Del. Dep't of Natural Res. & Envtl. Control v. Envtl. Prot. Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 5, 2017 Decided July 10, 2018

No. 16-1230

DELAWARE DEPARTMENT OF NATURAL RESOURCES AND

ENVIRONMENTAL CONTROL,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

On Petition for Judicial Review of Final Action

of the United States Environmental Protection Agency

Valerie M. Edge, Deputy Attorney General, Office of the

Attorney General for the State of Delaware, argued the cause

and filed the briefs for petitioner.

Phillip R. Dupré, Attorney, U.S. Department of Justice,

argued the cause for respondent. With him on the brief was

John C. Cruden, Assistant Attorney General, at the time the

brief was filed.

Before: ROGERS and GRIFFITH, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

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GRIFFITH, Circuit Judge: The Clean Air Act authorizes the

Environmental Protection Agency to set national air-quality

standards. The Act also permits the agency to extend the

deadline for areas to comply with those standards. Here, the

agency granted an extension for a multistate region to comply

with national ozone standards. Delaware, one of the four states

partially within the multistate region, petitions for review of the

agency’s decision. We deny Delaware’s petition.

I

A

The Clean Air Act (the “Act”) requires the Environmental

Protection Agency (EPA) to identify pollutants that “may

reasonably be anticipated to endanger public health or

welfare.” 42 U.S.C. § 7408(a)(1)(A). Pursuant to that duty,

EPA formulates National Ambient Air Quality Standards

(NAAQS) that identify the maximum permissible

concentrations of these pollutants in the air. See id. §§ 7408-

09. Ozone is one pollutant for which EPA has promulgated

NAAQS. See 40 C.F.R. pt. 50.

Once EPA promulgates new or revised NAAQS, it

segments the country into areas for enforcing the NAAQS.

Some areas lie within a single state while others encompass

portions of two or more states. EPA designates each area as

“attainment,” “nonattainment,” or “unclassifiable” with respect

to the NAAQS. 42 U.S.C. § 7407(d)(1)(A), (B). “Attainment”

areas meet the relevant NAAQS; “nonattainment” areas violate

the NAAQS or contribute to NAAQS violations in a nearby

area; and “unclassifiable” areas are those for which EPA lacks

sufficient information to determine compliance. Id.

§ 7407(d)(1)(A)(i)-(iii). EPA further divides ozone

3

nonattainment areas into five subcategories: marginal,

moderate, serious, severe, and extreme. Id. § 7511(a)(1).

Once assigned a NAAQS designation, states must adopt

and implement “state implementation plans” (SIPs) to attain,

maintain, and enforce the NAAQS. Id. § 7410. SIPs adopted by

states in nonattainment areas must include measures providing

for attainment of the NAAQS “as expeditiously as practicable.”

Id. § 7502(a)(2)(A), (B). Every area designated as

nonattainment for ozone NAAQS must come into attainment

within a time period set by the Act, based on the area’s ozone

subcategory. Id. § 7511(a)(1). If a nonattainment area for ozone

misses its deadline for attainment, EPA generally must bump

the area up to the next most urgent subcategory and impose

additional regulatory responsibilities on the states composing

that area. Id. § 7511(b)(2)(A).

However, the Act also permits EPA to grant extensions for

an area to meet its attainment deadline for ozone NAAQS. That

provision reads:

Upon application by any State, the Administrator may

extend for 1 additional year (hereinafter referred to as the

“Extension Year”) the date specified [in the Act] if—

(A) the State has complied with all requirements and

commitments pertaining to the area in the applicable

implementation plan, and

(B) no more than 1 exceedance of the national

ambient air quality standard level of ozone has

occurred in the area in the year preceding the

Extension Year.

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No more than 2 one-year extensions may be issued under

this paragraph for a single nonattainment area.

Id. § 7511(a)(5).

B

In 2008, EPA updated the ozone NAAQS. See NAAQS for

Ozone, 73 Fed. Reg. 16,436 (Mar. 27, 2008). EPA then

designated forty-five regions across the country as

nonattainment areas, including the “Philadelphia Area,” taking

in parts of Delaware, Maryland, New Jersey, and Pennsylvania.

EPA classified the area as “marginal nonattainment” and set its

attainment date for July 20, 2015.

