Appeal from the United States District Court for the Eastern District of Wisconsin.
No. 97 C 915 John W. Reynolds, Judge.
Before Posner, Chief Judge, and Rovner and Diane P. Wood, Circuit Judges.
Petition for Review of a Final Rule of the Environmental Protection Agency.
Before us is a petition to review a final rule issued by the Environmental Protection Agency granting the four states that abut Lake Michigan (Illinois, Indiana, Michigan, and Wisconsin) an exemption from limitations that the Clean Air Act, 42 U.S.C. sec.sec. 7401 et seq., requires states to impose on the emission of nitrogen oxides. Approval of a Section 182(f) Exemption, 61 Fed. Reg. 2428 (1996), codified in 40 C.F.R. sec.sec. 52.726(k), 52.778(i), 52.1174(l), 52.2585(i). The petition for review was filed by New York (joined by Pennsylvania and Vermont), which being downwind from the Lake Michigan states wants the level of nitrogen oxide emissions originating in those states to be as low as possible.
When carbon compounds known as "volatile organic compounds" (VOCs) mix with nitrogen oxides (NOX) in the presence of sunlight, the result is ozone, a major factor in urban smog. (Carbon monoxide also contributes to the formation of ozone, but it is not a VOC and is not at issue in this case.) Yet once ozone is formed, a further addition of nitrogen oxides may react with the ozone in a way that will cause the ozone level to fall in the immediate area; at the same time, the additional nitrogen oxides, drifting downwind, may raise the ozone level elsewhere. And, conversely, reducing the quantity of nitrogen oxides in the air may raise rather than lower the ozone level in the area in which the mixing of the nitrogen oxides and the ozone takes place, while at the same time reducing the ozone level downwind. (A further complication, but not one at issue in this litigation, is that reducing the ozone level in the atmosphere may increase the incidence of skin cancer.) Thus, predicting the total effect on ozone (and therefore on smog) of a reduction in nitrogen oxide emissions, and the geographical incidence of that effect, is a tricky business; and the uncertainties of prediction have generated the interstate conflict that gives rise to the petition for review. New York is convinced that reducing the amount of nitrogen oxide emissions from sources in the Lake Michigan states will reduce the ozone level in New York. The Lake Michigan states believe that such a reduction might raise the ozone level in midwestern cities. And of course they are also concerned because the benefits of a reduction (if any) in the ozone level in the Midwest are unlikely to be as great as the costs of the pollution-control requirements that the EPA has waived in the rule under attack, for most of the benefits from reducing the emission of nitrogen oxides in the emitting states will be received by the downwind states.
We encounter at the threshold a jurisdictional issue--or at least a jurisdictional-seeming issue. It is whether the petition for review was filed in the right circuit. The Clean Air Act provides that petitions to review actions by the EPA that are "nationally applicable" shall be filed in the D.C. Circuit and actions that are "locally or regionally applicable" in the regional circuits. 42 U.S.C. sec. 7607(b)(1). The exemption of the Lake Michigan states is formally regional, but has effects outside the region; that is why the petitioner and the intervening petitioners are eastern rather than midwestern states. And the exemption crosses circuit lines, applying as it does to all the states of the Seventh Circuit plus Michigan, which is in the Sixth Circuit.
