United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 2005 Decided October 20, 2006
No. 04-1291
ENVIRONMENTAL DEFENSE, ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY AND
STEPHEN L. JOHNSON, ADMINISTRATOR, ENVIRONMENTAL
PROTECTION AGENCY,
RESPONDENTS
On Petition for Review of an Order of the
Environmental Protection Agency
Robert E. Yuhnke argued the cause and filed the briefs for
petitioners.
Natalia T. Sorgente, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief were
John C. Cruden, Deputy Assistant Attorney General, and Sara
Schneeberg, Attorney, U.S. Environmental Protection Agency.
Before: RANDOLPH, TATEL and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: In this petition for review,
Environmental Defense Fund, Natural Resources Defense
Council, Sierra Club, and Transportation Solutions Defense and
Education Fund (“petitioners”) challenge three sets of
regulations promulgated by the Environmental Protection
Agency (“EPA”) governing how states are to bring their
transportation plans into conformity with the requirements of the
Clean Air Act (the “Act”). 42 U.S.C. § 7401 et seq. One set of
regulations, which appears at 40 C.F.R. § 93.118(b), (d), and
(e)(6), was issued in 1997 and not addressed in the 2004
rulemaking under review.1 We do not have jurisdiction to
review petitioners’ challenge to this set of regulations because
the statutory period for judicial review has long since passed.
We grant the petition with respect to 40 C.F.R.
§ 93.109(e)(2)(v), because it is inconsistent with the Act’s
requirement that activities that emit pollutants comply with an
approved transportation implementation plan. Finally, we deny
petitioners’ challenge to 40 C.F.R. § 93.119(b)(2), (d), and (e),
because the Act does not require that activities involving
transportation actually reduce pollutants, but merely that they
not frustrate an implementation plan’s purpose to reduce overall
emissions.
I.
In enacting the Clean Air Act, Congress found “that air
pollution prevention (that is, the reduction or elimination,
through any measures, of the amount of pollutants produced or
1
See Transportation Conformity Rule Amendments for the
New 8-hour Ozone and PM2.5 National Ambient Air Quality
Standards and Miscellaneous Revisions for Existing Areas;
Transportation Conformity Rule Amendments: Response to Court
Decision and Additional Rule Changes, 69 Fed. Reg. 40,004 (July 1,
2004) (the “Final Rule”).
3
created at the source) and air pollution control at its source is the
primary responsibility of States and local governments.” 42
U.S.C. § 7401(a)(3). Accordingly, the Act seeks “to encourage
and assist the development and operation of regional air
pollution prevention and control programs.” Id. § 7401(b)(4).
It does so by “establish[ing] a joint state and federal program for
regulating the nation’s air quality.” Envtl. Def. Fund v. EPA,
167 F.3d 641, 643 (D.C. Cir. 1999). At the federal level, the Act
requires EPA to promulgate National Ambient Air Quality
Standards (“NAAQS”), which seek to promote and maintain
public health by establishing maximum limits for various air
pollutants. See 42 U.S.C. § 7409. As it determines what is
necessary to protect the public health, EPA may revise existing
NAAQS or promulgate NAAQS for new pollutants, thus
creating new limits which states must subsequently work to
meet. See id. § 7409.
States, in turn, are required to adopt State Implementation
Plans (“SIPs”) that “provide[] for implementation, maintenance,
and enforcement of [NAAQS] in each air quality region.” Id.
§ 7410(a)(1); see also id. § 7407(a) (requiring each state to
submit a SIP for each air quality control region within its
borders). SIPs, which are sometimes also referred to in the
statutes and regulations as “implementation plans,” chart a
course for reducing pollutant emissions by requiring states to
“include enforceable emission limitations and other control
measures, means, or techniques . . . , as well as schedules and
timetables for compliance, as may be necessary or appropriate
to meet the applicable requirements” of the Act. Id.
§ 7410(a)(2)(A). Though created by the states, SIPs do not take
effect until approved by EPA. See id. § 7506(c)(1).
