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Southern Illinois Power Cooperative v. Environmental Protection Agency

United States Court of Appeals, Seventh Circuit

July 12, 2017

Southern Illinois Power Cooperative, Petitioner,
v.
Environmental Protection Agency and SCOTT Pruitt, Administrator, Respondents.

          Argued May 30, 2017

         On Motion to Dismiss or Transfer to the U.S. Court of Appeals for the D.C. Circuit.

          Before Bauer, Ripple, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         Southern 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.[1]

         I. Background

         The 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.

         In 2010 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.

         The 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).

         After 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 designation.

         Southern 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.

         In July 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.

         The 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 single petition.

         The EPA 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.[2] 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.[3]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' ...


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