to "choose to

defer addressing the [Rule's] core requirements for regional

haze ... and the requirements for BART" by submitting a

so-called "commitment SIP," containing a "demonstration of

ongoing participation in a regional planning process to ad-

dress regional haze, and an agreement ... to continue partic-

ipating," a "description of the regional planning process," and

a "list of all BART-eligible sources within the state." 40

C.F.R. s 51.308(c), (c)(1). If a state submits such a commit-

ment SIP, the deadline for submitting a haze SIP is extended

from 1 year to 3. Id. s 51.308(c)(2); see Br. for EPA at 87;

Br. for Sierra Club at 25.

On its face, this provision of the Haze Rule appears to

extend the express statutory deadline for "attainment" and

"unclassifiable" areas, an action which is beyond the agency's

authority. See Sierra Club v. EPA, 129 F.3d 137, 140 (D.C.

Cir. 1997) (holding that EPA cannot establish a "grace peri-

od" for compliance when not authorized to do so by the CAA);

Sierra Club v. EPA, 719 F.2d 436, 469 (D.C. Cir. 1983)

(reversing an EPA implementation plan that would have

effectively extended the statutory deadline for state submis-

sions under CAA amendments). The statute requires states

to submit, by the 1-year deadline, SIPs "contain[ing] such

emission limits, schedules of compliance, and other measures

as may be necessary to carry out" the haze regulations. 42

U.S.C. s 7492(e)(2) (incorporated by reference into TEA-21

s 6102(c)(2)). A commitment SIP, which by definition ad-

dresses neither the Haze Rule's "core requirements for re-

gional haze," nor its "requirements for BART," 40 C.F.R.

s 51.308(c), does not appear to satisfy the statutory require-

ment. Cf. Natural Res. Def. Council, Inc. v. EPA, 22 F.3d

1125, 1134 (D.C. Cir. 1994) (holding, under CAA s 110(k)(4),

that EPA cannot satisfy its responsibility to determine wheth-

er a state plan submission complies with the CAA unless the

submission "contains something more than a mere promise to

take appropriate but unidentified measures in the future,"

and that a submission containing nothing more than such a

commitment cannot extend the statutory deadline).

Notwithstanding our doubts about the validity of this provi-

sion, we decline to vacate it in light of the uncertainty that

our decision invalidating the group-BART provisions of the

Haze Rule will cast upon the contents of the SIPs required of

the states. With the Rule and hence the contents of the SIPs

now altered and subject to revision on remand, the more

prudent course for this court is simply to remand the dead-

line-extension issue as well. This will permit the agency to

reconsider its decision to extend the deadline at the same

time that it decides what form the substantive requirements

of a revised Haze Rule should take.

Garland, Circuit Judge, concurring in part and dissenting

in part: In the Clean Air Act, Congress declared a national

goal of restoring natural visibility in the country's largest

national parks and wilderness areas. In Part II of today's

opinion, the court adopts an interpretation of the Act that, in

the view of the Environmental Protection Agency (EPA) and

the National Academy of Sciences, will prevent the achieve-

ment of Congress' goal. If that interpretation were required

by the statutory language, we would of course be compelled

to adopt it. But such an interpretation is not required. To

the contrary, EPA's construction of the Clean Air Act as

permitting the group-BART provisions of the Haze Rule is a

reasonable interpretation of the legislative language. It is

therefore entitled to our deference under the standard an-

nounced in Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 842-43 (1984). Accordingly, while concur-

ring in most of the court's opinion, I dissent from the

conclusions it reaches in Part II.

A

Chevron instructs courts to apply a two-step framework

when reviewing an agency's construction of a statute. First,

we must ask "whether Congress has directly spoken to the

precise question at issue," in which case we "must give effect

to the unambiguously expressed intent of Congress." Id. at

842-43. However, if the "statute is silent or ambiguous with

respect to the specific issue," we move to the second step and

must defer to the agency's interpretation as long as it is

"based on a permissible construction of the statute." Id. at

843; accord Barnhart v. Walton, 122 S.Ct. 1265, 1271-72

(2002).

My colleagues stop at Chevron's first step, concluding that

the language of the Clean Air Act (CAA) can be read in only

one way. They adopt the view of the industry petitioners

that under the Act, BART ("best available retrofit technolo-

gy") controls cannot be imposed on a source unless a state

determines how much that particular source contributes to

visual impairment in a downwind national park or wilderness

area, as well as how much improvement in visibility would

result from installing BART controls at that specific source.