As we have previously described, “[i]n 1977, Congress
amended the Clean Air Act to ensure that transportation
planning at the local level conforms to pollution controls
contained in approved SIPs.” Envtl. Def. Fund v. EPA, 167 F.3d
4
at 643. “[B]ecause federal agencies ‘largely ignored’” the 1977
amendments, Congress amended the Act again in 1990 to
expand the content and scope of the conformity requirements.
Id. at 643 (quoting Clean Air Conference Report, 136 Cong.
Rec. 36,103, 36,105-06 (1990)) (ellipsis omitted). Thus, today,
after a SIP is approved by EPA and is in force in an area, no
department of the federal government may
engage in, support in any way or provide
financial assistance for, license or permit, or
approve, any activity which does not conform
[to the SIP] . . . . Conformity to an
implementation plan means--:
(A) conformity to an implementation plan’s
purpose of eliminating or reducing the
severity and number of violations of the
national ambient air quality standards and
achieving expeditious attainment of such
standards; and
(B) that [transportation] activities will not—
(i) cause or contribute to any new violation of
any standard in any area;
(ii) increase the frequency or severity of any
existing violation of any standard in any area;
or
(iii) delay timely attainment of any standard
or any required interim emission reductions or
other milestones in any area.
42 U.S.C. § 7506(c)(1) (emphasis added). This definition of
conformity and EPA’s attempts to promulgate regulations
5
implementing it have been before this Court several times. See,
e.g., Envtl. Def. Fund v. EPA, 82 F.3d 451, 454 (D.C. Cir. 1996)
(“EDF I”); Envtl. Def. Fund v. EPA, 167 F.3d at 643 (“EDF II”);
Sierra Club v. EPA, 129 F.3d 137, 138 (D.C. Cir. 1997).
Petitioners in this case challenge three sets of EPA
regulations that implement this statutory conformity provision
with respect to a specific transportation planning process
required by the Urban Mass Transportation Act. “Under the
Urban Mass Transportation Act, the governor of each state, in
agreement with local officials, must designate a metropolitan
planning organization (known as an ‘MPO’) for each urban area
with more than 50,000 people.” EDF II, 167 F.3d at 644 (citing
49 U.S.C. § 5303(c)(1)). As we have explained,
[t]he MPO plans for the transportation needs of
that area. It develops a long range transportation
plan . . . which specifies the facilities, services,
financing techniques, and management policies
that will comprise the area’s transportation
system over a 20-year period, see id. § 5303(f),
as well as a short-term transportation
improvement program . . . which identifies and
prioritizes the specific transportation projects to
be carried out over the next three years, see id.
§ 5304(b).
EDF II, 167 F.3d at 644.
The Clean Air Act’s 1990 conformity requirements give
SIPs, once in effect, added bite by requiring that “[n]o [MPO]
. . . shall give its approval to any project, program, or plan which
does not conform to an implementation plan approved or
promulgated under section 7410 of this title,” and by
conditioning federal approval upon conformance to a SIP. 42
U.S.C. § 7506(c)(1) (emphasis added).
6
II.
The judicial review provision of the Clean Air Act
provides that
a petition for review of action of the
Administrator in promulgating any national
primary or secondary ambient air quality
standard . . . or any other nationally applicable
regulations promulgated, or final action taken,
by the Administrator under this chapter may be
filed only in the United States Court of Appeals
for the District of Columbia.
***
Any petition for review under this subsection
shall be filed within sixty days from the date
notice of such promulgation, approval, or action
appears in the Federal Register . . . .
42 U.S.C. § 7607(b)(1) (emphasis added). EPA published the
final rule at issue here on July 1, 2004 (the “2004 Rule”), and
petitioners filed a petition for review within sixty days.
In their brief, petitioners challenge three of EPA’s
regulations in the 2004 Rule: 40 C.F.R. § 93.109(e)(2)(v); 40
C.F.R. § 93.119(b)(2), (d), and (e); and 40 C.F.R. § 93.118(b),
(d), and (e)(6). With respect to the first two regulations, EPA
concedes, and we agree, that petitioners have made a timely
challenge to new regulations first announced in the final rule.
There is no dispute that we thus have jurisdiction pursuant to 42
U.S.C. § 7607(b)(1) to hear the challenge to 40 C.F.R.