Around the time of that date, EPA received requests from

Maryland, New Jersey, and Pennsylvania for a one-year

extension under 42 U.S.C. § 7511(a)(5). In their requests,

Maryland and Pennsylvania certified that they had complied

with their SIPs. Although Delaware had not submitted any such

request, EPA proposed a rule finding the entire Philadelphia

Area eligible for a one-year extension. See Determinations of

Attainment by the Attainment Date, 80 Fed. Reg. 51,992,

51,996-97 (Aug. 27, 2015). EPA explained that under

§ 7511(a)(5), if “any state with jurisdiction over the

nonattainment area requests such extension, the Agency will

consider granting the request provided that the criteria in

[§ 7511(a)(5)(A), (B)] are met for all of the governing states.”

In other words, EPA maintained that “application by any State”

in § 7511(a)(5) could be satisfied by application of fewer than

all states in a multistate nonattainment area. However, EPA

also concluded an area could not qualify for an extension unless

every state in a nonattainment area—including those that had

never submitted a request—complied with its own SIP. Even

though Delaware decided not to request an extension, EPA

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proposed finding that the state had complied with its ozone SIP.

See J.A. 19; see also 80 Fed. Reg. at 51,997 n.10.

Before granting the extension, EPA received comments

from Delaware and environmental groups. Delaware

commented that it “would like to support EPA’s proposal

because the only alternative . . . appears to be a ‘bump-up’ of

portions of Delaware to a moderate nonattainment

classification.” But Delaware also criticized EPA for focusing

on attainment-date extensions instead of taking direct action

against ozone emissions from upwind states that Delaware

believed were responsible for the Philadelphia Area’s

continued inability to reach attainment.

Meanwhile, the environmental groups EarthJustice and

Sierra Club argued that EPA’s proposed extension would be

unlawful because Delaware had not joined in the request. The

groups interpreted § 7511(a)(5) to permit extensions for

multistate areas only when every state in the area applies for an

extension. The groups highlighted that EPA had previously

required unanimity when states in a multistate nonattainment

area request a voluntary “bump-up” to a higher nonattainment

subcategory. The groups also argued that an extension would

be arbitrary and capricious because EPA failed to find that the

four Philadelphia Area states had “complied with all

requirements and commitments pertaining to the area in [their

SIPs].” 42 U.S.C. § 7511(a)(5)(A). Instead, EPA unreasonably

relied on self-certifications of compliance made by Maryland

and Pennsylvania. Moreover, according to the groups, nothing

in the record suggested Delaware or New Jersey was in

compliance, and neither claimed it was.

In May 2016, EPA promulgated its final rule granting the

Philadelphia Area a one-year extension to meet the 2008 ozone

NAAQS. See Determinations of Attainment by the Attainment

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Date, 81 Fed. Reg. 26,697 (May 4, 2016). EPA addressed each

of the environmental groups’ critiques. First, EPA explained

that its decision to grant the extension was reasonable because

requiring unanimity among affected states for an attainment-

date extension is different than requiring unanimity when

“bumping up” a classification. See id. at 26,701-02. In

particular, extending an attainment date “imposes no additional

obligation upon any state” while a voluntary reclassification

“can impose significant new attainment planning and emission

reduction obligations.” Id. at 26,702.

Furthermore, EPA maintained that it could reasonably rely

on Maryland’s and Pennsylvania’s self-certifications of SIP

compliance. EPA appealed to the “state and federal partnership

in implementing the [Act]” to justify the agency’s reliance on

the self-certifications. Id. at 26,704. EPA further indicated that

absent any “demonstration that suggests any of the states

receiving an attainment date extension are not in compliance

with their SIPs . . . EPA is disinclined to invalidate the

certifications made by the states.” Id.

EPA also responded that when states fail to certify their

compliance, the agency still has authority under the Act to

apply “its own knowledge and expertise” and conduct an

independent review. Id. at 26,702. EPA reviewed Delaware’s

and New Jersey’s applicable SIPs and determined that no

enforcement actions were pending against the states for

noncompliance with them. Therefore, EPA concluded that both

states had met the compliance requirement of § 7511(a)(5)(A).

Id. at 26,703.

In July 2016, Delaware filed a petition for review of EPA’s

May 2016 rule with this court, raising essentially the same

arguments made by the environmental groups during the

rulemaking. We have jurisdiction under the Act. 42 U.S.C.

7

§ 7607(b)(1); see also Dalton Trucking, Inc. v. EPA, 808 F.3d

875, 879 (D.C. Cir. 2015).

