United States Court of Appeals, District of Columbia Circuit
September 14, 2017
Petitions for Review of a Final Action of the Environmental
E. Lorenz Angarita argued the cause for petitioner South
Coast Air Quality Management District. With her on the briefs
were Kurt R. Wiese and Barbara Baird.
L. Johnson argued the cause for Environmental Petitioners.
With him on the briefs was David S. Baron.
J. Dowd and Andrew B. Kolesar III were on the brief for
amicus curiae Ventura County Air Pollution Control District
in support of petitioner South Coast Air Quality Management
Heather E. Gange, Trial Attorney, U.S. Department of Justice,
argued the cause for respondents. With her on the brief was
John C. Cruden, Assistant Attorney General at the time the
brief was filed.
L. Johnson argued the cause for Environmental
Movant-Intervenors. With him on the brief was David S. Baron.
E. Lorenz Angarita, Kurt R. Wiese, and Barbara Baird were on
the brief for amicus curiae South Coast Air Quality
Management District in support of respondent's opposition
to Sierra Club's argument regarding reasonably available
control technology in Case No. 15-1123.
Sue Ritts was on the brief for intervenor for respondent
National Environmental Development Association's Clean
Air Project in support of U.S. Environmental Protection
Before: Garland, Chief Judge, Rogers, Circuit Judge, and
Sentelle, Senior Circuit Judge.
SENTELLE, SENIOR CIRCUIT JUDGE.
consolidated proceeding, we consider petitions for review of
an Environmental Protection Agency ("EPA") final
rule entitled "Implementation of the 2008 National
Ambient Air Quality Standards for Ozone: State Implementation
Plan Review Requirements, " 80 Fed. Reg. 12, 264 (Mar.
6, 2015). In Case No. 15-1115, petitioner South Coast Air
Quality Management District ("South Coast")
contends that the EPA incorrectly concluded that precedent of
this Court requires emissions reductions that demonstrate
reasonable further progress all come from within the
nonattainment area. In Case No. 15-1123, petitioners Sierra
Club, Conservation Law Foundation, Downwinders at Risk, and
Physicians for Social Responsibility (Los Angeles)
("Environmental Petitioners") contend that in
enacting the Final Rule, the EPA acted arbitrarily and
capriciously in its revocation of 1997 National Ambient Air
Quality Standards and relaxation of previously applicable
requirements under the Clean Air Act.
reasons stated below, we deny South Coast's petition for
review, and grant in part and deny in part that of the
The Clean Air Act Framework
Clean Air Act ("CAA" or "Act") directs
the EPA to set National Ambient Air Quality Standards
("NAAQS") for air pollutants "allowing an
adequate margin of safety . . . requisite to protect the
public health." 42 U.S.C. § 7409(b)(1). The CAA
also requires the EPA to establish air quality control
regions and designate them as "attainment" for
"any area . . . that meets" the NAAQS,
"nonattainment" for "any area that does not
meet" the NAAQS, and "unclassifiable" for
"any area that cannot be classified on the basis of
available information." § 7407(d)(1)(A).
must classify each area "designated nonattainment for
ozone" as "marginal, " "moderate, "
"serious, " "severe, " or
"extreme" based on the degree to which the ozone
level in the area exceeds the NAAQS. § 7511. "An
area that exceeds the NAAQS by a greater margin is given more
time to meet the standard but is subjected to progressively
more stringent emissions controls for ozone precursors,
namely, volatile organic compounds (VOCs) and oxides of
nitrogen (NOx)." Natural Res. Def. Council v.