§ 93.109(e)(2)(v) and 40 C.F.R. § 93.119(b)(2), (d), and (e),
and we will discuss the merits of those challenges shortly. But
7
a jurisdictional issue has been raised with respect to the third
regulation petitioners challenge, 40 C.F.R. § 93.118(b), (d), and
(e)(6), and we discuss that first. Parts of this regulation were
promulgated in 1993, parts in 1997; but none of it originated in
the 2004 rulemaking now under review. See Criteria and
Procedures for Determining Conformity to State or Federal
Implementation Plans of Transportation Plans, Programs, and
Projects Funded or Approved Under Title 23 U.S.C. or the
Federal Transit Act, 58 Fed. Reg. 3768, 3783 (Jan. 11, 1993);
Transportation Conformity Rule Amendments: Flexibility and
Streamlining, 62 Fed. Reg. 43780, 43810-12 (Aug. 15, 1997)
(the “1997 regulation”). Petitioners did not file this petition for
review within sixty days of the promulgation of this regulation.
Thus, EPA contends we are without jurisdiction to hear
petitioners’ belated challenge to it.
The 2004 Rule made only minor changes to the 1997
regulation, which petitioners do not challenge. Instead, they
seek review of the 1997 regulation itself, which they cannot
now do. Petitioners make two arguments in an effort to sustain
their challenges. First, they argue that they “filed a request that
EPA amend its 1997 regulations.” Pet. Reply Br. at 18.
Petitioners seek the benefit of
this circuit’s long-standing rule that although a
statutory review period permanently limits the
time within which a petitioner may claim that an
agency action was procedurally defective, a
claim that agency action was violative of [sic]
statute may be raised outside a statutory
limitations period, by filing a petition for
amendment or rescission of the agency’s
regulations, and challenging the denial of that
petition.
8
Kennecott Utah Copper Corp. v. U.S. Dep’t of Interior, 88 F.3d
1191, 1213 (D.C. Cir. 1996) (quoting Pub. Citizen v. Nuclear
Regulatory Comm’n, 901 F.2d 147, 152 (D.C. Cir. 1990))
(emphasis added); see Natural Res. Def. Council v. Nuclear
Regulatory Comm’n, 666 F.2d 595, 601-02 (D.C. Cir. 1981).
This argument cannot save petitioners’ challenge to the 1997
regulations because they did not file a petition for amendment
or rescission of EPA’s regulations as required by Kennecott.
The best they can show is a single comment made by one
petitioner in the present rulemaking arguing that one aspect of
the 1997 regulations—not even the one at issue here—should
be revised. We have never held that the Kennecott rule applies
when a petitioner has not filed a petition for amendment or
rescission, but has only offered a comment on a matter not
actually at issue, and we will not do so here. Such a holding
would not only contravene Kennecott, but it would also
circumvent our precedent on the reopening rule, invoked by
petitioners' next argument.
“[W]ell-established in this circuit,” the reopening rule
is “an exception to statutory limits on the time for seeking
review of an agency decision.” Nat’l Ass’n of Reversionary
Property Owners v. Surface Transp. Bd., 158 F.3d 135, 141
(D.C. Cir. 1998) (quoting United Transp. Union-Ill. Legislative
Bd. v. Surface Transp. Bd., 132 F.3d 71, 75-76 (D.C. Cir.
1998)) (alterations and quotation marks omitted). “[T]he period
for seeking judicial review may be made to run anew when the
agency in question by some new promulgation creates the
opportunity for renewed comment and objection.” State of Ohio
v. EPA, 838 F.2d 1325, 1328 (D.C. Cir. 1988). We cannot find
any evidence of a “new promulgation” that would create “an
opportunity for renewed comment and objection.” Petitioners
concede that the regulatory language in section 93.118(b) and
(d) that they wish to challenge was not revised. Pet. Br. at 1-2.