II

On our own motion, we asked the parties to address

whether Delaware’s comments during the rulemaking

precluded it from obtaining judicial review of EPA’s final rule

extending the attainment date for the Philadelphia Area. After

hearing argument on the matter, we are persuaded that

Delaware may petition this court for review of EPA’s decision.

A petitioner may not “take a position in this court opposite

from that which it took below, particularly when its position

has prevailed before the agency.” S. Pac. Transp. Co. v. ICC,

69 F.3d 583, 588 (D.C. Cir. 1995). Our application of this

principle in South Coast Air Quality Management District v.

EPA, 472 F.3d 882 (D.C. Cir. 2006), is instructive. Ohio had

commented during an EPA rulemaking that the agency’s

proposed approach “would be a reasonable interpretation” of

the Act. Id. at 891. Then, before this court, Ohio argued that

the very approach it had deemed reasonable during the

rulemaking was, in fact, unreasonable. See id. We held that

Ohio’s obvious about-face rendered its claims forfeited. Id. at

892.

Here, Delaware’s comments during EPA’s rulemaking are

far less definitive than were Ohio’s in South Coast. On the one

hand, some of Delaware’s comments suggested that Delaware

supported EPA’s proposal. See J.A. 56 (stating that Delaware

“would like to support EPA’s proposal” but only because the

alternative was to bump up areas in Delaware to a moderate

nonattainment classification). On the other hand, some of

Delaware’s other comments suggested opposition to EPA’s

proposed rule. See id. (describing circumstances when an

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attainment-date extension would make sense but concluding

“[t]his is not the case here”); J.A. 57 (criticizing EPA’s focus

on extending the Philadelphia Area’s attainment date and

urging EPA to dedicate its resources to improving air quality

more directly).

Fairly read, Delaware’s letter cannot reasonably support

an inference that Delaware “supported” the proposed rule

during the comment period. Delaware’s core comments

questioned the agency’s tactic of delaying attainment by

extending the deadline. At best, Delaware’s letter is ambiguous

or equivocal on whether it ultimately wanted EPA to grant an

extension. Delaware’s comments during the rulemaking

therefore do not exhibit the sort of clear contradiction present

in South Coast. Moreover, Delaware’s comments during the

rulemaking did not even address—let alone contradict—the

legal arguments the state now brings before our court.

Because Delaware’s current litigating position is not

“opposite” to that which it took before the agency, the state has

not forfeited its right to petition for judicial review. We thus

proceed to the merits of Delaware’s challenge.

III

A

Delaware argues that 42 U.S.C. § 7511(a)(5) precludes

EPA from considering an attainment-date extension for a

multistate area when not all states in the area have asked for it.

Delaware’s challenge to EPA’s statutory interpretation is

governed by Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). We initially determine

whether Congress “has directly spoken to the precise question

at issue,” in which case we “give effect to the unambiguously

9

expressed intent of Congress.” Id. at 842-43. If the statute is

“silent or ambiguous,” we then consider “whether the agency’s

answer is based on a permissible construction” of the statute.

Id. at 843.

To determine whether § 7511(a)(5) is unambiguous, we

“must first exhaust the ‘traditional tools of statutory

construction.’” Nat. Res. Def. Council, Inc. v. Browner, 57 F.3d

1122, 1125 (D.C. Cir. 1995) (quoting Chevron, 467 U.S. at 843

n.9). For example, we must look not only to “the particular

statutory language at issue,” but also “the language and design

of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486

U.S. 281, 291 (1988); see also County of Los Angeles v.

Shalala, 192 F.3d 1005, 1014 (D.C. Cir. 1999). The Supreme

Court has stressed time and time again that “[i]n expounding a

statute, we must not be guided by a single sentence or member

of a sentence, but look to the provisions of the whole law.” U.S.

Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S.

439, 455 (1993) (quoting United States v. Heirs of Boisdore,

49 U.S. (8 How.) 113, 122 (1849)). Therefore, when one

statutory provision informs the meaning of another at issue, we

must apply interpretive tools to both. See Halverson v. Slater,

129 F.3d 180, 184-85 (D.C. Cir. 1997).

B

Delaware contends that the unambiguous meaning of

§ 7511(a)(5) provides that EPA can grant an extension of an

attainment date for a multi-state area only when every state in

that area asks for it. Because Delaware never asked to extend

the Philadelphia Area’s deadline, so the argument goes, EPA

acted contrary to the statute. We disagree.

