In an opinion handed down February 16, 2018, a panel of the U.S. Court of Appeals for the D.C. Circuit addressed more than a dozen contentions that the EPA had misapplied its Clean Air Act (CAA) authority in an Obama-era final rule implementing the 2008 National Ambient Air Quality Standards (NAAQS) for ozone. The rule, Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Review Requirements (Final Rule) was published in the March 6, 2015, FR).
The opinion responded to two petitions consolidated under South Coast Air Quality Management District (SCAQMD) v. EPA et al.
Regarding the first petition, the panel denied SCAQMD’s contention that the Agency incorrectly concluded that a state’s reasonable further progress for an NAAQS nonattainment area could not in part be measured by emissions reductions that occur outside that area.
Filed by several environmental groups and Physicians for Social Responsibility, the second petition challenged 15 aspects of the Final Rule. The panel agreed with the petitioners on nine of those claims and vacated each associated provision, leaving the remaining six provisions in place.
The opinion can have substantial influence on measures states take to meet the 2008 Ozone NAAQS, and its direct effects as well as its implications should be carefully studied by all stakeholders. We list here each issue on which the panel ruled.
SCAQMD Petition
The final rule indicates that states may not take credit for volatile organic compound (VOC) or nitrogen oxides (NOx) reductions from sources outside the nonattainment area for purposes of meeting the 3 percent reasonable further progress requirements. The SCAQMD argued that because downwind nonattainment areas are impacted by emissions from upwind areas, the EPA could reasonably interpret in the area to mean the transport couple area—a larger area consisting of the nonattainment area plus the upwind area from which emissions reductions would be obtained.
The panel agreed that the statutory language covering this issue is ambiguous. However, the panel said the CAA provides states with several tools to account for transported air pollution, including asking the EPA to approve new boundaries for air quality control regions. Applying the Chevron Deference, the panel said the EPA had reasonably prohibited areas from taking credit for reductions achieved by other areas.
Environmental Petition
The thrust of the environmental petition is that the EPA acted outside its statutory authority by revoking the 1997 Ozone NAAQS when it promulgated the 2008 Ozone NAAQS and the Final Rule. The plaintiffs’ contentions and the panel rulings are as follows:
Granted
- Contention: By revoking the 1997 NAAQS, the Final Rule arbitrarily waives the obligation to attain the 1997 NAAQS by the statutory deadline.
Ruling—granted. The Final Rule relaxed the controls applicable to areas designated nonattainment under the 1997 NAAQS in contravention of the antibacksliding requirement.
- Contention: Elimination of New Source Review (NSR) and conformity in orphan nonattainment areas violates the antibacksliding requirements. (Orphan nonattainment areas are areas designated attainment for the 2008 NAAQS but nonattainment for the 1997 NAAQS.)
Ruling—granted. Although orphan nonattainment areas were originally designated attainment under the 2008 NAAQS, they have never been redesignated to attainment under the 1997 NAAQS. The EPA may not permit termination of NSR and conformity in the absence of formal redesignation.
- Contention: For orphan nonattainment areas, the final rule unlawfully did not require states to adopt any outstanding applicable requirements for the revoked 1997 standard.
Ruling—granted. Without requiring nonattainment areas to meet the requirements for reattainment, the EPA improperly waived the requirement that states adopt outstanding applicable requirements for the revoked 1997 NAAQS.
- Contention: Elimination of transportation conformity in orphan maintenance areas violates the CAA.
Ruling—granted. Nothing in the CAA allows the EPA to waive this unambiguous statutory requirement.
- Contention: The Final Rule impermissibly waives the maintenance requirements for orphan nonattainment areas. The EPA contended there is no statutory requirement for a separate maintenance plan for orphan nonattainment areas.
Ruling—granted. CAA Section 7407(d)(3)(E) states that the EPA must “approve a maintenance plan for the areas as meeting the requirement of section 7505a.”
- Contention: The EPA did not address comments that identified examples of orphan nonattainment areas that purportedly were in fact not attaining the 2008 NAAQS.
Ruling—granted. In its response to these comments, the EPA addressed enforcement issues with the current NAAQS, not issues with the underlying rule.
- Contention: Permitting states to shift other antibacksliding requirements to contingency measures violates the CAA. State implementation plans (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. The EPA countered that states must continue implementing all such measures in previously approved SIPs unless the EPA approves requests to amend SIPs to convert such requirements into contingency measures.
Ruling—granted. For the same reasons that the EPA may not permit states to eliminate NSR and transportation conformity, the EPA also may not permit states to shift other antibacksliding requirements to their list of contingency measures without complying with the statutory requirements for redesignation.
- Contention: The EPA may not approve a state’s submission of a redesignation substitute request for a revoked NAAQS when the area does not meet all five CAA conditions for redesignation.
Ruling—granted. All five conditions for redesignation must be met.
- Contention: The Final Rule impermissibly eliminated the requirement that orphan maintenance areas prepare a second maintenance plan under Section 7505a(b).
Ruling—granted. The revocation of the old NAAQS does not waive the unambiguous requirement for second maintenance plans under Section 7505a(b).
Denied
- Contention: A SIP for an orphan nonattainment area must include assurance that pollution from existing sources and new sources not subject to Prevention of Significant Deterioration (PSD) requirements does not cause those areas to fall into violation of the 2008 NAAQS.
Ruling—denied. The EPA adequately explained why measures that achieved attainment of both the 1997 NAAQS and the 2008 NAAQS should be adequate to maintain the same 2008 NAAQS that has already been attained.
- Contention: States may not remove certain antibacksliding requirements under the 1997 NAAQS when they seek to redesignate an area with an approved maintenance plan under the 2008 NAAQS.
Ruling—denied. The EPA properly subjected these areas to antibacksliding requirements when the 1997 NAAQS was revoked because they were still in nonattainment at the time of revocation.
- Contention: The final rule incorrectly allows nonattainment areas to omit the 15 percent rate of progress for VOC reductions.
Ruling—denied. The final rule properly allowed areas that had revised their SIPs to include a 15 percent VOC emissions reduction to not be subjected to a second 15 percent requirement under the new NAAQS.
- Contention: The final rule violated the CAA because it does not require each individual source to meet the NOx reasonably available control technology (RACT) requirement.
Ruling—denied. CAA Section 7502(c)(1) does not require reductions from each individual major source.
- Contention: The Final Rule unlawfully waives the CAA Section 7410(a)(1) maintenance planning requirement for the 2008 NAAQS.
Ruling—denied. The EPA adequately explained why no additional measures beyond the Section 7505a(a) maintenance plans and the PSD plans for the 2008 NAAQS are necessary to provide for maintenance of the 2008 NAAQS.
- Contention: The EPA impermissibly used 2011 instead of 2012 as the baseline year for reasonable further progress.
Ruling—denied. The CAA is ambiguous about the baseline; the panel deferred to EPA’s reasonable selection of 2011.