They also do not argue that section 93.118(e)(6) was amended
in the 2004 Rule. They argue instead that during the course of
9
the 2004 rulemaking, EPA constructively reopened section
93.118(b) and (d) by reinterpreting their provisions without
notice. Pet. Reply Br. at 19-22. A regulation may be
constructively reopened when an agency or court changes the
regulatory context in such a way that could not have been
reasonably anticipated by the regulated entity and is onerous to
its interests. Kennecott, 88 F.3d at 1214-15. An official
interpretation of a regulation may trigger a reopening. See
Public Citizen v. NRC, 901 F.2d 147, 151 (D.C. Cir. 1990).
Petitioners, however, present no evidence that EPA has
ever reinterpreted section 93.118 since it was promulgated in
1997. Their reliance upon an unpublished opinion in a case they
brought before the Eleventh Circuit, Sierra Club v. Atlanta
Regional Comm’n, No. 02-11652 (11th Cir. Oct. 30, 2002), is
of no help to their argument. Petitioners allege that EPA’s
argument in Sierra Club signaled a change in the Agency’s
interpretation from its initial promulgation in 1997. It is curious
that petitioners would cite to this case as evidence in support of
their claim, given that the Eleventh Circuit found EPA’s
interpretation in Sierra Club to be a proper application of
section 93.118 under a plain reading of the Clean Air Act’s
conformity requirements. Even in the face of a citation in the
Eleventh Circuit opinion that establishes that EPA’s argument
in Sierra Club was consistent with its 1997 rule, see
Transportation Conformity Rule Amendments: Flexibility and
Streamlining, 61 Fed. Reg. 36,112, 36,118-19 (proposed Jul. 9,
1996), and thus no reinterpretation had occurred, petitioners
claim that the Agency changed its position with respect to this
regulation between 1997 and 2002, when Sierra Club was
litigated. This change, they maintain, was “formally adopted”
in 2004, and therefore triggers reopening of the period to
challenge the regulation. Pet. Reply Br. at 22. But in arguing
that such a change has occurred, petitioners’ provide only their
own interpretation of the 1997 rule as evidence of the Agency’s
interpretation. To be sure, their understanding of 93.118 was
10
inconsistent with EPA’s interpretation when the regulation was
promulgated in 1997, when it was advanced by EPA in Sierra
Club, and when it was part of the 2004 rulemaking. But
petitioners’ showing of its differences with EPA’s
interpretation misses the mark. We require evidence that an
interpretation adopted by EPA prior to the 2004 rulemaking
differed with its own current interpretation. Petitioners have not
met their burden of proving that EPA either changed the
regulatory context in such a way that could not have been
reasonably anticipated by the regulated entity and was onerous
to its interests, see Kennecott, 88 F.3d at 1214-15, or officially
reinterpreted the regulation, see Public Citizen 901 F.2d at 151.
III.
In reviewing petitioners’ challenges to § 93.109(e)(2)(v)
and 40 C.F.R. § 93.119(b)(2), (d), and (e), we apply Chevron’s
familiar two-step inquiry. We begin by asking “whether
Congress has directly spoken to the precise question at issue.”
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842 (1984). If so, “that is the end of the matter; for
the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Id. at 842-43. If,
however, “the statute is silent or ambiguous with respect to the
specific issue,” we will defer to the agency’s reasonable
construction of the statute. Id. at 843.
A. 40 C.F.R. § 93.109(e)(2)(v)
We start with petitioners’ challenge to 40 C.F.R.
§ 93.109(e)(2)(v), which establishes interim tests for
demonstrating conformity to newly-revised ground-level ozone
NAAQS. The Clean Air Act mandates that EPA promulgate
11
NAAQS to “protect the public health.” 42 U.S.C. § 7409(b)(1).
EPA is required to review the NAAQS every five years and
revise them if necessary. Id. § 7409(d)(1). Because a SIP’s
purpose includes “eliminating or reducing the severity and
number of violations of the [NAAQS],” id. § 7506(c)(1)(A),
MPOs must revise their SIPs if and when EPA revises the
NAAQS for a relevant pollutant. In so doing, an MPO must
first propose its revised plan to EPA and demonstrate that it
adheres to the new NAAQS. Id. § 7506(c)(8). EPA must then
present the new plan to the public for comment, id.
§ 7506(c)(8)(A)(iv)(III), after which time the plan may be
adopted, id. § 7506(c)(8)(B)(i).
