United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided November 29, 2005
Reissued January 18, 2006
No. 04-1211
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL PROTECTION AND
STATE OF DELAWARE,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
AMERICAN LUNG ASSOCIATION, ET AL.,
INTERVENORS
On Petition for Review of an Order of the
Environmental Protection Agency
Richard P. Mather, Sr., Kristen M. Campfield,
Commonwealth of Pennsylvania, Department of Environmental
Protection, M. Jane Brady, Attorney General, Attorney
General’s Office of the State of Delaware, and Valerie S.
Csizmadia, Deputy Attorney General, were on the briefs for
petitioners.
Kelly A. Johnson, Acting Assistant Attorney General, U.S.
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Department of Justice, John C. Cruden, Deputy Assistant
Attorney General, Lily N. Chinn, and Jan Tierney, U.S.
Environmental Protection Agency, were on the brief for
respondent. Eric G. Hostetler, U.S. Department of Justice,
entered an appearance.
Before: TATEL and BROWN, Circuit Judges, and EDWARDS,
Senior Circuit Judge.*
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Pennsylvania and Delaware each
challenges Environmental Protection Agency boundaries for
areas not in compliance with Clean Air Act ozone pollution
standards. Finding EPA’s boundaries neither arbitrary nor
capricious, we deny the petitions for review.
I.
Title I of the Clean Air Act (CAA) charges EPA with
formulating National Ambient Air Quality Standards (NAAQS).
42 U.S.C. §§ 7408-09. NAAQS set maximum permissible
concentrations of certain specified pollutants in the ambient air.
Id. In 1997, EPA established an 8-hour standard for ozone that
required areas to stay below 0.08 parts per million of ozone
concentration averaged over 8 hours. 40 C.F.R. § 50.10.
According to CAA procedures, once EPA promulgates a
NAAQS, each State must submit proposed designations for all
areas within its borders. States designate areas as “attainment”
or “nonattainment” depending on the level of compliance or,
absent adequate information, as “unclassifiable.” 42 U.S.C.
§ 7407(d)(1). After receiving state recommendations, EPA
*Senior Circuit Judge Edwards was in regular active
service at the time of oral argument.
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promulgates final designations. The statute grants EPA the
following authority to modify state suggestions:
[T]he Administrator may make such modifications as
the Administrator deems necessary to the designations
of the areas (or portions thereof) submitted [by the
States] (including to the boundaries of such areas or
portions thereof). Whenever the Administrator
intends to make a modification, the Administrator
shall notify the State and provide such State with an
opportunity to demonstrate why any proposed
modification is inappropriate.
42 U.S.C. § 7407(d)(1)(B)(ii).
The CAA establishes either the Metropolitan Statistical
Area (MSA) or the Consolidated Metropolitan Statistical Area
(C/MSA) as the presumptive boundary for nonattainment areas
classified as serious, severe, or extreme. 42 U.S.C. §
7407(d)(4)(A)(iv). The CAA is silent, however, with respect to
boundary setting for areas designated as “moderate”—such as
the areas at issue in this case. See Air Quality Designations and
Classifications for the 8-Hour Ozone National Ambient Air
Quality Standards; Early Action Compact Areas with Deferred
Effective Dates, 69 Fed. Reg. 23,858, 23,909 (Apr. 30, 2004) (to
be codified at 40 C.F.R. pt. 81) (“Designation Rule”)
(designating Cecil County, Maryland as “moderate”); id. at
23,921 (designating Ocean County, New Jersey as “moderate”).
As a result, EPA promulgated a policy to guide States through
the designation process for all areas within their boundaries. See
8-Hour Ozone NAAQS Guidance on Nonattainment
Designations (Mar. 28, 2000) (“Designation Guidance”).
Mirroring the CAA, the Designation Guidance sets the MSA or
C/MSA as the presumptive boundary for all nonattainment areas
regardless of the severity of their nonattainment status. Id. at 3.
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For areas designated nonattainment for the 1-hour ozone
standard (the standard in place before the 8-hour NAAQS), the
Designation Guidance sets the larger of the C/MSA or the 1-
hour nonattainment area as the presumptive boundary. Id. at 6.
Under the Designation Guidance, States wishing to modify
presumptive boundaries must undertake a detailed analysis of
eleven specified factors—including population density, location
of emission sources, traffic and commuting patterns,
meteorology, and geography. See id. at 4 (listing the eleven
factors); see also 42 U.S.C. § 7407(d)(4)(A)(v) (enumerating six
similar factors the Administrator should consider when asked to
amend the presumptive boundaries for serious, severe, and
extreme areas).