Op. at 10-11. EPA, by contrast, interprets the Clean Air Act

as permitting a collective assessment of the impact that

emissions from (and controls on) sources located in upwind

regions have on visibility impairment in downwind areas.

Before considering the grounds for the court's decision, it is

important to understand why EPA decided to require a

collective contribution approach, rather than a tracing of the

effects of each individual source's emissions. Congress added

s 169A to the Clean Air Act "[i]n response to a growing

awareness that visibility was rapidly deteriorating" in major

national parks and wilderness areas ("Class I areas"). Chev-

ron U.S.A., Inc. v. EPA, 658 F.2d 271, 272 (5th Cir. 1981).

The section establishes a national goal of restoring natural

visibility in such areas,1 and expressly instructs EPA to issue

regulations to "assure ... reasonable progress" toward meet-

ing the national goal. 42 U.S.C. s 7491(a)(4). After examin-

ing the results of scientific studies, EPA concluded that such

reasonable progress was not possible without a collective

approach. The record compiled by EPA showed that visibili-

ty impairment in Class I areas is caused in large part by

long-range transport of combined emissions from multiple

sources.2 Although it is practicable to trace emissions from

an individual source into its surrounding region, and to model

the transport of combined pollution from that region to a

downwind Class I area,3 it is not possible to trace emissions

__________

1 Section 169A declares the national goal to be "the prevention

of any future, and the remedying of any existing, impairment of

visibility in mandatory class I Federal areas." 42 U.S.C.

s 7491(a)(1). As the court holds today, agency regulations that aim

to accomplish these objectives "will of necessity aim to achieve a

state of natural visibility." Op. at 16.

2 See, e.g., Congressional Research Service, Regional Haze:

EPA's Proposal to Improve Visibility in National Parks and

Wilderness Areas 2 (1997) (J.A. at 242); National Academy of

Sciences, National Research Council, Protecting Visibility in

National Parks and Wilderness Areas 7-8, 196-99 (1993) (J.A. at

362, 456-57) [hereinafter "NAS Report"].

3 See Regional Haze Regulations, 64 Fed. Reg. 35,714, 35,718

(July 1, 1999). The court does not dispute the reasonableness of, or

from an individual source directly to such a downwind area

without great time and expense4--and even then the results

would be of uncertain reliability.5 Citing the National Acade-

my of Sciences' conclusion that a program focused "on deter-

mining the contribution of individual emission sources to

visibility impairment is doomed to failure,"6 EPA adopted the

group-BART approach that is at issue here.

__________

support for, the latter proposition. Cf. Appalachian Power Co. v.

EPA, 135 F.3d 791, 802 (D.C. Cir. 1998) (noting that "computer

models are a useful and often essential tool for performing the

Herculean labors Congress imposed on EPA in the Clean Air Act,"

and that "their scientific nature does not easily lend itself to judicial

review" (internal quotation marks omitted)); id. at 814 ("[O]ur

consideration of EPA's use of computer models proceeds with

considerable deference to the agency's expertise.").

4 See NAS Report at 240-41 (J.A. at 478) ("It would be ex-

tremely time-consuming and expensive to try to determine the

percent contribution of individual sources to haze one source at a

time."); Regional Haze Regulations, 64 Fed. Reg. at 35,740 ("[E]s-

tablishing the contribution from one particular source to the prob-

lem of regional haze would require lengthy and expensive studies

and pose substantial technical difficulties.").

5 See NAS Report at 2 (J.A. at 359) ("During transport, the

emissions from many sources mix together to form a uniform,

widespread haze known as regional haze."); id. at 20 (J.A. at 368)

("[T]he extent to which [source-specific] techniques can be used in

attributing visibility impairment is uncertain, as is their usefulness

in estimating the effect that different control strategies might have

on visibility."); id. at 25-26 (J.A. at 370-71) ("Efforts to decide

whether a particular source is contributing to regional haze have

thus far encountered grave obstacles. Studies designed to estimate

the effect of a particular source on surrounding visibility are

expensive, and the results can be uncertain and controversial."). To

take just one example, "the efforts to trace the contribution of the

Navajo Generating Station to haze in the Grand Canyon National

Park took several years and cost millions of dollars without leading

to quantitatively definitive answers." Id. at 7 (J.A. at 361).

