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South Coast Air Quality Management District v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

February 16, 2018

South Coast Air Quality Management District, Petitioner
Environmental Protection Agency, et al., Respondents National Environmental Development Association's Clean Air Project, et al., Intervenors

          Argued September 14, 2017

         On Petitions for Review of a Final Action of the Environmental Protection Agency

          Megan 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.

          Seth L. Johnson argued the cause for Environmental Petitioners. With him on the briefs was David S. Baron.

          Kelvin 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 District.

          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.

          Seth L. Johnson argued the cause for Environmental Movant-Intervenors. With him on the brief was David S. Baron.

          Megan 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.

          Leslie 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 Agency.

          Before: Garland, Chief Judge, Rogers, Circuit Judge, and Sentelle, Senior Circuit Judge.



         In this 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.

         For the reasons stated below, we deny South Coast's petition for review, and grant in part and deny in part that of the Environmental Petitioners.

         I. BACKGROUND

         A. The Clean Air Act Framework

         The 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).

         The EPA 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. 2009).

         The Act 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.

         A 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 "maintenance areas."

         B. SIPs for Nonattainment Areas

         As is relevant to this case, the Clean Air Act requires SIPs for nonattainment areas to include the following provisions:

         1. Reasonable Further Progress

         SIPs 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).

         2. Reasonably Available Control Technology

         SIPs 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. § 7511a(f).

         3. New Source Review

         SIPs 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.

         4. Conformity

         The Act 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).

         5. Contingency Measures

         SIPs 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).

         C. Anti-Backsliding ...

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