This case concerns EPA’s placement of two counties:
Ocean County, New Jersey and Cecil County, Maryland. Ocean
County is in the New York-Northern New Jersey-Long Island 1-
hour nonattainment area, its presumptive location for the 8-hour
NAAQS. See Letter from Jane M. Kenny, Regional
Administrator, EPA Region II, to James E. McGreevey,
Governor of New Jersey (Dec. 3, 2003); see also Designation
Guidance 6 (designating 1-hour nonattainment area boundaries
as presumptive locations for nonattaining counties). Cecil
County is in the Philadelphia-Wilmington-Atlantic City
nonattainment area, its presumptive location. See Letter from
Donald D. Welsh, Regional Administrator, EPA Region III, to
Robert L. Ehrlich Jr., Governor, State of Maryland (Dec. 3,
2003); see also Designation Guidance 6. In a letter to EPA,
New Jersey asked the Agency to transfer Ocean County to the
Philadelphia nonattainment area and Cecil County to the
Baltimore-Washington-Northern Virginia nonattainment area.
According to New Jersey, because Ocean County lies downwind
from Philadelphia, the Philadelphia nonattainment area affects
that county’s air quality far more than does the New York
nonattainment area. Similarly, New Jersey argued that because
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Cecil County lies downwind of Baltimore, the Baltimore
nonattainment area affects that county’s air quality more than
does the Philadelphia nonattainment area. Id. Connecticut and
New York supported New Jersey’s request. Maryland
disagreed, recommending that Cecil County remain in the
Philadelphia area. Pennsylvania said nothing about Cecil
County’s placement, but recommended that Ocean County
remain in the New York area, arguing that Ocean County
emissions affect New York’s air quality more than
Philadelphia’s. Taking an entirely different approach, Delaware
urged EPA to create one regional nonattainment area spanning
from Northern Virginia to Maine. No State submitted the
required eleven-factor analysis.
EPA declined to transfer either county, citing Ocean
County’s location within the New York nonattainment area and
Maryland’s recommendation that Cecil County remain in the
Philadelphia nonattainment area. In follow-up letters to EPA,
New Jersey, New York, Connecticut, Delaware, and
Pennsylvania each reiterated their recommendations and
supplied additional information. Only New Jersey submitted the
required eleven-factor analysis, but only in support of its
recommendation to transfer Ocean County to the Philadelphia
nonattainment area. Maryland, which supported keeping Cecil
County in its presumptive location, filed no new information.
In a Federal Register announcement issued on April 30,
2004, EPA designated and established the geographic
boundaries for attainment, nonattainment, or unclassifiable areas
throughout the nation. See Designation Rule, 69 Fed. Reg. at
23,877-23,951. The final rule included both Ocean and Cecil
counties in the Philadelphia nonattainment area. Id. at 23,921,
23,909. In other words, EPA moved Ocean County from its
presumptive location in the New York area to the Philadelphia
area (as New Jersey had requested), but left Cecil County in its
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presumptive location in the Philadelphia area (as Maryland had
requested).
Petitioners, Pennsylvania’s Department of Environmental
Protection and Delaware, challenge EPA’s Designation Rule,
arguing that the Agency’s inconsistent consideration of
downwind effects renders the Ocean and Cecil County
designations arbitrary and capricious. In addition, Delaware
reiterates its view that EPA should have established a much
larger nonattainment area encompassing the entire northeast
corridor. In reviewing these claims, we set aside EPA’s air
quality designations only if we find them “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). Under this standard, we will not
substitute our judgment for the agency’s, especially where the
challenged decision implicates substantial agency expertise.
Huls America Inc. v. Browner, 83 F.3d 445, 452 (D.C. Cir.
1996); see also Appalachian Power Co. v. EPA, 135 F.3d 791,
801-02 (D.C. Cir. 1998) (“Our analysis is guided by the
deference traditionally given to agency expertise, particularly
when dealing with a statutory scheme as unwieldy and science-
driven as the Clean Air Act.”).
II.
We begin with EPA’s decision to place both Ocean and
Cecil counties in the Philadelphia nonattainment area.
According to Pennsylvania and Delaware, these placements are
contradictory. Although both areas are affected by downwind
pollution (Ocean County by Philadelphia and Cecil County by
Baltimore), EPA assigned Ocean County on the basis of its
vulnerability to Philadelphia’s downwind pollution, but left
Cecil County in its presumptive Philadelphia location
notwithstanding Baltimore’s downwind effects. The two States
also contend that EPA simply deferred to Maryland’s
recommendation that Cecil County remain in its presumptive
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location, thus abdicating its statutory responsibility to make final
nonattainment decisions.
