Argued September 15, 2014
For SIERRA CLUB, Petitioner (12-2853, 12-3142, 12-3143): David C. Bender, Attorney, MCGILLIVRAY, WESTERBERG & BENDER LLC, Madison, WI; Robert Ukeiley, Attorney, LAW OFFICE OF ROBERT UKEILEY, Boulder, CO; Sanjay Narayan, Attorney, SIERRA CLUB, San Francisco, CA.
For ENVIRONMENTAL PROTECTION AGENCY, Respondent (12-2853): Paul Cirino, Attorney, DEPARTMENT OF JUSTICE, Enviromental Enforcement Section, Washington, DC; Matthew R. Oakes, Attorney, DEPARTMENT OF JUSTICE, Environmental Defense Section, Washington, DC.
For GINA MCCARTHY, Administrator, Respondent (12-2853): Matthew R. Oakes, Attorney, DEPARTMENT OF JUSTICE, Environmental Defense Section, Washington, DC.
For ENVIRONMENTAL PROTECTION AGENCY, GINA MCCARTHY, Administrator, Respondents (12-3142): Paul Cirino, Attorney, DEPARTMENT OF JUSTICE, Enviromental Enforcement Section, Washington, DC.
For ENVIRONMENTAL PROTECTION AGENCY, GINA MCCARTHY, Administrator, Respondents (12-3143): Elizabeth Boucher Dawson, Attorney, DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Washington, DC.
Before FLAUM, KANNE, and SYKES, Circuit Judges.
Flaum, Circuit Judge.
Sierra Club challenges the Environmental Protection Agency's decisions to redesignate three geographic areas -- Milwaukee-Racine, Greater Chicago, and the Illinois portion of the St. Louis area--as having attained the 1997 National Ambient Air Quality Standards for ozone. The Clean Air Act mandates that before redesignating an area, EPA must confirm not just that ozone in an area dropped below a certain level, but also that the improvement in air quality resulted from " permanent and enforceable reductions in emissions." EPA interprets that edict to require a finding that the requisite ozone drops are " reasonably attributable" to permanent and enforceable reductions. Sierra Club does not contest EPA's reading of the statute, but argues that the Agency acted arbitrarily and capriciously in making this causation finding in each of the redesignations at issue. We disagree
and therefore deny Sierra Club's petition for review.
A. Statutory and Regulatory Background
The Clean Air Act (" CAA" ), 42 U.S.C. § 7401 et seq., establishes a comprehensive program for controlling and improving the nation's air quality through both state and federal regulation. Title I of the CAA charges the Environmental Protection Agency Administrator with identifying air pollutants that endanger public health and welfare and with formulating National Ambient Air Quality Standards (" NAAQS" ) that specify the maximum permissible concentration of those pollutants in the ambient air. Id. § § 7408-09. Pursuant to the CAA, EPA designates areas of the country as either " attainment," " nonattainment," or " unclassifiable" for specific NAAQS, based on whether that area has attained the standard and/or contributes to a nearby area's nonattainment. Id. § 7407(d).
Primary responsibility for ensuring that ambient air quality satisfies the NAAQS falls to the states. Id. § 7407(a). Each state must draft a state implementation plan (" SIP" ) for each pollutant, the review of which is conducted by EPA according to the process outlined in section 110(k) of the CAA. Id. § 7410(a), (k). Although certain SIP requirements apply to an area regardless of its designation, nonattainment areas are subject to more regulations as compared to attainment areas. See id. § § 7501-15.
Relevant to this case, ozone is among the pollutants that EPA has identified and, consequently, for which EPA has promulgated NAAQS. See 40 C.F.R. pt. 50. Ground-level ozone " can cause lung dysfunction, coughing, wheezing, shortness of breath, nausea, respiratory infection and, in some cases, permanent scarring of the lung tissue." S. Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 887, 374 U.S.App.D.C. 121 (D.C. Cir. 2006). Ozone is " formed from [the] chemical reactions between [nitrogen oxides]" and other " volatile organic compounds in the presence of sunlight." West Virginia v. EPA, 362 F.3d 861, 865, 360 U.S.App.D.C. 419 (D.C. Cir. 2004). Ozone's precursors (nitrogen oxides (" NOx" ) and volatile organic compounds (" VOCs" )) are produced by a variety of sources, including cars, power plants, and manufacturing facilities. 70 Fed. Reg. 30,396, 30,398 (May 26, 2005). Ozone pollution levels, however, are not dependent solely on the quantity of precursor pollutants in an area--weather (especially sunlight and wind), for example, also drives the equation. 75 Fed. Reg. 24,844, 24,846 (May 6, 2010). And once ozone is formed, the effect of adding or subtracting NOx to/from the air is unknown--ozone levels may increase or decrease. New York v. EPA, 133 F.3d 987, 989 (7th Cir. 1998). In other words, " predicting the total effect on ozone ... of a reduction in [precursor] emissions, and the geographical incidence of that effect, is a tricky business." Id.
At issue in this case are the 1997 NAAQS for ozone. An area attains the 1997 ozone NAAQS when the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 parts per million (" ppm" ) at all monitoring sites in
the area. 40 C.F.R. pt. 50, App. I. But if EPA deems an area " nonattainment," the CAA provides a path to reclassification. 42 U.S.C. § 7407(d)(3)(E). To be redesignated, the governor of a state must submit a request for designation, which EPA must approve or deny within 18 months on the basis of five criteria. Id. § 7407(d)(3)(D), (E). Specifically, EPA will approve a redesignation to attainment only if:
(1) EPA determines that the area has attained the applicable NAAQS,
(2) EPA fully approves the applicable SIP under 42 U.S.C. § 7410(k),
(3) EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from the applicable implementation plan and applicable federal air pollutant control regulations and other permanent and enforceable reductions,
(4) EPA fully approves a maintenance plan under 42 U.S.C. § 7505(a), which has been adopted by the state and demonstrates that the area will maintain the NAAQS for at least 10 years after redesignation, and
(5) EPA determines that the State containing the area seeking redesignation has met all applicable SIP requirements for that area under § 7410 and part D of subchapter 1, § § 7501-15.
42 U.S.C. § 7407(d)(3)(E).
On April 30, 2004, EPA designated the Milwaukee-Racine area, the St. Louis area, and the Greater Chicago area as nonattainment for the 1997 8-hour ozone standard and classified the areas " moderate" nonattainment under CAA Subpart 2 of Part D, 42 U.S.C. § § 7511-11f. 69 Fed. Reg. 23,858, 23,898, 23,915, 23,947 (Apr. 30, 2004). Roughly eight years later--upon review of applications submitted by Illinois and Wisconsin--EPA redesignated these three areas from nonattainment to attainment. Sierra Club challenges these actions as violative of the CAA's causation requirement (the third requisite listed above). In Sierra Club's ...