May 30, 2017
Motion to Dismiss or Transfer to the U.S. Court of Appeals
for the D.C. Circuit.
Bauer, Ripple, and Sykes, Circuit Judges.
Illinois Power Cooperative seeks review of a final rule of
the Environmental Protection Agency designating Williamson
County, Illinois, as a nonattainment area for national air
quality standards for sulfur dioxide. The rule in question is
not limited to Williamson County; it makes attainment
designations for 61 geographic areas spanning 24 states. The
EPA moves to dismiss or transfer the petition to the D.C.
Circuit under the terms of the judicial-review provision of
the Clean Air Act, which designates that circuit as the
exclusive venue for review of "nationally
applicable" agency actions. 42 U.S.C. § 7607(b)(1).
We agree that the challenged rule is nationally applicable
and therefore transfer the petition to the D.C. Circuit. Our
decision conflicts with Madison Gas & Electric Co. v.
EPA, 4 F.3d 529 (7th Cir. 1993). But Madison
Gas is inconsistent with the text of § 7607(b)(1)
and is therefore overruled.
Clean Air Act "establishes a comprehensive program for
controlling and improving the nation's air quality
through both state and federal regulation." Sierra
Club v. EPA, 774 F.3d 383, 386 (7th Cir. 2014). The Act
directs the EPA to establish National Ambient Air Quality
Standards, which set the "maximum permissible
atmospheric concentrations for certain harmful air
pollutants." Indiana v. EPA, 796 F.3d 803, 804
(7th Cir. 2015); see 42 U.S.C. §§
7408-7409; Sierra Club, 774 F.3d at 386. Within two
years of revising or setting a new air quality standard, the
EPA must evaluate compliance with the standard and classify
geographic regions around the country as areas of
"attainment" or "nonattainment" (or
designate them as "unclassifiable"). 42 U.S.C.
§ 7407(d)(1)(A), (d)(1)(B)(i); see ATK Launch Sys.,
Inc. v. EPA, 651 F.3d 1194, 1195 (10th Cir. 2011). In
doing so the EPA solicits recommendations from the state
regulators on how to designate areas within the state. If the
EPA disagrees with a state's recommendation for any
particular area, it notifies the state and allows an
opportunity for public comment on its proposed modification.
See § 7407(d)(1)(A), (d)(1)(B)(ii); ATK
Launch Sys., 651 F.3d at 1195. The EPA then promulgates
a final rule listing and explaining the designations, §
7407(d)(1)(B)(i), (d)(2), which in turn affects a state's
obligations in developing a state implementation plan to
maintain or achieve air quality standards, see 42
U.S.C. §§ 7410, 7471, 7502; ATK Launch
Sys., 651 F.3d at 1195.
the EPA revised the national air quality standards for sulfur
dioxide. See Primary National Ambient Air Quality
Standard for Sulfur Dioxide, 75 Fed. Reg. 35, 520 (June 22,
2010) (as codified at 40 C.F.R. pts. 50, 53, and 58). The
agency did not have sufficient information to complete the
initial compliance designations within two years, so it took
advantage of a one-year extension allowed by statute.
See § 7407(d)(1)(B)(i). As the extended
deadline approached, the EPA remained unable to complete a
full list of attainment designations for the entire country,
so it issued a rule containing a partial list covering 29
areas in 16 states. See Air Quality Designations for
the 2010 Sulfur Dioxide (SCh) Primary National Ambient Air
Quality Standard ("Round 1 Designations"), 78 Fed.
Reg. 47, 191, 47, 193 (Aug. 5, 2013) (as codified at 40
C.F.R. pt. 81). The EPA explained in its Round 1 Designations
that the remaining designations would be forthcoming in
"separate future actions." Id.
Sierra Club and the National Resources Defense Council sued
the agency alleging that it had failed to carry out a
nondiscretionary duty under the Clean Air Act. The parties
ultimately negotiated a consent decree in which the EPA
agreed to issue the remaining designations in multiple rounds
by 2020. See Sierra Club v. McCarthy, No.
3:13-cv-3953-SI, Consent Decree (N.D. Cal. Mar. 2, 2015).
entering the consent decree, the EPA solicited updated
recommendations from the states. Illinois promptly responded.
As relevant here, state regulators recommended that the EPA
designate Williamson County in southern Illinois as an
attainment area. The EPA reviewed the proposed designations
from the state regulators and in due course announced its
intention to reject their recommendation for Williamson
County and instead designate it as an area of nonattainment.
The EPA attached a technical-support document explaining that
the modeling method used by the state regulators was flawed.
The EPA solicited public comments on the proposed
Illinois Power Cooperative, which operates a large power
plant in Williamson County, submitted public comments
opposing the nonattainment designation. The Cooperative
challenged the technical basis for the EPA's designation
and submitted alternative modeling results showing that the
area surrounding the power plant met the new air quality
standard. The EPA reviewed the comments but was unmoved.
2016 the EPA promulgated a final rule listing and explaining
its Round 2 Designations. See Air Quality
Designations for the 2010 Sulfur Dioxide (SO2) Primary
National Ambient Air Quality Standard-Round 2, 81 Fed. Reg.
45, 039 (July 12, 2016) (as codified at 40 C.F.R. pt. 81).
The rule contained attainment designations for 61 additional
areas across 24 states, id. at 45, 040, and included
a nonattainment designation for Williamson County,
id. at 45, 047.
Cooperative filed a timely petition for review with this
court under the judicial-review provision of the Clean Air
Act, § 7607(b)(1), and Rule 15(a) of the Federal Rules
of Appellate Procedure. The Cooperative simultaneously asked
the EPA to reconsider its designation of Williamson County as
an area of nonattainment. The EPA denied reconsideration, and
the Cooperative petitioned for review of that decision as
well. We consolidated the two petitions. There is no need to
distinguish between the two, so we'll refer to them as a
moved to dismiss the petition for lack of jurisdiction or
improper venue under § 7607(b)(1), which establishes
venue rules for judicial review of EPA actions under the
Clean Air Act. Alternatively, the agency moved to
transfer the petition to the D.C. Circuit to be consolidated
with six other petitions challenging the Round 2 Designations
and a subsequent supplement to the rule.See Masias v.
EPA, Nos. 16-1314, 16-1318, 16-1384, 16-1424, 17-1053
& 17-1055 (D.C. Cir.). The EPA reminded us that in 2013
we transferred to the D.C. Circuit a similar petition
challenging the Round 1 Designations for sulfur dioxide.
See Ameren-Energy Res. Generating Co. v. EPA, No.
13-2959 (7th Cir. Dec. 18, 2013) (granting, over the
petitioner's objection, the EPA's motion to
transfer); see also Treasure State Res. Indus. Ass'n
v. EPA,805 F.3d 300, 303 (D.C. Cir. 2015)
(consolidating and denying on the merits the petitioners'