An attainment-date extension may be granted by EPA

“[u]pon application by any State.” 42 U.S.C. § 7511(a)(5)

10

(emphasis added). The parties dispute how to understand the

term “any State” in the context of multistate areas. Delaware

argues that “any State” means every state in a multistate area.

EPA maintains that “any State” means that any one of the states

in the multistate area can apply for an extension for the entire

area.

The word “any” has an “expansive meaning” that usually

indicates “one or some indiscriminately of whatever kind” as

long as there is “no reason to contravene [its] obvious

meaning.” New York v. EPA, 443 F.3d 880, 885 (D.C. Cir.

2006) (emphasis added) (first quoting United States v.

Gonzales, 520 U.S. 1, 5 (1997); then quoting Norfolk S. Rwy.

Co. v. Kirby, 543 U.S. 14, 31-32 (2004)); see also Freeman v.

Quicken Loans, Inc., 566 U.S. 624, 635 (2012); Fin. Planning

Ass’n v. SEC, 482 F.3d 481, 488 (D.C. Cir. 2007). This

expansive reach of “any” also applies when construing the Act

specifically. See New York, 443 F.3d at 885-86; see also Nat.

Res. Def. Council v. EPA, 755 F.3d 1010, 1019 (D.C. Cir.

2014); New Jersey v. EPA, 517 F.3d 574, 582 (D.C. Cir. 2008).

If “any” can refer to “one or some” members of a class, then it

should naturally permit EPA to grant an extension under

§ 7511(a)(5) when only “one or some” states in a multistate

area submit an application.

That said, depending on the context, “any” can mean

“every,” as Delaware argues. For example, very recently, the

Supreme Court held that in the context of a different statute,

“as in so many others, ‘any’ means ‘every.’” SAS Inst., Inc. v.

Iancu, 138 S. Ct. 1348, 1353 (2018). But again, when it comes

to determining a term’s unambiguous meaning, context is key.

See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

As the Court noted in SAS Institute, “any” meant “every” in

that statute largely because it was used to modify a “singular

noun in [an] affirmative context[].” 138 S. Ct. at 1354 (quoting

11

Oxford English Dictionary (3d ed., Mar. 2016),

www.oed.com/view/Entry/8973). Consider, for example, a

statute that read, “Any state that misses an attainment deadline

will be bumped up.” In that affirmative context, “any” clearly

means “every.” Here, however, we have a conditional

context—as EPA may grant an extension upon the application

of any state. When modifying a “singular count noun” (like

“State”) in this context, the word “any” generally refers to “an

unspecified member of a particular class.” Oxford English

Dictionary, supra. Therefore, consider another statute that

read, “If any state in a multistate region violates its SIP, the

entire region will be bumped up.” There, “any” would not

naturally mean “every.” It would instead refer to an

“unspecified member” of the multistate region, which could be

but a single state. Because § 7511(a)(5) similarly uses “any” in

a conditional context, it unambiguously indicates that not every

state need apply for an attainment-date extension in order for

EPA to grant one.

Nevertheless, Delaware argues that reading the term “any

State” alongside the rest of § 7511(a)(5) yields a different

unambiguous meaning. Section 7511(a)(5) specifies that after

“any State” has requested an extension, that extension can be

granted only if “the State has complied with all requirements

and commitments pertaining to the area in the applicable

[SIP].” 42 U.S.C. § 7511(a)(5)(A) (emphasis added). Delaware

interprets “the State” in § 7511(a)(5)(A) to refer back to “any

State” that applied for an extension under § 7511(a)(5).

Therefore, “[e]ither all states have to apply and all states have

to be in compliance with their SIPs, or only one state has to

apply and only that state has to be in compliance with its SIP.”

Del. Br. 21. Of those two options, Delaware advocates for the

former. For its part, EPA rejects both options and maintains

that while not every state in a nonattainment area must apply

for an extension under § 7511(a)(5), every state in that area

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must comply with its SIP for the area to qualify for the

extension. See 81 Fed. Reg. at 26,702.