6 EPA, Resp. to Pets. for Recons. of Regional Haze Rule 16

(Jan. 10, 2001) (J.A. at 17) (quoting NAS Report at 7 (J.A. at 361));

My colleagues do not dispute that we must defer to EPA's

expert opinion regarding the impracticability of tracing indi-

vidual source emissions.7 Rather, they conclude that notwith-

standing EPA's view of the facts, the industry petitioners are

correct that the Haze Rule's group-BART provisions violate

the plain meaning of the Clean Air Act by: (i) employing a

group rather than source-by-source standard in determining

the appropriate BART controls for a particular source, and

(ii) constraining the authority of the states to make their own

BART-related decisions. These two contentions are consid-

ered in Parts B and C below. Because I conclude that there

is nothing in the Clean Air Act that bars the approach taken

by EPA, and that to the contrary the Haze Rule rests on a

reasonable interpretation of the statutory language, I would

follow the Supreme Court's direction in Chevron and uphold

the Rule.

B

As the court notes, the Haze Rule employs a group analysis

in making two determinations required by the Clean Air Act:

(i) whether a pollution-emitting source is subject to BART

requirements at all, and (ii) what kind of BART controls

should be placed on a subject source. The industry petition-

ers contend that the Clean Air Act prohibits the use of a

group standard in making either of these determinations.

Under the Act, a source is subject to BART requirements,

and hence a state implementation plan must require such a

source to install BART controls, if it "emits any air pollutant

which may reasonably be anticipated to cause or contribute to

any impairment of visibility in any [Class I] area." CAA

__________

see also NAS Report at 240 (J.A. at 478) ("The committee doubts

... that such attributions could be the basis for a workable visibility

protection program.").

7 See Appalachian Power, 135 F.3d at 801-02 ("Our analysis is

guided by the deference traditionally given to agency expertise,

particularly when dealing with a statutory scheme as unwieldy and

science-driven as the Clean Air Act."); see also Husqvarna AB v.

EPA, 254 F.3d 195, 199 (D.C. Cir. 2001).

s 169A(b)(2)(A), 42 U.S.C. s 7491(b)(2)(A). Under the Haze

Rule, a state must "find that a BART-eligible source is

'reasonably anticipated to cause or contribute' to regional

haze if it can be shown that the source emits pollutants within

a geographic area from which pollutants can be emitted and

transported downwind to a Class I area." Regional Haze

Regulations, 64 Fed. Reg. at 35,740. That is, a source is

subject to BART requirements, without proof of that source's

individual contribution to visibility impairment in a Class I

area, as long as the source emits pollutants into an upwind

area from which pollutants may be transported to a down-

wind Class I area. Id.

The industry petitioners contend that CAA s 169A(b)(2)

unambiguously provides that a source is subject to BART

requirements only if a state can show the extent to which that

particular source contributes to impairment in a Class I area.

That section, however, requires states to impose BART con-

trols on any source that "emits any air pollutant which may

reasonably be anticipated to cause or contribute to any

impairment of visibility in any [Class I] area." 42 U.S.C.

s 7491(b)(2)(A) (emphasis added). Far from plainly compel-

ling the petitioners' reading, the italicized words pile ambigui-

ty upon ambiguity and virtually invite the reader to adopt the

construction favored by EPA. See Merriam-Webster's Col-

legiate Dictionary 252 (10th ed. 1996) (defining "contribute"

as "to give or supply in common with others," or "to give a

part to a common ... store") (emphasis added); Central

Ariz. Water Conservation Dist., 990 F.2d 1531, 1541 (9th Cir.

1993) ("The phrase 'may reasonably be anticipated' suggests

that Congress did not intend to require EPA to show a

precise relationship between a source's emissions and all or a

specific fraction of the visibility impairment within a Class I

area." (quoting with approval National Research Council,

Haze in the Grand Canyon: An Evaluation of the Winter

Haze Intensive Tracer Experiment 5 (1990))). If a source is

one of several that emit pollutants into an upwind area, and if

pollution from that area is transported downwind to a nation-

al park,8 then it can hardly be unreasonable to conclude that

the pollutants issued by the source "may reasonably be

anticipated" to "contribute" to "any" impairment in the park.

