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Sierra Club v. Environmental Protection Agency

February 03, 2004; as amended April 16, 2004

SIERRA CLUB, PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY AND MICHAEL O. LEAVITT, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS
STATE OF MARYLAND, ET AL., INTERVENORS



On Petitions for Review of Final Actions of the Environmental Protection Agency

Before: Sentelle, Henderson, and Garland, Circuit Judges.

The opinion of the court was delivered by: Garland, Circuit Judge

Argued November 20, 2003

In these consolidated cases, Sierra Club challenges two final actions of the Environmental Protection Agency (EPA) regarding ozone control plans for the Washington, D.C. area. Those plans were designed to bring the area into compliance with ozone standards prescribed by the Clean Air Act and EPA regulations. Sierra Club contends that EPA violated the Act by giving conditional approval to the plans notwithstanding that they lacked required statutory elements. Sierra Club also challenges the substance of two elements that were included in the plans, as well as EPA's extension of the deadlines by which revised plans must be submitted for final approval.

We agree with Sierra Club's principal contention that EPA was not authorized to grant conditional approval to plans that did nothing more than promise to do tomorrow what the Act requires today. We therefore vacate the conditional approval and remand the matter to EPA for further action consistent with this opinion. In other respects we deny the petitions for review.

I.

The Clean Air Act (CAA), 42 U.S.C. § 7401 et seq., directs EPA to establish National Ambient Air Quality Standards (NAAQS) that set maximum permissible concentration levels for air pollutants that endanger the public health and welfare. 42 U.S.C. §§ 7408, 7409. Pursuant to that direction, the agency has adopted NAAQS for ozone. 40 C.F.R. § 50.9.*fn1 Under the Act, EPA designates areas of the country as "attainment" or "nonattainment" (or as "unclassifiable") based on whether they comply with the ozone NAAQS. 42 U.S.C. § 7407(d). Nonattainment areas are further classified as "marginal," "moderate," "serious," "severe," or "extreme," depending upon the severity and duration of their noncompliance. Id. § 7511(a). The Act establishes air quality planning and control requirements that increase in stringency as the classification increases in severity. See id. § 7511a. It also establishes deadlines for attainment of the NAAQS depending upon an area's nonattainment classification. Id. §§ 7410, 7502, 7511(a). If an area fails to attain the NAAQS by the applicable deadline, EPA must reclassify it to a higher classification. Id. § 7511(b)(2). Generally, reclassification grants the area a later attainment deadline, but requires it to comply with the more stringent pollution control measures applicable to the higher classification. Id. § 7511(a)(1), (b)(2); id. § 7511a.
The Act also prescribes the process by which areas must arrive at and maintain compliance with the NAAQS. Each state must adopt and submit for approval to EPA a state implementation plan (SIP) that provides for "implementation, maintenance, and enforcement" of applicable NAAQS in each air quality region (or portion thereof) within the state. Id. § 7410(a)(1). In addition to the general SIP requirements, states in ozone nonattainment areas must submit SIPs meeting additional requirements that depend upon the severity of the ozone problem. Id. §§ 7502, 7511a. Each SIP must contain an "attainment demonstration" that shows that the area will achieve the NAAQS by the area's statutory attainment deadline. Id. § 7511a(c)(2)(A); 40 C.F.R. § 51.112. The attainment demonstration is based on the state's control strategy for ozone-precursor emissions, which must "include enforceable emissions limitations, and such other control measures ... as may be necessary or appropriate to provide for attainment of such standard in such area by the applicable attainment date." 42 U.S.C. § 7502(c)(6).

Particularly relevant for this case, SIPs from states in nonattainment areas must also: (1) provide for "the implementation of all reasonably available control measures [RACM] as expeditiously as practicable," id. § 7502(c)(1); and, for serious and severe areas, (2) contain a rate of progress (ROP) plan that demonstrates an average reduction of baseline emissions of 3% per year for each consecutive three-year period commencing in 1996 until the attainment deadline for the classification area, id. § 7511a(c)(2)(B), (d); and (3) "provide for the implementation of specific [contingency] measures to be undertaken if the area fails" to meet any ROP milestone or to attain the NAAQS by the statutory deadline, id. §§ 7502(c)(9), 7511a(c)(9) & (d).

The Washington, D.C. Metropolitan Area ("D.C. area") is made up of the District of Columbia and several Maryland and Virginia counties. Pursuant to the Clean Air Act, EPA classified the D.C. area as a "serious" nonattainment area for ozone in 1991. Designation of Areas for Air Quality Planning Purposes, Final Rule, 56 Fed. Reg. 56,694, 56,738, 56,772, 56,841 (Nov. 6, 1991). The statutory deadline for ozone attainment by serious areas was November 15, 1999, and revised SIPs including the attainment demonstration and ROP plans were due by November 15, 1994. 42 U.S.C. §§ 7511(a)(1), 7511a(c)(2).