Again, because context matters, Delaware’s argument has

some force. In fact, if Delaware were correct that every state in

a multistate nonattainment area had to be SIP-compliant for

EPA to grant the area an extension, we might agree that

§ 7511(a)(5) also required every state in that area to apply for

the extension in the first place. In that case, the surrounding

text would suggest Congress departed from the otherwise plain

meaning of “any” when enacting § 7511(a)(5).

But § 7511(a)(5)(A) does not require every state to comply

with its SIP. It is “well established” that “the” “particularizes

the subject which it precedes” and acts as a “word of

limitation.” Am. Bus Ass’n v. Slater, 231 F.3d 1, 4-5 (D.C. Cir.

2000) (quoting Brooks v. Zabka, 450 P.2d 653, 655 (Colo.

1969) (en banc)). In other words, “the” narrows the class of

states that must comply with their SIPs to those specific states

that already submitted applications for extension requests. The

scope of SIP-complying states is restricted to the scope of

extension-applying states. And as we discussed, the natural

meaning of “any State” in § 7511(a)(5) does not, read alone,

require every state in a multistate area to apply for an extension.

Section 7511(a)(5)(A)’s use of “the State” cannot possibly

refer to a broader class of states that must comply with their

SIPs than the class of applying states. If every state had to

comply with its SIP, “the” would serve no limiting role.

Therefore, the only states that are required to comply with their

SIPs are those that applied for an extension.

Additionally, we strive to construe statutes “so that effect

is given to all its provisions, so that no part will be inoperative

or superfluous, void or insignificant.” Corley v. United States,

556 U.S. 303, 314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88,

13

101 (2004)). If there is “only one statutory reading that gives

full effect” to the entirety of § 7511(a)(5), we will adopt it so

long as other tools of statutory interpretation do not overcome

that interpretation. Friends of Blackwater v. Salazar, 691 F.3d

428, 447 (D.C. Cir. 2012). Our interpretation of § 7511(a)(5)

gives full effect to both the determiner “any” and the definite

article “the”: Fewer than all states in a nonattainment area can

apply for an extension, and only those applying states must

demonstrate compliance with their own implementation plans.

This reading captures both the expansiveness of “any State”

and the particularity of “the State,” a harmonization neither

Delaware nor EPA achieve with their readings of § 7511(a)(5).

Delaware’s interpretation misreads both “any State” and “the

State,” and EPA’s interpretation correctly reads “any State”

while missing the mark on “the State.” Our interpretation gets

both right.

Neither Delaware nor EPA has demonstrated why this

literal interpretation should not control. To “avoid a literal

interpretation at Chevron step one,” a party “must show either

that, as a matter of historical fact, Congress did not mean what

it appears to have said, or that, as a matter of logic and statutory

structure, it almost surely could not have meant it.” Engine

Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1089 (D.C. Cir. 1996).

Delaware suggests that it is “improbable” Congress intended

for EPA to grant extensions in a multistate area without

requiring each state to comply with its individual SIP. Del. Br.

21. But improbability alone cannot “overcome th[e] plain

meaning presumption” applicable at Chevron’s first step. Va.

Dep’t of Med. Assistance Servs. v. HHS, 678 F.3d 918, 923

(D.C. Cir. 2012).

Therefore, we resolve this statutory question at Chevron

Step One. Read in light of its surrounding language, “any

State” unambiguously permits EPA to consider an application

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filed by fewer than all states in a multistate nonattainment area.

The plain meaning of “the State” refers to the state (or states)

that applied for the extension, and assumes that a single state

can validly apply for an extension. This use of “the State”

confirms that only the applying state or states must comply

with the relevant SIPs for EPA to consider granting an

extension to a multistate area. And if only one state can file an

extension request under § 7511(a)(5), then Delaware did not

need to file a request for EPA to consider granting an extension

to the Philadelphia Area.

Three states—Maryland, New Jersey, and Pennsylvania—

filed applications to extend the Philadelphia Area’s attainment

date. EPA thus had statutory authority under § 7511(a)(5) to

grant the states’ requests, even though Delaware was not

among them.