My colleagues wisely do not accept the industry petitioners'

contention that s 169A(b)(2) bars a collective determination

of whether a source is subject to BART. (As discussed in

Part C infra, they do conclude that EPA may not require the

states to employ such a mode of analysis.) They do, however,

accept the petitioners' contention that to determine the kind

of BART controls that should be imposed on a subject source,

a state must determine how much that particular source

contributes to visual impairment in the downwind Class I

area, Op. at 11, as well as the degree of improvement in

visibility that would occur in the downwind area if that

particular source installed such controls, id. at 10. The Haze

Rule, by contrast, provides that once a state has concluded

that a particular source is subject to BART requirements, in

determining the kind of BART controls to place on the source

the state must consider the degree of improvement that

would be achieved in the downwind area by imposing BART

controls on all subject sources in the contributing upwind

area. See 40 C.F.R. s 51.308(e)(1)(ii)(B); Regional Haze

Regulations, 64 Fed. Reg. at 35,741.

The industry petitioners rest their contention that the

statute unambiguously bars this collective assessment ap-

proach on s 169A(g)(2), which states:

[I]n determining best available retrofit technology the

State ... shall take into consideration [1] the costs of

compliance, [2] the energy and nonair quality environ-

mental impacts of compliance, [3] any existing pollution

control technology in use at the source, [4] the remaining

useful life of the source, and [5] the degree of improve-

__________

8 Under the Haze Rule, the state must establish the first

condition directly and the second through the application of comput-

er modeling techniques. See Regional Haze Regulations, 64 Fed.

Reg. at 35,740, 35,741; supra note 3.

ment in visibility which may reasonably be anticipated to

result from the use of such technology.

42 U.S.C. s 7491(g)(2). According to both the industry peti-

tioners and the court, this section requires the state to take

into consideration each of the five listed factors on a source-

by-source basis. Since the Haze Rule does require source-

by-source consideration of the first four factors, see Regional

Haze Regulations, 64 Fed. Reg. at 35,740-41; Op. at 9, the

only question is whether such consideration is also required of

the fifth factor: "the degree of improvement in visibility

which may reasonably be anticipated to result from the use of

such technology."

There is nothing in the statutory language that requires a

source-by-source application of the fifth factor. Section

169A(g)(2) requires an assessment of the degree of improve-

ment that may reasonably be anticipated "from the use of

such technology," but it does not say whether that improve-

ment must be from the use of such technology by a single

source or by all sources in the upwind area.9 Although the

court says that the statute does not permit any of the five

factors to be treated differently from any of the others, the

statute itself does not say so. Moreover, the first four factors

are different in kind from the fifth: the first four all go to the

cost of imposing controls on a particular source and permit a

determination of the most cost-effective control technology

for each such source. Regional Haze Regulations, 64 Fed.

Reg. at 35,740-41. The fifth factor, by contrast, goes to the

benefit to be derived from using the most cost-effective

controls. In EPA's expert view, that benefit can best be

determined by considering the total benefit that would accrue

if each source in the upwind area used the kind of controls

most cost-effective for that source.

The industry petitioners concede that s 169A(g)(2) does not

require a state to undertake a cost-benefit analysis in decid-

ing the type of controls to impose, or specify the weight to be

__________

9 See Regional Haze Regulations, 64 Fed. Reg. at 35,741 ("EPA

interprets the language 'from the use of such technology' to refer to

the application of BART level controls to all sources subject to

BART.").

accorded to any of the five factors.10 All that is required is

that the state "take into consideration" the five listed factors.

42 U.S.C. s 7491(g)(2). Because the statute does not specify

how the state should take those factors into consideration, it

does not bar EPA from employing a group rather than

source-by-source mode of analysis in considering benefits.

See Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1045 (D.C.

Cir. 1978) (holding that where "Congress did not mandate any

particular structure or weight" for the factors EPA is to

consider, "it left EPA with discretion to decide how to account

for the consideration factors, and how much weight to give

each factor"); see also New York v. Reilly, 969 F.2d 1147,

1150 (D.C. Cir. 1992) (same).

Other related provisions of the Clean Air Act support

EPA's reading of s 169A(g)(2) as permitting a region-wide

assessment. Section 169A(a)(3) directs EPA to undertake a

study to "identify the classes or categories of sources ...

which, alone or in conjunction with other sources ..., may

reasonably be anticipated to cause or contribute significantly

to impairment of visibility," 42 U.S.C. s 7491(a)(3) (emphasis

added), and s 169A(b)(1) directs that the regulations promul-

gated under s 169A take into account the recommendations

of that study, 42 U.S.C. s 7491(b)(1). Similarly, s 169B(a)(1)

instructs EPA to conduct research "to identify and evaluate

sources and source regions of ... visibility impairment." 42

U.S.C. s 7492(a)(1) (emphasis added); see id. s 7492(a)(2).

These provisions not only permit, but again appear to invite a

group-BART approach.

The court states that "under EPA's take on the statute, it

is ... entirely possible that a source may be forced to spend

__________

10 Reply Br. for Industry Pet'rs at 8 ("Industry Petitioners

agree ... that states are free to determine the weight and signifi-

cance to be assigned to each of the CAA s 169A(g)(2) factors."); see

Op. at 10; cf. American Textile Mfrs. Inst., Inc. v. Donovan, 452

U.S. 490, 510 (1981) ("When Congress has intended that an agency

engage in cost-benefit analysis, it has clearly indicated such intent

on the face of the statute."); Central Ariz., 990 F.2d at 1542 n.10

(holding that "Congress has not required 'cost-benefit' analysis in

the [Clean Air] Act").

millions of dollars for new technology that will have no

appreciable effect on the haze in any Class I area." Op. at

10. In accordance with the statute, however, EPA has struc-

tured the Haze Rule to avoid this result. The Rule creates

an evidentiary presumption that, if a source emits pollution

into an upwind region from which it can be shown that

pollution is transported downwind to a Class I area, then it

"may reasonably be anticipated" that the source "cause[s] or

contribute[s] to" impairment in the Class I area--and hence

that limiting the source's emissions will reduce that impair-

ment.11 But the presumption is not irrebuttable. To the

contrary, the Haze Rule incorporates the exemption provision

of s 169A(c)(1), which permits EPA to

exempt any major stationary source from the [BART]

requirement of subsection (b)(2)(A) of this section, upon

his determination that such source does not or will not,

by itself or in combination with other sources, emit any

air pollutant which may reasonably be anticipated to

cause or contribute to a significant impairment of visibili-

ty in any mandatory class I Federal area.

__________

11 The court does not dispute the reasonableness of this pre-

sumption. See American Iron & Steel Inst. v. EPA, 115 F.3d 979,

1000 (D.C. Cir. 1997) (holding that it is reasonable for EPA to

presume that if a pollutant is present in fish tissue at a level

exceeding that set by regulation, then any facility "that contributes

a pollutant to a body of water [in which the fish swims] ... has the

reasonable potential to contribute to that exceedence"); see also

Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462

U.S. 87, 103 (1983) (holding that a reviewing court must be "at its

most deferential" when the agency is "making predictions, within its

area of special expertise, at the frontiers of science"); American

Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027, 1055 (D.C. Cir. 1999)

("[W]e have expressly held that EPA's decision to adopt and set air

quality standards need only be based on reasonable extrapolations

from some reliable evidence." (internal quotation marks omitted)),

rev'd on other grounds sub nom. Whitman v. American Trucking

Ass'ns, Inc., 531 U.S. 457 (2001).

42 U.S.C. s 7491(c)(1); see also 40 C.F.R. ss 51.303,

.308(e)(4). Hence, a source that emits pollution into a source

region, but that can show that BART controls are unneces-

sary because its pollution does not contribute to a significant

impairment of visibility in a Class I area, will not have to

spend money installing BART controls.12 All that the Haze

Rule does is put the burden of proof on the polluter, rather

than on the state. Moreover, the statute's limitation of the

exemption to a source that does not by itself "or in combina-

tion with other sources" contribute to a significant impair-

ment, 42 U.S.C. s 7491(c)(1), once again invites the collective-

assessment approach taken by EPA.

Finally, one more provision of s 169A deserves repeat

mention here. As discussed in Part A above, s 169A(a)(4)

instructs EPA "to promulgate regulations to assure reason-

able progress toward meeting the national goal" of restoring

natural visibility conditions. 42 U.S.C. s 7491(a)(4). Yet

EPA's findings indicate that it will not be possible "to assure

reasonable progress" if the statutory interpretation an-

nounced today prevails: it is simply not practicable to deter-

mine, as the court's interpretation requires, how much a

particular "source is contributing to visual impairment in

downwind Class I areas," or the degree of improvement in

visibility in such areas "that would result from [a particular]

source's installing and operating" BART controls. Op. at 11,

10; see supra notes 4, 5. Indeed, EPA explained that it

"avoided inclusion of any approach in the regional haze rule

that required the assessment of the visibility improvement

attributed to an individual source because" the National

Academy of Sciences had determined that such an approach

was "doomed to failure." Resp. to Pets. for Recons. of

__________

12 The court correctly notes that under this exemption, it is

EPA rather than the state that determines whether a source has

made the required showing. EPA, however, does not rely on the

exemption to answer the state-authority issue discussed in Part C

below, but rather to counter the petitioners' claim that the Haze

Rule fails to provide a source with the opportunity to demonstrate

that it makes no appreciable contribution to visibility impairment in

a Class I area. Br. for EPA at 29-30, 32.

Regional Haze Rule 16 (Jan. 10, 2001) (J.A. at 17) (quoting

National Academy of Sciences, National Research Council,

Protecting Visibility in National Parks and Wilderness

Areas 7-8, 196-99 (1993) (J.A. at 362, 456-57)). We should

not lightly assume that Congress enacted a statute that

makes it impracticable to achieve the same statute's stated

goal. There certainly is nothing in the language of the Clean

Air Act that requires us to adopt such a self-defeating

construction.

C

The industry petitioners' second attack on the Haze Rule

marches under the banner of states' rights, but in this case

that banner is a false flag. The Rule gives states great

leeway to make the BART determinations required by the

Clean Air Act, reserving to EPA no more authority than

Congress conferred upon the agency. Moreover, as discussed

above, the industry petitioners' insistence that both EPA and

the states are barred from using group-BART principles will

impose an enormous unfunded mandate on the states--re-

quiring them to engage in lengthy, expensive, and likely

fruitless studies to trace pollutants from specific sources into

specific Class I areas.13 It is not surprising, therefore, that

only a single state has enlisted under the petitioner's banner.

Five others have filed briefs in support of EPA, while the

balance remain silent.

The industry petitioners attack, as unlawfully constraining

state authority, both the provision of the Haze Rule that

concerns which sources are subject to BART requirements,

and the provision that concerns the kind of BART controls

that must be installed on subject sources. With respect to

the former, the petitioners emphasize s 169A's declaration

that "each major stationary source ... which, as determined

by the State ... emits any air pollution which may reasonably

__________

13 See supra notes 4, 5; Br. for Maine, et al. at 10 (protesting

that to adopt the industry petitioners' interpretation of s 169A(g)(2)

"would impose staggering and costly administrative burdens" on the

states).

be anticipated to cause or contribute to any impairment of

visibility" in a Class I area, is subject to BART requirements.

42 U.S.C. s 7491(b)(2)(A) (emphasis added). With respect to

the latter, they stress that s 169A requires that each subject

source install "the best retrofit technology, as determined by

the State," 42 U.S.C. s 7491(b)(2)(A), and that "in determin-

ing best available retrofit technology the State ... shall take

into consideration" the five factors discussed in Part B above,

id. s 7491(g)(2) (emphasis added). By directing the states to

employ a group-BART analysis in making these determina-

tions, the industry petitioners contend, and the court agrees,

that EPA has unlawfully constrained the states' decisionmak-

ing authority. Op. at 11-13.

The Haze Rule, however, does not contravene the statutory

commands italicized above. Under the Rule, it is the state

and not EPA that determines which specific sources emit

pollution that "may reasonably be anticipated to cause or

contribute to" impairment, and hence are subject to BART

requirements. All that EPA has done, as explained in Part

B, is reasonably interpret that phrase to include sources that

emit pollution into upwind regions from which pollution is

transported to national parks. It is still the state that must

determine both that the source emits covered pollutants, and

that the region into which the source emits such pollutants is

one from which emissions may reasonably be anticipated to

be transported to downwind parks. See 40 C.F.R.

s 51.308(e)(1)(ii); Regional Haze Regulations, 64 Fed. Reg. at

35,739-41; Br. for EPA at 43. Similarly, it is still the state

that must take into consideration the five statutory factors

and the state that must then determine the best available

retrofit technology for a particular source. All that EPA has

done, again as explained in Part B, is reasonably interpret the

fifth of those factors to require the state to analyze the

degree of anticipated improvement on a group basis. See

Regional Haze Regulations, 64 Fed. Reg. at 35,741.

Moreover, the Clean Air Act expressly delegates to EPA

the authority to make these kinds of judgments. As already

noted, s 169A directs EPA to promulgate regulations to

assure reasonable progress toward meeting the national goal

of restoring natural visibility. 42 U.S.C. s 7491(a)(4). It

further instructs that those regulations shall "provide guide-

lines to the States ... on appropriate techniques and meth-

ods for implementing" the section's provisions, including the

provisions governing which sources are subject to BART

requirements and the kind of BART controls that should be

imposed. Id. s 7491(b)(1). The section likewise directs EPA

to "require each applicable implementation plan for a State

... to contain such emission limits, schedules of compliance

and other measures as may be necessary to make reasonable

progress toward meeting the national goal" of restoring natu-

ral visibility. Id. s 7491(b)(2). Similarly, the next section of

the Act, s 169B, orders EPA to "carry out [its] regulatory

responsibilities" under s 169A by promulgating "criteria for

measuring 'reasonable progress' toward the national goal."

42 U.S.C. s 7492(e)(1). These provisions give EPA ample

authority to promulgate guidelines requiring states to use

group-BART principles to determine both the sources that

are subject to BART requirements and the kinds of controls

those sources must install.

My colleagues contend that the Conference Report on the

1977 Clean Air Amendments reinforces their view that the

Haze Rule impermissibly constrains state authority. Op. at

13. But that report is a weak reed upon which to rest a

Chevron step one claim regarding the Act's plain meaning.

As the court recounts, the report merely states that the

conference "agreement clarifies that the State, rather than

the Administrator, identifies the source that impairs visibili-

ty," and that in determining the appropriate BART controls

for such a source, "the state shall determine what constitutes

'best available retrofit technology' ... in establishing emis-

sion limitations on a source-by-source basis." H.R. Conf.

Rep. No. 95-564, at 535 (1977). The report tells us nothing

more about the referenced "agreement" than can be gleaned

from these quotations, and the quotations themselves do little

more than restate the statutory language. Moreover, as

noted above, the Haze Rule is consistent with these quota-

tions: under the Rule, it is the state rather than EPA that

identifies the sources that impair visibility, and it is the state

that determines the best available retrofit technology for each

such individual source. All that the group-BART provisions

of the Rule do is effectuate EPA's authority to "provide

guidelines to the states" for making these determinations

regarding particular sources. 42 U.S.C. s 7491(b)(1).14

As the Clean Air Act repeatedly declares, restoring natural

visibility to national parks and wilderness areas is a "nation-

al" goal. See id. s 7491(a)(1), (a)(4), (b)(2), (b)(2)(B); id.

s 7492(e)(1). It is not surprising, therefore, that while the

Act leaves many determinations regarding particular sources

to the states, it grants EPA authority to establish national

guidelines for the kind of analysis the states must employ in

making those determinations.15 Under the statute, those

guidelines must "assure ... reasonable progress toward

meeting the national goal" of restoring natural visibility. Id.

s 7491(a)(4). Because EPA has reasonably determined that

group-BART principles are necessary to provide such assur-

ance, the provisions of the Haze Rule that incorporate those

__________

14 The court states that the "agreement" referred to in the

report was an agreement to reject the provisions of an earlier

House bill. As there may have been many reasons for rejecting

that bill, the "[r]ejection of [the] proposed legislation during the

course of enactment provides a hazardous basis from which to

determine legislative intent," GAO v. GAO Pers. Appeals Bd., 698

F.2d 517, 525 n.52 (D.C. Cir. 1983), and a particularly hazardous

foundation for a Chevron step one claim. In any event, the most

the court can divine regarding the content of the agreement is that

it was to insert language clarifying that the states were to "deter-

mine whether a source contributes to visibility impairment and, if

so, what BART controls should be applied to that source." Op. at

13. As noted in the text, the Haze Rule leaves both determinations

in the hands of the states.

15 Cf. Appalachian Power Co. v. EPA, 249 F.3d 1032, 1047

(D.C. Cir. 2001) (holding that a state's development of its implemen-

tation plan under CAA s 110 is not "free of extrinsic legal con-

straints," including EPA's reasonable construction of CAA s 126).

principles are a permissible exercise of the agency's delegated

power.

D

In sum, there is nothing in the language, structure or

history of the Clean Air Act that bars EPA from promulgat-

ing the group-BART provisions of its Haze Rule. To the

contrary, those provisions represent "a reasonable interpreta-

tion of an ambiguous statute," and therefore must be given

effect by this court. Christensen v. Harris County, 529 U.S.

576, 586 (2000) (citing Chevron, 467 U.S. at 842-844). Ac-

cordingly, I respectfully dissent from the court's decision to

strike down those provisions.