EPA defends its action on two grounds. First, relying on
the primary emphasis it gives to “the recommendations made by
States for the areas within their borders,” Resp’t’s Br. 13, it
points out that New Jersey supported transferring Ocean County
to the Philadelphia nonattainment area while Maryland opposed
transferring Cecil County to Baltimore. As EPA observes, the
CAA gives great deference to governors’ recommendations for
areas within their states, providing only that EPA “may” make
any modifications it “deems necessary.” 42 U.S.C. §
7407(d)(1)(B)(ii) (emphasis added). Second, EPA relies on
New Jersey’s eleven-factor analysis, which provides evidence,
supported by EPA’s own modeling of wind trajectories, that
“New York state contributes very little to Ocean County’s ozone
violations, particularly when compared to Pennsylvania.”
Resp’t’s Br. 16. As to Cecil County, EPA points out that
contrary to its Designation Guidance, no State submitted an
eleven-factor analysis supporting the county’s transfer to the
Baltimore area.
Given our highly deferential standard of review, we see no
basis for upsetting EPA’s designations. In the Designation
Guidance—which neither Pennsylvania nor Delaware
challenges—EPA says quite clearly it will exercise its discretion
to modify home state recommendations only when it receives
evidence on eleven relevant factors which, together with data
collected by the Agency, demonstrate that the presumptive
boundary—the 1-hour nonattainment area in this case—is
inappropriate. See Designation Guidance 4, 6. In assigning
Ocean and Cecil counties to the Philadelphia nonattainment
area, EPA adhered to this policy. As to Cecil County, since no
one provided an eleven-factor analysis to overcome the county’s
presumptive placement, EPA deferred to the home state
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(Maryland) recommendation, and placed the county within the
Philadelphia nonattainment area. As to Ocean County, not only
did the home state (New Jersey) recommend placing the county
in the Philadelphia nonattainment area rather than the New York
area, but the State provided a supporting eleven-factor analysis.
To be sure, the two placement decisions appear inconsistent
with respect to EPA’s consideration of downwind effects.
Under EPA’s own standards, however, the decisions are
perfectly consistent: In both cases, EPA deferred to home state
recommendations and adhered to the Designation Guidance
requirement that those seeking to amend presumptive
boundaries must submit an eleven-factor analysis. We will
therefore deny the petitions for review on this issue.
III.
This brings us to Delaware’s challenge to EPA’s placement
of nonattaining counties in locally based C/MSAs or 1-hour
nonattainment areas rather than in the “broader, contiguous,
interstate nonattainment area” proposed by Delaware. Pet’rs’
Br. 32. Citing “undisputed evidence that ground level ozone is
a regional problem in the Mid-Atlantic, with transport being a
significant issue of concern,” Delaware argues that EPA has
impaired CAA goals by refusing to create one large
nonattainment area consisting of all States whose contributions
to pollutants affect each other’s ability to reach attainment. Id.
at 28.
The CAA refers to the designation of nonattaining counties
and “nearby area[s]” that contribute to exceedances. 42 U.S.C.
§ 7407(d)(1)(A)(i). EPA interprets “nearby” to require locally-
based nonattainment areas, explaining that “Congress has
established a different mechanism to deal with . . . [the] long-
range ozone transport problem.” Resp’t’s Br. 27. Offering a
different interpretation of the CAA, Delaware contends that
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since all counties from Virginia to Maine are nonattainment
areas, all are “nearby” and that nothing in the statute prevents
placing them in one contiguous area. While this construction of
“nearby” may well be sensible, Chevron requires that we defer
to the agency’s reasonable interpretation of the term, and
Delaware has given us no reason to think that EPA’s
interpretation is unreasonable. Chevron U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (“[I]f the
statute is silent or ambiguous with respect to the specific issue,
the question for the court is whether the agency’s answer is
based on a permissible construction of the statute.”).
Defending its failure to produce an eleven-factor analysis,
Delaware argues that “in practice” the Designation Guidance
promotes smaller nonattainment areas, “exactly the opposite of
what Delaware believes should be done under the CAA.” Reply
Br. 10. But Delaware has offered no evidence that “in practice”
EPA will not enlarge a nonattainment area in response to an
eleven-factor analysis. Indeed, in this case EPA did just that:
Responding to New Jersey’s eleven-factor analysis, it enlarged
the Philadelphia area to include Ocean County.
In sum, given EPA’s broad discretion under the CAA to
determine when to modify state proposals, and given Delaware’s
failure either to produce the eleven-factor analysis or to
challenge the Designation Guidance, Delaware has offered us no
basis for questioning EPA’s rejection of its proposal to establish
a broad, interstate nonattainment area.
IV.
The petitions for review are denied.
So ordered.