IV

Delaware raises two arbitrary-and-capricious challenges

to EPA’s decision extending the Philadelphia Area’s

attainment date. First, because New Jersey never claimed nor

demonstrated compliance with its SIP, EPA could not

reasonably conclude that the state had satisfied

§ 7511(a)(5)(A).* Second, EPA could not reasonably rely on

* Delaware also argues that EPA acted arbitrarily and

capriciously when concluding that Delaware complied with its own

SIP. Given our interpretation of § 7511(a)(5)(A), EPA was not

required to determine Delaware’s compliance with its SIP. See supra

Part III.B. Even so, we will assume that EPA nevertheless retained

discretion to consider Delaware’s compliance, given that the Act

only dictates that EPA “may” grant an extension when the statute’s

requirements are met. 42 U.S.C. § 7511(a)(5). To the extent that EPA

exercised discretion when considering Delaware’s compliance, that

action is still subject to arbitrary-and-capricious review. See, e.g.,

15

Maryland’s and Pennsylvania’s certifications of compliance

with their SIPs without also collecting and considering

evidence of their actual compliance.

A

The Act’s judicial-review provision does not address the

standard for reviewing decisions regarding attainment-date

extensions. See 42 U.S.C. § 7607(d)(1). Therefore, the

Administrative Procedure Act’s (APA’s) standards govern

Delaware’s challenge. See Carus Chem. Co. v. EPA, 395 F.3d

434, 441 (D.C. Cir. 2005) (explaining that when the relevant

statute does not specify an applicable standard of review, we

“proceed under the standard prescribed by the [APA]”). The

APA requires us to hold unlawful and set aside EPA’s decision

if it is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

Our review is “highly deferential” and “presumes agency

action to be valid.” Am. Wildlands v. Kempthorne, 530 F.3d

991, 997 (D.C. Cir. 2008) (quoting Ethyl Corp. v. EPA, 541

F.2d 1, 34 (D.C. Cir. 1976) (en banc)). We will uphold EPA’s

action “if the record shows EPA considered all relevant factors

and articulated a ‘rational connection between the facts found

and the choice made.’” Catawba County v. EPA, 571 F.3d 20,

41 (D.C. Cir. 2009) (per curiam) (quoting Burlington Truck

Lines v. United States, 371 U.S. 156, 168 (1962)).

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Auto. Ins.

Co., 463 U.S. 29, 48 (1983) (stating that an “agency must cogently

explain why it has exercised its discretion in a given manner” to

satisfy the Administrative Procedure Act’s arbitrary-and-capricious

standard (emphasis added)). We ultimately conclude that EPA’s

assessment of Delaware’s compliance was not arbitrary or capricious

for the same reasons supporting why its assessment of New Jersey’s

compliance was not arbitrary or capricious. See infra Part IV.B.

16

We give an “extreme degree of deference” to EPA when it

is “evaluating scientific data within its technical expertise,”

City of Waukesha v. EPA, 320 F.3d 228, 247 (D.C. Cir. 2003)

(internal quotation marks and citation omitted), and deference

“is especially appropriate when EPA ‘acts under unwieldy and

science-driven statutory schemes like the Clean Air Act,’”

Nat’l Biodiesel Bd. v. EPA, 843 F.3d 1010, 1018 (D.C. Cir.

2016) (quoting Bluewater Network v. EPA, 372 F.3d 404, 410

(D.C. Cir. 2004)).

B

Because New Jersey did not submit a certification of its

SIP compliance, EPA applied “its own knowledge and

expertise with regard to whether the state is meeting [its SIP]

obligations, including a review of whether [EPA] or outside

parties has identified state noncompliance with the

obligations.” 81 Fed. Reg. at 26,702. EPA reviewed the ozone

SIP for New Jersey and determined that there were no pending

enforcement actions alleging that the state had failed to

implement its EPA-approved SIP. See id. at 26,702-03. This

approach for determining compliance evinces a “rational

connection between the facts found and the choice made,”

Burlington Truck Lines, 371 U.S. at 168, because it is rational

for EPA to conclude that an absence of enforcement actions

against a state is a reasonable proxy for SIP compliance. This

is especially so given that no commenter during the rulemaking

had “presented any evidence or made any demonstration”

suggesting that New Jersey was out of compliance with its SIP.

81 Fed. Reg. at 26,703. And Delaware offers no serious

argument now to impeach EPA’s approach.

Instead, Delaware argues that the attainment-date

extension was arbitrary and capricious because EPA had

17

recognized in another proposed rule that New Jersey’s SIP was

itself “substantially inadequate.” State Implementation Plans:

Response to Petition for Rulemaking, 80 Fed. Reg. 33,840,

33,846 (June 12, 2015). In June 2015, EPA promulgated a final

rule requiring thirty-six states, including New Jersey, to cure

certain inadequacies in their respective SIPs. Id. at 33,847.