In 1997, EPA revised the NAAQS for ground-level
ozone, changing the standard from 0.12 parts per million over
a one-hour time frame to the more stringent 0.08 parts per
million over an eight-hour time frame. 62 Fed. Reg. At 38,856
(1997). This revision triggered the implementation process
described above. Every SIP that covers a nonattainment area
(i.e., any area that does not meet the new 8-hour ozone
standard) must be revised so that its transportation plans follow
the new, stricter NAAQS. The purpose of 40 C.F.R. § 93.109
is to provide MPOs with an interim test to take the place of
current SIPs (based on one-hour NAAQS) until the new SIPs
(based on eight-hour NAAQS) are approved. 40 C.F.R.
§ 93.109. By its terms, section 93.109(e)(2)(v) allows “interim
emissions tests” not contained in the approved SIP to supersede
motor vehicle emissions budgets (“MVEBs”), which establish
a ceiling for emissions from motor vehicle sources and which
are contained in the approved SIP. An MVEB may only be
superseded, however, when the budget “in the 1-hour ozone
applicable implementation plan . . . is not the appropriate test
and the interim emissions tests are more appropriate to ensure
that the transportation plan . . . will not create new violations,
12
worsen existing violations, or delay timely attainment of the 8-
hour ozone standard.” 40 C.F.R. § 93.109(e)(2)(v).
EPA justifies these interim tests because, it argues, they
are more stringent than the vehicle emissions budgets in the
approved SIPs that are based on the previous and less stringent
one-hour ozone NAAQS. Section 93.109(e)(2)(v) calls for a
test “more appropriate to ensure” the transportation plan “will
not create new violations.” While this reasoning may very well
provide a sound means to transition from a SIP covering old
NAAQS to a SIP incorporating new NAAQS, it is simply not
provided for in the Clean Air Act and runs afoul of its express
prohibition that “[n]o [MPO] . . . shall give its approval to any
project, program, or plan which does not conform to an
implementation plan approved or promulgated under section
7410 of this title.” 42 U.S.C. § 7506(c)(1). Under the terms of
the Act, there is no need for an interim test during some
contemplated transition period between the dates of approved
SIPs. A current SIP, even one tied to outdated NAAQS,
remains in force until replaced by another but later-approved
SIP. The Clean Air Act provides that the current SIPs are
legally sufficient until they are replaced by new SIPs. As
petitioners correctly argue, the challenged interim rule, which
purports to create a new standard to which transportation plans
must conform, violates the Act’s requirement that
transportation plans conform to an approved SIP, 42 U.S.C.
§ 7506(c). There is no allowance under the Act for interim
tests, and we have previously determined that an EPA
regulation may not allow a conformity provision to supersede
an approved SIP. See EDF II, 167 F.3d at 651 (citing 42 U.S.C.
§ 7506(c)(1), which “requires conformity determinations to be
based on a SIP ‘approved or promulgated under [42 U.S.C.
§ 7410]’ where such a SIP exists” and 42 U.S.C. § 7506(c)(2),
which “requir[es] transportation plans, programs, and projects
13
‘to conform to any applicable implementation plan in effect
under [42 U.S.C. § 7506]’”).
Given the plain language of 42 U.S.C. § 7506(c)(1), we
need not reach beyond the first step of Chevron’s inquiry.
Congress has spoken directly to the issue presented by
petitioners and we must therefore give effect to its
unambiguously expressed intent. Chevron, 467 U.S. at 842. We
may look to EPA’s interpretation of its own regulation only if
the statute is ambiguous, but it is not in this case. EPA’s rule
may be more stringent and even arguably better for the
environment than what was required by Congress. If so, the
Agency ought to make its argument to Congress, which
unambiguously required that conformity be based on “an
implementation plan approved or promulgated under section
7410.” Id. “EPA may not ‘avoid the Congressional intent
clearly expressed in the text simply by asserting that its
preferred approach would be better policy.’” Friends of the
Earth, Inc. v. EPA, 446 F.3d 140, 145 (D.C. Cir. 2006) (quoting
Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1089 (D.C. Cir.
1996)).