None of the parties has raised a question about the propriety of the petition's being filed in this court. So if section 7607(b)(1) is merely a venue provision, as it was held to be in Texas Municipal Power Agency v. EPA, 89 F.3d 858, 865-67 (D.C. Cir. 1996) (per curiam), any objection to our entertaining the petition is waivable and has been waived. Panhandle Eastern Pipe Line Co. v. FPC, 324 U.S. 635, 638-39 (1945); Fed. R. Civ. P. 12(h)(1); 28 U.S.C. sec.sec. 1406, 2343. Provisions specifying where a suit shall be filed, as distinct from specifying what kind of court or other tribunal it shall be filed in, are generally considered to be specifying venue rather than jurisdiction. It would be usurpative for a federal court to assert jurisdiction over a case that the Constitution or statute had consigned to a state court, or even for a federal district court to assert jurisdiction over a case that should have been brought in a federal court of appeals, as in Missouri v. United States, 109 F.3d 440 (8th Cir. 1997). So it must refuse to do so even if no party objects; that is the practical meaning of a jurisdictional requirement. Troelstrup v. Index Futures Group, Inc., No. 97-2288, 1997 WL 754603 at *2 (7th Cir. Dec. 4, 1997). But it is not usurpative for one federal court of appeals to assert jurisdiction (because of absence of objection) over a case that it would have been authorized to adjudicate if only the effects of the order sought to be reviewed had been felt in one part of the country rather than another.
Even if this is wrong and section 7607(b)(1) does create a jurisdictional bar to a regional circuit's entertaining a petition to review an order of the EPA that has national applicability, the order challenged here is not of that character. The exemption that the petition for review challenges is limited to a cluster of states; it thus is regional in a literal sense. See Madison Gas & Electric Co. v. EPA, 4 F.3d 529 (7th Cir. 1993). Although the effects of the exemption may be felt in other regions, that would be true of any major action by the EPA under the Clean Air Act, since air currents do not respect state boundaries. No doubt it would be possible to distinguish between major and minor effects. But such a vague criterion would be undesirable in a jurisdictional statute. Jurisdictional criteria should be precise, so that litigation does not become entangled in issues that are unrelated to the merits. Determining whether an action by the EPA is regional or local on the one hand or national on the other should depend on the location of the persons or enterprises that the action regulates rather than on where the effects of the action are felt.
This leaves the question which regional circuit the petition for review should have been filed in, the Sixth or the Seventh. This surely is a question of venue, and hence waived. Besides, there is no reason to think the Sixth Circuit the more appropriate venue, since three of the four states subject to the challenged exemption are in the Seventh Circuit.
And so we come at last to the merits. Under the Clean Air Act, the EPA fixes ceilings (national ambient air quality standards) on the permissible levels of specific airborne pollutants, including ozone (as well as on some nitrogen oxides directly, but those ceilings are not at issue in this case). The states then submit plans for achieving the target ceilings (state implementation plans) for approval by the EPA. Section 110(a)(2)(D) of the Act, 42 U.S.C. sec. 7410(a)(2)(D), requires a state's implementation plan to prohibit emissions that will "contribute significantly" to another state's failure to attain or maintain an air quality standard. This section is not specifically addressed to ozone but it bears importantly on the control of interstate air pollution of whatever type. As a matter of fact, shortly after the oral argument in this court, the EPA issued a notice of proposed rulemaking that proposes to require states, including the Lake Michigan states, to make revisions to their state implementation plans that will reduce interstate ozone pollution. Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone, 62 Fed. Reg. 60,318 (1997).
In 1990, the Clean Air Act was amended to deal specifically with ozone. Section 185B of the amended Act, 42 U.S.C. sec. 7511f, directs the EPA (in conjunction with other bodies) to conduct a study of, among other things, the role of nitrogen oxides in the formation of ozone, and to report the results of the study to Congress; the report was submitted in 1993. Section 182(f)(1), 42 U.S.C. sec. 7511a(f)(1), imposes on the states a duty to control emissions of nitrogen oxides, but goes on (in section 182(f)(1)(A)) to lift the duty if "the [EPA] determines (when the [EPA] approves a [state implementation] plan or plan revision) that additional reductions of oxides of nitrogen would not contribute to attainment of the national ambient air quality standard for ozone in the area," "area" being defined in a way that, so far as the present case is concerned, includes the Lake Michigan states and excludes the downwind states. 42 U.S.C. sec. 7511a(f)(1)(A). And section 182(f)(3) provides that "at any time after the final report under section [185B] is submitted to Congress, a person may ...