Delaware believes that once EPA identified “substantial

deficiencies” in New Jersey’s SIP, EPA could not reasonably

grant an extension for the Philadelphia Area under

§ 7511(a)(5)(A).

But the text of § 7511(a)(5)(A) requires only that an

applying state in a nonattainment area comply with the

requirements in its “applicable [SIP].” As our sister circuit

concluded when faced with a nearly identical provision of the

Act, “The statute requires the state to have ‘complied with all

requirements and commitments pertaining to that area in the

implementation plan,’ not the [Act].” Vigil v. Leavitt, 381 F.3d

826, 846 (9th Cir. 2004) (emphasis in Vigil) (quoting 42 U.S.C.

§ 7513(e)). Since at least 1994, EPA has similarly interpreted

§ 7511(a)(5)(A) to require compliance with “the EPA-

approved SIP.” As such, we conclude that EPA did not act

arbitrarily or capriciously when requiring New Jersey to

comply only with its EPA-approved SIP.

C

Delaware also argues that Maryland and Pennsylvania

could not submit certifications of compliance with their SIPs

“without evidence to substantiate [the certifications].” Del. Br.

29. EPA maintains that under § 7511(a)(5)(A) the agency may

rely on the “certified statements of its state counterparts,” 81

Fed. Reg. at 26,704, unless “evidence is properly before the

agency during the rulemaking process that warrants a different

finding,” EPA Br. 29; see also 81 Fed. Reg. at 26,704. Absent

18

any contrary evidence in the record, EPA accepted Maryland’s

and Pennsylvania’s certifications. See 81 Fed. Reg. at 26,704.

Because § 7511(a)(5)(A) is “silent” as to how a state may

demonstrate compliance with its SIP, Chevron, 467 U.S. at

843, EPA’s decision regarding state certification is permissible

if reasonable in this context, Int’l Bhd. of Teamsters v. U.S.

Dep’t of Transp., 724 F.3d 206, 215 (D.C. Cir. 2013). EPA’s

presumptive reliance on state certification is reasonable

because it is an efficient allocation of the agency’s limited

resources and personnel, see Massachusetts v. EPA, 549 U.S.

497, 527 (2007), and because EPA retains discretion to look

beyond the certification if other evidence gives it reason to

doubt the certification’s credibility.

Moreover, the Act is “an exercise in cooperative

federalism.” Dominion Transmission, Inc. v. Summers, 723

F.3d 238, 240 (D.C. Cir. 2013). While the Act authorizes EPA

to establish NAAQS, it delegates to states the responsibility for

implementing those standards. Michigan v. EPA, 268 F.3d

1075, 1078 (D.C. Cir. 2001). Delaware’s attempt to prevent

EPA from presumptively relying on states’ certifications of

compliance with their own SIPs would undermine the agency’s

efforts to cooperate with the states. If anything, the federalist

design of the Act supports the reasonableness of EPA’s

practice. See 81 Fed. Reg. at 26,704 (explaining that EPA’s

reliance on the states’ certifications is reasonable in light of

“the state and federal partnership in implementing the [Act]”).

Finally, Delaware argues that Maryland and Pennsylvania

were not in compliance with their SIPs because those SIPs

lacked certain provisions required by 42 U.S.C.

§ 7511c(b)(1)(B). This argument was forfeited because no

commenter raised it before the agency during rulemaking. See

Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 562 (D.C. Cir.

19

2002). In any event, Delaware’s argument also relies on an

affidavit from Ronald Amirikian, an employee of the Delaware

Department of Natural Resources & Environmental Control’s

Air Quality Division, produced months after EPA promulgated

its final rule extending the Philadelphia Area’s attainment date.

However, it is “black-letter administrative law” that a

reviewing court cannot consider information that was

unavailable to the agency when it made its decision. Hill

Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013)

(quoting Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d

788, 792 (D.C. Cir. 1984)). Because EPA could not have

considered the Amirikian affidavit during the rulemaking

process, we will not consider it now. And even if Maryland’s

and Pennsylvania’s SIPs lacked the provisions required by

§ 7511c(b)(1)(B), that fact would only demonstrate that the

states’ SIPs were inadequate, which does not matter for

purposes of § 7511(a)(5)(A). See supra Part IV.B.

V

For the foregoing reasons, the petition for review is

Denied.