In a similar case, we held that regulations allowing
states to demonstrate conformity based on motor vehicle
emissions budgets in SIPs that have been submitted to EPA, but
not yet approved, violated the Act. In EDF II, EPA
promulgated a rule that allowed states to use MVEBs from SIPs
that EPA had not approved but was considering, if the
submitted SIP demonstrated that it was lowering emissions
from levels allowed in the approved SIP. We stated that
although “it may be true that plans and programs conforming to
a SIP revision under [the EPA rule in question] will not cause,
worsen, or prolong violations of air quality standards, . . . the
statute nevertheless requires conformity determinations to be
14
based on a SIP ‘approved or promulgated under section 7410 of
this title.’” EDF II, 167 F.3d at 651 (quoting 42 U.S.C.
§ 7506(c)(1)) (quotation marks and citation omitted). We
concluded that “[b]ecause [the regulation in question] would
allow a submitted but unapproved SIP revision to supersede an
approved SIP, it violates the Clean Air Act.” Id. In EDF II, the
submitted MVEBs, like the interim tests here, were more
stringent and, in the Agency’s view, better suited to protect the
environment. In EDF II, as here, EPA advanced a reasonable
policy justification for deviating from the plain language of 42
U.S.C. § 7506(c)(1). And in EDF II, as here, we upheld the
plain language of the text, as required by Chevron.
In a direct rebuff to the argument EPA now urges upon
us, the Agency acknowledged that “using updated budgets may
be preferable,” but that the “EPA does not believe that it is
legal to allow a submitted SIP to supersede an approved SIP for
years addressed by the approved SIP.” 62 Fed. Reg. at 43,783.
This interpretation was offered by EPA in response to
arguments from commenters that newly submitted SIPs often
provide a more realistic picture of the future than approved
SIPs and may in fact be more accurate, because they are “based
on the area’s latest planning assumptions.” Id.
In the same context, the Agency has also stated that
“Clean Air Act section 176(c) [42 U.S.C. § 7506(c)]
specifically requires conformity to be demonstrated to approved
SIPs. SIP revisions that EPA has approved under Clean Air Act
section 110 [42 U.S.C. § 7410] are enforceable and cannot be
relieved by a submission, even if that submission utilizes better
data.” 62 Fed. Reg. at 43,783 (emphasis added). We agree.
Finally, EPA argues that it can implement interim tests
even though they are not part of the approved and currently
15
applicable SIPs because the section of the SIP in question is no
longer applicable. It is no longer applicable, EPA argues,
because EPA has changed the ozone standard from one-hour to
eight-hours. However, it is settled law that “current SIPs remain
in force until EPA grants formal approval to a revision.”
Duquense Light Co. v. EPA, 698 F.2d 456, 471 (D.C. Cir.
1983); see also Train v. Natural Res. Def. Council Inc., 421
U.S. 60, 98 (1975). “[T]he approved SIP is the applicable
implementation plan during the time a SIP revision proposal is
pending.” General Motors Corp. v. United States, 496 U.S.
530, 540 (1990). This language is dispositive. Even when an
ozone NAAQS has been revised and the latest approved SIP
contains standards that are outdated in the sense that they are
not based on the new studies that led to the revised NAAQS, it
is the last approved SIP that nonetheless remains the applicable
SIP until it too has been not only revised but approved.
B. 40 C.F.R. § 93.119(b)(2), (d), and (e)
The petitioners next challenge 40 C.F.R. § 93.119(b)(2),
(d), and (e), which provide that in certain nonattainment areas
a conformity determination may be made using one of two
interim tests.2 Under this regulation, an MPO may demonstrate
that a transportation plan for an applicable area conforms to the
Clean Air Act if that plan passes either the “build/no build
test”3 or “the baseline year test.”4 Under the build/no build test,
2
These tests apply to “marginal and below ozone
nonattainment areas,” 40 C.F.R. § 93.119(b)(2). Petitioners challenge
the tests as they apply to marginal areas containing coarse particulate
matter, fine particulate matter, and lower than moderate ozone
nonattainment areas.
3
“(i) The emissions predicted in the “Action”
scenario are not greater than the emissions predicted
16
a plan or project conforms to the Act if it will not result in
additional total emissions from the nonattainment area. In other
words, if the total emissions in the area will remain the same
whether the MPO builds or does not build the project in
question, it will be deemed conforming. Under the baseline year
test, a plan or project conforms to the Act if the total emissions
from an area, including emissions added by the proposed plan,
will not exceed emissions limitations set in prior years—so-
called “baseline years.” In some ozone nonattainment areas,
EPA requires that conformity be based on both tests. See 40
C.F.R. § 93.119(b)(1).
While petitioners do not object to use of the baseline
year test alone, they argue that allowing an MPO to use only
the build/no build test in any nonattainment area violates the
Act because in some circumstances that test allows
transportation plans that do not reduce mobile source emissions
to be deemed conforming. That, they argue, runs afoul of the
Act’s requirement that “conformity to an implementation plan’s
purpose of eliminating or reducing . . . violations of the national
ambient air quality standards and achieving expeditious
in the “Baseline” scenario, and this can be reasonably
expected to be true in the periods between the
analysis years;” 40 C.F.R. § 93.119(b)(2) (“build/no
build test”).
4
“(ii) The emissions predicted in the “Action”
scenario are not greater than:
(A) 1990 emissions, in areas for the 1-
hour ozone NAAQS as described in
§ 93.109(c); or
(B) 2002 emissions, in areas for the 8-
hour ozone NAAQS as described in
§ 93.109(d) and (e).” 40 C.F.R.
§ 93.119(b)(2) (“baseline year test”).
17
attainment of such standards.” 42 U.S.C. § 7506(c)(1)(A)
(emphasis added). According to petitioners, this section
requires that every transportation plan must result in mobile
source emission reductions to show conformity to a SIP. EPA
argues, and we agree, that conformity to a SIP can be
demonstrated by using the build/no build test, even if individual
transportation plans do not actively reduce emissions.
Although the Act states that SIPs must reduce
violations, and therefore emissions, see 42 U.S.C.
§ 7506(c)(1)(A), it is notably silent on whether transportation
plans themselves, which are but one part of the SIP, must
reduce emissions. Because the “Act ‘is silent . . . with respect
to the specific issue’ at hand, the [Agency] may exercise its
reasonable discretion in construing the statute.” Bldg. Owners
and Managers Ass’n Intern. v. FCC, 254 F.3d 89, 93-94 (D.C.
Cir. 2001) (quoting Chevron, 467 U.S. at 842-43). The Act
specifically gives EPA authority to “promulgate . . . criteria and
procedures for determining conformity . . . in general,” 42
U.S.C. § 7506(c)(4)(A), and to “demonstrat[e] and assur[e]
conformity in the case of transportation plans,” id. at (c)(4)(B).
It is under this authority that EPA promulgated section 93.119
to “determin[e] conformity of federal actions to state or federal
implementation plans.” 40 C.F.R. § 93.119. EPA has authority
to establish conformity criteria as long as those criteria do not
contravene the purpose of reducing emissions. See 42 U.S.C.
§ 7506(c)(1)(A). EPA correctly argues that mobile source
emissions standards, like those provided in transportation plans,
constitute only one part of the total emissions standards allowed
by a SIP. The remaining part is comprised of stationary sources.
See id. at (a)(2)(c); 49 U.S.C. § 5304(b); 40 C.F.R. § 93.101.
Under EPA’s argument, a SIP could lower total overall
emissions by reducing stationary source emissions while
leaving mobile source emissions unchanged. Resp. Br. at 48. In
such cases the build/no build test would conform to a SIP’s
18
purpose of reducing overall emissions. Absent language in the
Act requiring transportation plans to actively reduce mobile
source emissions, we uphold EPA’s reasonable interpretation
of the Act under Chevron.
In EDF I we addressed a similar issue. There,
petitioners challenged a regulation that allowed EPA to
promulgate transportation plans that “d[id] not reduce
emissions,” arguing that it violated section 7506(c)(3)(A),
which requires transportation plans to “contribute to annual
emissions reductions” during an interim period in order for the
plan to be deemed conforming. 82 F.3d at 460 (quoting 42
U.S.C. § 7506(c)(3)(A)). We agreed with EPA “that plans and
improvement programs may contribute to emissions reductions
by avoiding or reducing increases in emissions over the years,”
id. at 459 (emphasis added), because although the statute
“require[d] reductions in [several pollutants],” it “d[id] not
require that the emissions come entirely from mobile sources,”
id. at 460. Further, we noted that a “requirement that the
transportation plan or program provide all the statutorily
required reductions would seem to impinge on the prerogative
of States to determine how and where to comply with the Act’s
emissions reduction requirements.” Id. Here, we face a similar
situation, and our answer remains the same. It is reasonable for
EPA to allow conformity where mobile sources do not reduce
emissions because the Act “do[es] not require that the
emissions come entirely from mobile sources.” Id.
In EDF II, we reviewed a regulation that allowed MPOs
to adopt a plan “‘even if [the plan’s] conformity status is
currently lapsed.’” 167 F.3d at 645 (quoting 40 C.F.R.
§ 93.121(a)(1)). This allowed “officials . . . [to] approve a
transportation project . . . even if the plan and program no
longer conform[ed] at the time of project approval.” Id. In that
19
case, we ruled that “a ‘conforming’ transportation project is one
that will contribute to ‘eliminating or reducing the severity and
number of violations of the [NAAQS] and achieving
expeditious attainment of such standards . . . .’” EDF II, 167
F.3d at 647 (quoting 42 U.S.C. § 7506(c)(1)(A)) (brackets
omitted). This approach is best understood in the context of our
previous holding in EDF I that contributing to reductions can
reasonably mean avoiding increases in emissions over the
years. 82 F.3d at 460. The conformity provision does “not
necessarily requir[e] the reduction of emissions attributable to
the plan or program standing alone.” Id. at 460. Our statement
in EDF II is consistent with our earlier holding and does not
diminish our responsibility in this case to uphold an agency’s
reasonable interpretation of a statute that is silent or ambiguous
as to the contested issue. 5
IV.
5
Petitioners also argue that 40 C.F.R. § 93.119(b)(2), (d), and
(e) violate 42 U.S.C. § 7506(c)(1)(B). Petitioners argue that EPA
conceded that a transportation plan that passed only the build/no build
test “could fail to meet the statutory requirement that activities not
contribute to violations of the standard.” Pet. Reply Br. 17 (citing Fed.
Reg. 40,018 (July 1, 2004)). However, this argument was not properly
made until the reply brief. As we have held on various occasions,
“[i]ssues may not be raised for the first time in a reply brief.” Rollins
Env. Services (NJ) Inc. v. EPA, 937 F.2d 649, 653 n.2 (D.C. Cir.
1991); see also McBride v. Merrell Dow & Pharmaceuticals, Inc., 800
F.2d 1208, 1210-11 (D.C. Cir. 1986); Asociacion de Compositores v.
Copyright Royalty Tribunal, 809 F.2d 926, 928 (D.C. Cir. 1987).
Although petitioners pointed to evidence in support of their argument
in the fact section of their initial brief, the argument itself must be
introduced in an opening brief. See City of Nephi v. FERC, 147 F.3d
929, 933 n.9 (D.C. Cir. 1998) (“By merely informing the court in the
statement of facts in its opening brief . . . Nephi failed properly to raise
this argument.”).
20
We grant the parties’ petition for review and hold that
section 93.109(e)(2)(v) of EPA’s regulations is unlawful
because it allows conformity to be shown based on a test not
within an applicable SIP in contravention of section 7506(c)(1)
of the Clean Air Act. We remand this section for the Agency to
align the regulation with the above provision of the Act. We
deny the parties’ petition to review section 93.119(b)(2), (d),
and (e) because it does not violate the Act. Finally, we do not
have jurisdiction to examine the parties’ petition to review
section 93.118(b), (d), and (e)(6) because the petition was not
filed before the sixty day statutory review period had run.
Petitioners’ challenges are therefore granted in part,
denied in part, and dismissed in part. 40 C.F.R.
§ 93.109(e)(2)(v) is vacated and remanded.