Maryland, Virginia, and the District of Columbia ("the States") did not submit their attainment demonstration and other plan provisions for the D.C. area until 1997-1998; they amended and supplemented those submissions during 1998-2000. See Approval and Promulgation of Air Quality Implementation Plans, Final Rule, 66 Fed. Reg. 586 (Jan. 3, 2001). Those SIPs lacked the three statutory elements noted above: (1) the RACM analysis; (2) ROP plans for post-1999 emissions reductions; and (3) contingency measures. Id. at 603, 608, 615. Moreover, the SIPs did not demonstrate that the area would reach attainment by the statutory deadline of November 15, 1999. Id. at 630-31. Instead, the States asked EPA to extend the attainment deadline by six years to November 15, 2005, without reclassifying the area as "severe" as the Act would otherwise have required. Id. at 586. On January 3, 2001, EPA fully approved the SIPs and granted the States' requests to extend the attainment deadline without reclassifying the D.C. area. Id. at 603, 608, 605, 630-31.

Sierra Club petitioned this court for review, contending (inter alia) that EPA could not approve the SIPs without the missing statutory elements, and that it had no authority to extend the statutory attainment deadline without reclassifying the area as severe. We agreed, vacated EPA's approval of the SIPs, and remanded the matter to the agency. Sierra Club v. EPA, 294 F.3d 155, 160-65 (D.C. Cir. 2002) [ Sierra Club I ]. On November 13, 2002, Sierra Club filed a new action in the U.S. District Court for the District of Columbia, seeking an injunction to compel EPA to reclassify the D.C. area as severe and to take final action either approving or disapproving the previously submitted SIPs. The district court granted those requests and ordered EPA: (1) by January 27, 2003, to determine whether the D.C. area had attained the NAAQS for ozone by the applicable attainment date of November 15, 1999, and, if not, to reclassify the area; and (2) by April 17, 2003, to approve or disapprove the SIP submittals that had been remanded in Sierra Club I. Sierra Club v. Whitman, No. 02-2235 (D.D.C. Dec. 18, 2002).

EPA responded to the district court's order with the two actions that are at issue in this case. On January 24, 2003, in a decision known as the "bump-up" action, EPA determined that the D.C. area had not attained the NAAQS for serious ozone nonattainment areas by the statutory deadline and therefore reclassified the area as severe. Determination of Nonattainment as of November 15, 1999 and Reclassification of the Metropolitan Washington, DC Ozone Nonattainment Area, Final Rule, 68 Fed. Reg. 3410 (Jan. 24, 2003) [hereinafter Reclassification]. A statutory consequence of the reclassification was the extension of the ozone attainment deadline to "as expeditiously as possible but not later than" November 15, 2005. 42 U.S.C. § 7511(a)(1). At the same time, EPA extended until March 1, 2004 the deadline for submitting revised SIPs to comply with the requirements for severe nonattainment areas. Reclassification, 68 Fed. Reg. at 3410.

In a second decision issued on April 17, 2003, the so-called "conditional approval" action, EPA granted conditional approval to the existing SIPs, notwithstanding the absence of the three elements that Sierra Club I had identified as precluding final approval. Approval and Promulgation of Air Quality Implementation Plans, Final Rule, 68 Fed. Reg. 19,-106, 19,107 (Apr. 17, 2003) [hereinafter Conditional Approval]. The agency based its conditional approval on letters submitted by the States that committed to cure those deficiencies and to comply with the additional requirements of the severe area classification by April 17, 2004. Id. at 19,131-33. The agency also made determinations regarding, inter alia, two elements that were contained in the existing SIPs: it concluded that the attainment demonstration showed that implementation of already adopted control measures would result in attainment of the ozone NAAQS by the statutory deadline, and it conditionally approved the States' ROP plans for 1996-1999.

Sierra Club now petitions for review of both actions pursuant to the jurisdictional grant of 42 U.S.C. § 7607(b)(1). In Part II, we consider Sierra Club's attack on the April 17, 2003 conditional approval action, based on EPA's acceptance of the States' commitments to cure the SIPs' deficiencies by April 17, 2004. In Part III, we consider petitioner's additional attack on the conditional approval action, based on EPA's acceptance of the two elements that were contained in the SIPs. Finally, in Part IV, we consider petitioner's challenge to the deadline extension in the January 24, 2003 bump-up action.

II.

We begin with Sierra Club's primary challenge: its contention that EPA violated the Clean Air Act by conditionally approving the concededly deficient D.C. area SIPs on the basis of the States' commitment letters. EPA's response is that conditional approval was authorized by CAA § 110(k)(4), which provides:

(4) Conditional approval

The administrator may approve a plan revision based on a commitment of the State to adopt specific enforceable measures by a date certain, but not later than 1 year after the date of approval of the plan revision. Any such conditional approval shall be treated ...


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