EPA (NRDC 2009), 571 F.3d 1245, 1250 (D.C. Cir.
places on the states "the primary responsibility for
assuring air quality" by submitting state implementation
plans ("SIPs") that specify how they will achieve
and maintain compliance with the NAAQS. 42 U.S.C. §
7407(a). States must formally adopt SIPs through state notice
and comment rulemaking and then submit the SIPs to the EPA
for approval. § 7410(a). For those areas designated as
"nonattainment, " SIPs must show how the areas will
achieve and maintain the relevant NAAQS. Id.
nonattainment area may be redesignated to attainment if the
EPA (1) has determined that the area has attained the
applicable NAAQS; (2) has fully approved the applicable SIP
under § 7410(k); (3) has determined that the attainment
is due to permanent and enforceable emissions reductions; (4)
has fully approved a § 7505a "maintenance plan,
" which demonstrates that the area will maintain the
NAAQS for at least 10 years after the redesignation,
see § 7505a(a); and (5) has determined that the
state containing the area seeking redesignation has met all
applicable SIP requirements. § 7407(d)(3)(E). Areas
redesignated as attainment are referred to as
SIPs for Nonattainment Areas
relevant to this case, the Clean Air Act requires SIPs for
nonattainment areas to include the following provisions:
Reasonable Further Progress
for nonattainment areas "shall require reasonable
further progress." § 7502(c)(2). "Reasonable
further progress" is defined as "such annual
incremental reductions in emissions of the relevant air
pollutants as are required by this part or may reasonably be
required by [the EPA] for the purpose of ensuring attainment
of the applicable [NAAQS] by the applicable date."
§ 7501(1). The Clean Air Act requires an area in a
moderate or greater degree of nonattainment to reduce
emissions of VOCs by fifteen percent in the first six years
after November 15, 1990. § 7511a(b)(1)(A). For areas in
a serious or greater degree of nonattainment, subsequent
reductions in VOC emissions must average three percent per
year over each consecutive three-year period until the area
reaches attainment. § 7511a(c)(2)(B).
Reasonably Available Control Technology
for ozone nonattainment areas must also "provide for the
implementation of all reasonably available control measures
as expeditiously as practicable (including such reductions in
emissions from existing sources in the area as may be
obtained through the adoption, at a minimum, of reasonably
available control technology)." § 7502(c)(1). For
nonattainment areas classified as moderate and above, SIPs
must "require the implementation of reasonably available
control technology" with respect to all major sources of
VOCs in the area and any sources that emit VOCs in the area
that are covered by a control technique guideline. §
7511a(b)(2). The reasonably available control technology
requirement also applies to major sources of NOx. §
New Source Review
governing nonattainment areas must require permits for the
construction of new or modified sources of air pollution.
§§ 7502(c)(5), 7503, 7410(a)(2)(C). The goal of New
Source Review is to require permits to ensure that new or
modified sources will not exacerbate the pollution problem in
the nonattainment area. § 7503(a)(1)(A), (a)(2), (c).
New Source permits for major sources of VOCs require the
proposed source (1)to comply with the lowest achievable
emissions rate and (2)to obtain pollution offsets
representing equal or greater reductions of a pollutant at
issue in the area. Id.
mandates that nonattainment and maintenance areas are subject
to "conformity requirements, " so that "[n]o
department, agency, or instrumentality of the Federal
Government shall engage in, support in any way or provide
financial assistance for, license or permit, or approve, any
activity which does not conform to an implementation
plan." § 7506(c)(1), (5). Federally funded projects
must "conform" to SIPs, meaning that the projects
will not "cause or contribute to any new violation,
" "increase the frequency or severity of any
existing violation, " or "delay timely attainment
of any standard or any required interim emission reductions
or other milestones in any area." § 7506(c)(1)(B).
These areas are also subject to the more specific
transportation conformity requirements, whereby federal
agencies may not "approve, accept or fund any
transportation plan, program or project unless" it
conforms to an applicable SIP. § 7506(c)(2). With
respect to transportation conformity requirements, the EPA is
responsible for promulgating, and periodically updating,
"criteria and procedures for demonstrating and assuring
conformity in the case of transportation plans, programs, and
projects." § 7506(c)(4)(B).
must include contingency measures that take effect
automatically "if the area fails to make reasonable
further progress, or to attain the [NAAQS] by the attainment
date." §§ 7502(c)(9), 7511a(c)(9).