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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2007 Decided February 8, 2008
No. 05-1097
STATE OF NEW JERSEY, ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
UTILITY AIR REGULATORY GROUP, ET AL.,
INTERVENORS
Consolidated with Nos.
05-1104, 05-1116, 05-1118, 05-1158, 05-1159, 05-1160,
05-1162, 05-1163, 05-1164, 05-1167, 05-1174, 05-1175,
05-1176, 05-1183, 05-1189, 05-1263, 05-1267, 05-1270,
05-1271, 05-1275, 05-1277, 06-1211, 06-1220, 06-1231,
06-1287, 06-1291, 06-1293, 06-1294
On Petitions for Review of the Final Action of the
Environmental Protection Agency
2
James S. Pew argued the cause for Environmental
Petitioners. With him on the briefs were John D. Walke, Jon
Devine, Scott Edwards, Jon A. Mueller, Ann Brewster Weeks,
Jonathan F. Lewis, Brad Kuster.
Vanya S. Hogen, Colette Routel, Sarah I. Wheelock, Riyaz
A. Kanji, Philip E. Katzen, and Ann Tweedy were on the briefs
for petitioners National Congress of American Indians and
Treaty Tribes. Brian B. O'Neill entered an appearance.
Bart E. Cassidy and Meredith DuBarry Huston were on the
briefs for petitioner ARIPPA. Carol F. McCabe entered an
appearance.
Scott C. Oostdyk, Neal J. Cabral, Grant F. Crandall, Judith
Ellen Rivlin, and Eugene M. Trisko were on the briefs for
petitioners American Coal for Balanced Mercury Regulation, et
al. and United Mine Workers of America, AFL-CIO.
James B. Vasile, Brian R. Gish, Susan E. Reeves, and
Robert K. Reges were on the briefs for petitioner Alaska
Industrial Development and Export Authority.
Anne Milgram, Attorney General, Attorney General’s
Office of the State of New Jersey, Christopher D. Ball and Ruth
E. Carter, Deputy Attorneys General, Edmund G. Brown, Jr.,
Attorney General, Attorney General’s Office of the State of
California, Susan Durbin, Deputy Attorney General, Richard
Blumenthal, Attorney General, Attorney General’s Office of the
State of Connecticut, Matthew Levine, Assistant Attorney
General, Joseph R. Biden, III, Attorney General, Attorney
General’s Office of the State of Delaware, Valerie S. Csizmadia,
Deputy Attorney General, Lisa Madigan, Attorney General,
Attorney General’s Office of the State of Illinois, Ann
Alexander, Assistant Attorney, G. Steven Rowe, Attorney
3
General, Attorney General’s Office of the State of Maine,
Gerald D. Reid, Assistant Attorney General, Douglas F.
Gansler, Attorney General, Attorney General’s Office of the
State of Maryland, Kathy M. Kinsey and Judah Prero, Assistant
Attorneys General, Martha Coakley, Attorney General, Attorney
General’s Office of the Commonwealth of Massachusetts,
William L. Pardee, Assistant Attorney General, Michael A. Cox,
Attorney General, Attorney General’s Office of the State of
Michigan, Michigan Department of Environmental Quality,
Thomas L. Casey, Solicitor General, Alan F. Hoffman and Neil
D. Gordon, Assistant Attorneys General, Lori Swanson,
Attorney General, Attorney General’s Office of the State of
Minnesota, Alan C. Williams, Assistant Attorney General, Kelly
A. Ayotte, Attorney General, Attorney General’s Office of the
State of New Hampshire, Maureen D. Smith, Senior Assistant
Attorney General, Gary King, Attorney General, Attorney
General’s Office of the State of New Mexico, Karen L. Reed,
Assistant Attorney General, Andrew M. Cuomo, Attorney
General, Attorney General’s Office of the State of New York,
Jacob Hollinger, Assistant Attorney General, Robert A. Reiley,
Assistant Counsel, Commonwealth of Pennsylvania, Department
of Environmental Protection, Patrick C. Lynch, Attorney
General, Attorney General’s Office of the State of Rhode Island,
Terence Tierney, Special Assistant Attorney General, William H.
Sorrell, Attorney General, Attorney General’s Office of the
State of Vermont, Kevin O. Leske, Assistant Attorney General,
J.B. Van Hollen, Attorney General, Attorney General’s Office
of the State of Wisconsin, Thomas J. Dawson, Assistant
Attorney General, and William R. Phelan, Jr., Attorney, for the
City of Baltimore, Maryland, were on the briefs for Government
Petitioners. Jean P. Reilly and Kevin P. Auerbacher, Assistant
Attorneys General, Attorney General’s Office of the State of
New Jersey, Peter H. Lehner, Assistant Attorney General,
Attorney General’s Office of the State of Connecticut,
Christopher D. Coppin, Assistant Attorney General, Attorney
4
General’s Office of the State of New Mexico, Gerald T. Karr,
Assistant Attorney General, Attorney General’s Office of the
State of Illinois, entered appearances.
Henry V. Nickel, F. William Brownell, David G. Scott, and
Lee B. Zeugin were on the briefs for petitioner Utility Air
Regulatory Group.
Eric G. Hostetler, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
John C. Cruden, Deputy Assistant Attorney General, Jon M.
Lipshultz and Matthew R. Oakes, Attorneys, and Carol S.
Holmes and Howard J. Hoffman, Counsel, U.S. Environmental
Protection Agency. Wendy L. Blake, Attorney, U.S.
Environmental Protection Agency, entered an appearance.
Lee B. Zeugin argued the cause for Industry State
Intervenors and State Amici Curiae. With him on the briefs
were Troy King, Attorney General, Attorney General’s Office of
the State of Alabama, Milt E. Belcher, Assistant Attorney
General, Wayne Stenehjem, Attorney General, Attorney
General’s Office of the State of North Dakota, Paul Seby,
Special Assistant, Lyle Witham, Solicitor General, Steve Carter,
Attorney General, Attorney General’s Office of the State of
Indiana, Thomas M. Fisher, