Sierra Club v. Environmental Protection Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 4, 2002 Decided July 2, 2002

Nos. 01-1070 & 01-1158

Sierra Club, Petitioner

v.

Environmental Protection Agency and

Christine Todd Whitman, Administrator

Respondents

On Petitions for Review of an Order of the

Environmental Protection Agency

David S. Baron argued the cause for petitioner. With him

on the briefs was Howard I. Fox.

Martin F. McDermott, Attorney, U.S. Department of Jus-

tice, argued the cause for respondents. With him on the brief

were John C. Cruden, Assistant Attorney General, and Sara

Schneeberg, Attorney, U.S. Environmental Protection Agen-

cy. David A. Carson, Attorney, U.S. Department of Justice,

entered an appearance.

Thurbert E. Baker, Attorney General, State of Georgia,

Patricia T. Barmeyer, Special Assistant Attorney General,

Jeremiah W. (Jay) Nixon, Attorney General, State of Mis-

souri, James R. Layton, Solicitor, James E. Ryan, Attorney

General, State of Illinois, A. Benjamin Goldgar, Assistant

Attorney General, and Donald Trahan were on the brief for

amici curiae State of Georgia, et al., in support of respon-

dent. Katherine L. Rhyne entered an appearance.

Randolph A. Beales, Attorney General, Commonwealth of

Virginia, Roger L. Chaffe, Senior Assistant Attorney General,

and Carl Josephson, Assistant Attorney General, were on the

brief for amicus curiae Commonwealth of Virginia, in support

of respondent.

Albert M. Ferlo, Jr., Sheila D. Jones, and John J. Bosley

were on the brief for amicus curiae Metropolitan Washington

Air Quality Committee, in support of respondent.

Before: Ginsburg, Chief Judge, Edwards and Sentelle,

Circuit Judges.

Opinion for the Court filed by Chief Judge Ginsburg.

Ginsburg, Chief Judge: The Sierra Club petitions for re-

view of a decision by the Environmental Protection Agency

approving revisions to the state implementation plans for

ozone in the Washington, D.C. Metropolitan Area. The Club

contends the EPA was without authority to approve revised

SIPs that extend the Area's deadline for attainment and do

not provide for the States concerned to adopt reasonably

available control measures, annual rates of progress in reduc-

ing emissions, and specific contingency measures to take

effect should the Area fail to achieve scheduled reductions in

emissions.

We hold that the EPA exceeded its authority and that its

decision is otherwise arbitrary and capricious in the above

respects. Therefore, we grant the petition and remand this

matter to the EPA for further proceedings.

I. Background

Section 109 of the Clean Air Act directs the EPA to

promulgate National Ambient Air Quality Standards

(NAAQS) for ozone, see 42 U.S.C. s 7409, and Title V of the

Act delegates to the states primary responsibility for imple-

menting those standards, see id. ss 7407, 7410. A state

discharges this responsibility by developing and enacting a

state implementation plan (SIP) that provides for "implemen-

tation, maintenance, and enforcement" of the standards in

each "air quality control region" within its jurisdiction, sub-

ject to the EPA's approval and supervision. Id. s 7410(a)(1).

If an area "does not meet the NAAQS or it contributes to

ambient air quality in a nearby area that does not meet the

NAAQS," then the EPA designates the area as one of "nonat-

tainment," id. s 7407(d)(1)(A), and classifies the degree of

nonattainment in the area as marginal, moderate, serious,

severe, or extreme, see id. s 7511(a), (b)(2). This classifica-

tion determines both the date by which the area must attain

the NAAQS and the stringency of the measures that the area

must implement in the meantime to reduce emissions of

volatile organic compounds (VOCs) and oxides of nitrogen

(NOx), both of which are the precursors of ozone. See id.

s 7511(a).

All states were required to revise their SIPs to bring any

areas of "serious" nonattainment into attainment "as expedi-

tiously as practicable but not later than" November 15, 1999.

Id. ss 7511(a)(1), 7511a(c)(2)(A). The Act specifies that a

revised SIP must contain certain elements, including: "the

implementation of all reasonably available control measures

[RACM]," id. s 7502(c)(1); annual demonstrations of "reason-

able further progress," id. s 7502(c)(2), defined--with an

exception not here relevant--as a reduction in the emission of

VOCs at a rate of "at least 3 percent of baseline emissions

each year," id. s 7511a(c)(2)(B)(i); and contingency measures

"to be undertaken if the area fails to make reasonable further

progress, or to attain" the NAAQS by November 15, 1999, id.

s 7502(c)(9). The states were required to submit the revised

SIPs to the EPA for approval, which the Agency was re-

quired to grant if the "revision [met] all the requirements ...

[and] would be adequate to attain and maintain the [NAAQS]

by the attainment date specified." Id. s 7509a(a)(1), (2).

An area of serious nonattainment that failed to reach

attainment by the deadline was to be reclassified by operation

of law to "severe" nonattainment status. See id.

s 7511(b)(2)(i). The deadline for attainment would then be

extended until November 15, 2005, see id. s 7511(a)(1), but

the area would be required again to revise its SIP to imple-

ment still more rigorous programs for monitoring and reduc-

ing emissions, see id. s 7511(b)(2)(A)(i).

The Washington, D.C. Metropolitan Area comprises the

District of Columbia and several counties each in Maryland

and Virginia. In 1991 the EPA declared the Washington

Area to be in "serious" nonattainment of the NAAQS for

ozone. See Designation of Areas for Air Quality Planning

Purposes, 56 Fed. Reg. 56,694, 56,738, 56,772, 56,841 (Nov. 6,

1991) (codified respectively at 40 C.F.R. ss 81.309, .321, .347

(2002)). In response, the District of Columbia Department of

Health, the Maryland Department of the Environment, and

the Virginia Department of Environmental Quality (hereinaf-

ter referred to as "the States") submitted nonattainment

SIPs for the Washington Area, see Approval & Promulgation

of Air Quality Implementation Plans, 66 Fed. Reg. 586 (Jan.

3, 2001) (Approval), pursuant to section 172(b) of the Act, 42

U.S.C. s 7502(b).

The three proposed SIPs did not provide for attainment by

November 15, 1999. See Proposed Rule, Approval & Promul-

gation of Air Quality Implementation Plans, 64 Fed. Reg.

70,460, 70,476-77 (Dec. 16, 1999) (Proposed Approval). In-

stead, the States requested that the EPA extend the attain-

ment deadline for the Washington Area until November 15,

2005 without reclassifying as "severe" the nonattainment

status of the Area. See id. The EPA previously had recog-

nized that for certain "downwind areas, transport [of ozone]

from upwind areas ha[d] interfered with their ability to

demonstrate attainment" by the deadlines established in the

Act. Extension of Attainment Dates for Downwind Trans-

port Areas, 64 Fed. Reg. 14,441, 14,442 (Mar. 25, 1999). As a

result, according to the EPA, many downwind areas "fac[ed]

the prospect of being reclassified ... to a higher nonattain-

ment classification in spite of the fact that pollution that is

beyond their control contributes to the levels of ozone they

experience." Id. With this in mind, the Agency granted the

States' request for an extension, see Approval, 66 Fed. Reg.

at 630-31, determining that the transport of ozone and its

precursors into the Washington Area could delay the date by

which the Area would reach attainment, id.

The States did not propose in their revised SIPs to adopt

any RACM, and the EPA concluded that none was warranted

because "additional emission control measures would not ad-

vance the attainment date." Id. at 608/1. Nor did the

revised SIPs provide for annual rates of progress (ROP) in

reducing emissions for the years after 1999, see id. at 603; or

for any contingency measures "to make up for any emission

reduction shortfall, either in achievement of ROP milestones

or for failure to attain" the NAAQS, see id. at 615/2. The

EPA determined that these omissions, too, were warranted.

It deemed the ROP requirement "unreasonable" in light of

the transport of ozone into the Washington Area, id. at 603/2,

and it held that contingency measures are not mandatory

elements of a SIP revision that establishes the attainment

deadline and ROP for an area, see id. at 615/3. Consequent-

ly, the Agency approved the revised SIPs.

The Sierra Club now petitions for review of that decision.

Amicus briefs have been filed by the Metropolitan Washing-

ton Air Quality Committee, the State of Virginia, and the

States of Georgia, Illinois, Louisiana, and Missouri, all in

support of the EPA's decision approving the revised SIPs.

II. Analysis

The Sierra Club claims that the Approval is unlawful for

four reasons: (1) the EPA had no authority to extend the

attainment deadline for the Washington Area; (2) the EPA

applied an unreasonable standard for determining whether a

control measure is "reasonably available" for purposes of

s 172(c)(2) of the Act; (3) the Act prohibits the EPA from

approving a SIP that does not provide for ROP reductions;

and (4) the Act prohibits the EPA from approving a SIP that

does not include contingency measures.

We review the EPA's interpretation of the Clean Air Act

under the standards set out in Chevron U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). If the

Congress "has directly spoken to the precise question at

issue," id. at 842, then we must "give effect to [its] unambigu-

ously expressed intent," id. at 843. If, however, the intent of

the Congress is ambiguous with respect to the question

before us, then we defer to the Agency's interpretation if it is

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

A. Extension of the Attainment Deadline

We agree with the Sierra Club that the plain terms of the

Act preclude an extension of the sort the EPA granted here.

Pursuant to s 181(a)(1), 42 U.S.C. s 7511(a)(1), "each" area of

"serious" nonattainment was required to meet the NAAQS by

November 15, 1999. That deadline could be extended in

certain limited circumstances or when an area was reclassi-

fied as one of "severe" nonattainment. Id. s 7511(b)(2)(i), (3).

In this case, the EPA neither determined that the Washing-

ton Area fit those limited circumstances nor acknowledged

that the Area was reclassified as "severe."

The EPA characterizes the issue before the court as fol-

lows: "whether an attainment date extension is available

without an accompanying reclassification to 'severe' nonat-

tainment status where the Washington area's ability to attain

has been demonstrably compromised by upwind emissions

outside its control." Fair enough, but as the Sierra Club

points out, the Act details the conditions in which the EPA

may extend the attainment deadline, without reclassification,

to account for upwind emissions that compromise an area's

ability to come into attainment, and none of them is implicat-

ed here. For example, the Act exempts from the attainment

deadlines any area that would be in attainment "but for

emissions emanating from outside of the United States," 42

U.S.C. s 7509a(b); and "an[y] ozone nonattainment area that

does not include, and is not adjacent to, any part of a

Metropolitan Statistical Area," id. s 7511a(h)(1), provided the

"emissions within the area do not make a significant contribu-

tion to the ozone concentrations measured in the area or in

other areas," id. s 7511a(h)(2). We cannot but infer from the

presence of these specific exemptions that the absence of any

other exemption for the transport of ozone was deliberate,

and that the Agency's attempt to grant such a dispensation is

contrary to the intent of the Congress.

The EPA also contends the Approval "falls within this

Court's parameters for when it will look beyond a 'literal'

reading of a statute," but the Agency does not show that this

is one of those "rare cases [in which] the literal application of

a statute will produce a result demonstrably at odds with the

intentions of its drafters." Engine Mfrs. Ass'n v. EPA, 88

F.3d 1075, 1088 (D.C. Cir. 1996). Because our "role is not to

'correct' the text so that it better serves the statute's pur-

poses," id., we will not "ratify an interpretation that abro-

gates the enacted statutory text absent an extraordinarily

convincing justification," Appalachian Power Co. v. EPA, 249

F.3d 1032, 1041 (D.C. Cir. 2001). Here the EPA asserts that

"[a]s a matter of 'logic and statutory structure,' Congress

'almost surely' could not have meant to require" the Agency

to treat the Washington Area as one of severe nonattainment

merely because its "attainment has been temporarily stalled

due to transported pollution." This assurance does nothing

to persuade us that, although s 181(a)(1), 42 U.S.C.

s 7511(a)(1), as written sets a deadline without an exception

for setbacks owing to ozone transport, "all the other evidence

from the statute points the other way," United States Nat'l

Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S.

439, 455 (1993); see also Engine Mfrs., 88 F.3d at 1088

("there must be evidence that Congress meant something

other than what it literally said before a court can depart

from plain meaning").

We reject also the EPA's argument that we must accept its

interpretation of the Act in order to give effect to the

"broader congressional intent not to punish downwind areas

affected by ozone transport." The most reliable guide to

congressional intent is the legislation the Congress enacted

and, as we have seen, the Act itself reveals no intention to

allow for an extension in circumstances like those affecting

the Washington Area. Similarly, it is of no moment that the

extension may be, as the Agency claims, "a reasonable accom-

modation of ... the statutory attainment date and interstate

transport provisions"; it is not the accommodation the Con-

gress made. An agency may not disregard "the Congression-

al intent clearly expressed in the text simply by asserting

that its preferred approach would be better policy." Engine

Mfrs., 88 F.3d at 1089.

Finally, the EPA argues that our decision in Natural Res.

Def. Council, Inc. v. EPA, 22 F.3d 1125, 1135 (D.C. Cir. 1994),

approving its extension of the deadlines by which states had

to submit elements of their SIPs, compels a similar result in

this case. Although we upheld the EPA's decision in that

case to extend the deadline for compliance with a procedural

requirement of the Act, the Agency's failure to meet its own

deadline for providing guidance to the states necessitated that

we do so, see id., 22 F.3d at 1135 ("The agency's failure to

meet its November 15, 1991 deadline ... made it impossible

for states ... to meet their November 15, 1992 ... submis-

sion deadline"). In extending another procedural deadline

under similar circumstances, we since have emphasized the

importance that "the attainment deadlines remain intact,

complete with additional program obligations in the event of

nonattainment, irrespective of a state's dereliction of the SIP

process," NRDC v. Browner, 57 F.3d 1122, 1127 (D.C. Cir.

1995). Unlike the various deadlines by which the states must

submit proposals, the attainment deadlines are "central to the

... regulatory scheme and ... leave[ ] no room for claims of

technological or economic infeasibility." Union Elec. Co. v.

EPA, 427 U.S. 246, 258 (1976).

In sum, to permit an extension of the sort urged by the

EPA would subvert the purposes of the Act. Cf. NRDC v.

Browner, 57 F.3d at 1128 (extension of procedural deadline

"not incompatible with the multi-faceted statutory scheme as

a whole"). Therefore, we hold that the EPA was without

authority in the Act or in our precedent to extend the

attainment deadline for the Washington Area.

B. Reasonably Available Countermeasures

Section 172(c)(1) of the Act directs that a state's revised

SIP "shall provide for the implementation of all reasonably

available control measures [RACM] as expeditiously as prac-

ticable." 42 U.S.C. s 7502(c)(1). As the EPA has interpret-

ed s 172(c)(1), a state must "consider all potentially available

measures to determine whether they [a]re reasonably avail-

able for implementation in the area, and whether they would

advance the [area's] attainment date." Approval, 66 Fed.

Reg. at 607/3. The state may "reject measures as not being

RACM," however, if "they would not advance the attainment

date, would cause substantial widespread and long-term ad-

verse impacts, or would be economically or technologically

infeasible." Id. at 608/1.

The proposed revisions to the SIPs for the Washington

Area "contained no measures adopted for the sole purpose of

satisfying the RACM requirement," id. at 609/3, so the EPA

reviewed on its own initiative all control measures that could

qualify as RACM under its definition, see id. at 607/3. After

considering "all potential categories of stationary and mobile

sources that could provide additional emission reduction," id.

at 611/2, the EPA "concluded that additional emission control

measures would not advance the attainment date and there-

fore do not constitute RACM," id. at 608/1.

The Sierra Club maintains that treating as potential RACM

only those measures that would advance the date at which an

area reaches attainment "conflicts with the Act's text and

purpose and lacks any rational basis." This is a misreading

of both text and context.

The Act, on its face, neither elaborates upon which control

measures shall be deemed "reasonably available," nor com-

pels a state to consider whether any measure is "reasonably

available" without regard to whether it would expedite attain-

ment in the relevant area. Further, the EPA reasonably

concluded that because the Act "use[s] the same terminology

in conjunction with the RACM requirement" as it does in

requiring timely attainment, compare 42 U.S.C. s 7502(c)(1)

(requiring implementation of RACM "as expeditiously as

practicable but no later than" the applicable attainment dead-

line), with id. s 7511(a)(1) (requiring attainment under same

constraints), the RACM requirement is to be understood as a

means of meeting the deadline for attainment, Approval, 66

Fed. Reg. at 610/2. Because the statutory provision is ambig-

uous and the EPA's construction of the term "RACM" is

reasonable, we defer to the Agency. See Chevron, 467 U.S.

at 843.

The Sierra Club also claims it was unreasonable for the

EPA to reject certain measures as RACM on the ground that

they could not be implemented without "intensive and costly

effort." Far from erecting thereby an unreasonably "subjec-

tive and undefined" standard, as the Sierra Club argues, see

Pearson v. Shalala, 164 F.3d 650, 660-61 (D.C. Cir. 1999), the

EPA here did no more than give familiar content to an

insufficiently specified concept. The Congress's choice of the

phrase "reasonably available" clearly bespeaks its intention

that the EPA exercise discretion in determining which control

measures must be implemented, and neither that phrase nor

any other in s 172(c)(1) suggests that the Congress intended

to preclude the EPA, in so doing, from considering the costs

of its decisions. Compare Natural Res. Def. Council, Inc. v.

EPA, 824 F.2d 1146, 1157 (D.C. Cir. 1987) (en banc) (rejecting

"position that, as a matter of statutory interpretation, cost

and technological feasibility may never be considered under

the Clean Air Act unless Congress expressly so provides"),

with Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 465

(2001) (cost considerations precluded when statute "instructs

the EPA to set primary ambient air quality standards 'the

attainment and maintenance of which ... are requisite to

protect the public health' with 'an adequate margin of safe-

ty' ") (quoting 42 U.S.C. s 7409(b)(1)).

That the EPA's definition of RACM is valid does not end

the matter, however; as the Sierra Club points out, the

Agency failed to consider whether any particular measures

fell within that definition. In its Proposed Approval, the

EPA noted that "measures ... such as retrofitting diesel

trucks and buses, and controlling ground service equipment

at airports [could] ... if taken together ... provide signifi-

cant emission reductions for attainment purposes." 64 Fed.

Reg. at 70,468. The EPA made no mention of these mea-

sures or measures like them, however, either in its analysis of

potential RACM for the Washington Area or in the Approval

document. This omission--whether the result of inadver-

tence or of an unexplained change of course--renders the

EPA's decision arbitrary and capricious. See Motor Vehicle

Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

57 (1983) ("an agency changing its course must supply a

reasoned analysis"). Consequently, we must invalidate the

Approval of the revised SIPs and remand this matter to the

EPA to determine which measures, if any, are RACM to be

implemented by the States in this case.

C. Rate of Progress Reductions

The Sierra Club argues next that the EPA could not

approve the SIPs for the Washington Area because the plans

fail to provide for rate of progress reductions for the years

after 1999. We agree.

The Act provides that revisions to a SIP for an area of

serious nonattainment must reduce the emission of VOCs by

"at least 3 percent of baseline emissions each year," unless

the EPA determines that a lesser reduction is called for "in

light of technological achievability." 42 U.S.C.

s 7511a(c)(2)(B)(i), (ii). As the Sierra Club observes, there-

fore, with an attainment date in 2005, "the rate of progress

plan for the Washington area had to demonstrate a 9%

reduction in emissions from 1996 to 1999, another 9% from

1999 to 2002, and another 9% from 2002 to 2005." Yet the

SIPs provide for no reductions after 1999, and the EPA

approved the omission on the ground that "it would be

unreasonable to lock the downwind area into fixed progress

requirement reductions from local sources, when the combi-

nation of local reductions with upwind area source emission

reductions is what will bring the area into attainment." Ap-

proval, 66 Fed. Reg. at 603/2.

The EPA's reason is of no moment. The Act by its terms

makes the 3% annual minimum rate of progress a prerequi-

site for approval of a revised SIP. The EPA therefore had

no authority to approve the SIPs for the Washington Area

notwithstanding the omission of a rate of progress plan for

the years after 1999.

D. Contingency Measures

Finally, the Sierra Club argues that the absence of contin-

gency measures also precludes approval of the revised SIPs

for the Washington Area. Again, we agree.

Section 172(c)(9) of the Act requires that a revised SIP

include "specific measures to be undertaken if the area fails

to make reasonable further progress, or to attain the national

primary ambient air quality standard by the attainment

date." 42 U.S.C. s 7502(c)(9); see also id. s 7511a(c)(9)

(revised SIP for area of serious nonattainment "shall provide

for the implementation of specific measures to be undertaken

if the area fails to meet any applicable milestone"). The EPA

maintains that "contingency measures are required as part of

the overall nonattainment plan, not as a feature of each

component of that plan." Compare 42 U.S.C. s 7502(c)(9)

("plan shall provide for the implementation" of contingency

measures), with, e.g., id. s 7502(c)(1) ("plan provisions shall

provide" for implementation of RACM). Therefore, says the

EPA, it lawfully could approve the revised provisions of the

SIPs for the Washington Area despite the absence of contin-

gency measures therein.

The answer to the EPA's argument is, as the Sierra Club

points out, to be found in s 172(c), which lists the elements

that must be included in a revised SIP for an area in

nonattainment. That section specifically declares:

The plan provisions (including plan items) required to

be submitted under this part shall comply with the

following: ...

(9) Contingency measures

Such plan shall provide for the implementation of

specific measures to be undertaken if the area fails to

make reasonable further progress, or to attain the na-

tional primary ambient air quality standard by the at-

tainment date applicable under this part. Such measures

shall be included in the plan revision as contingency

measures to take effect in any such case without further

action by the State or the Administrator.

Id. s 7502(c); see also id. s 7511a(c)(9) (requiring that con-

tingency measures "be included in the plan revision" for area

of serious nonattainment).

As can be seen from the statute itself, the EPA simply errs

in suggesting that a state need not include contingency

measures in the revisions to the SIP it submits for an area of

nonattainment. For this reason, too, the EPA lacked authori-

ty to approve the revised SIPs submitted by the States in this

case.

III. Conclusion

For the foregoing reasons, the EPA's approval of the

revised SIPs for the Washington Metropolitan Area is vacat-

ed, and this matter is remanded to the Agency for further

consideration.

So ordered.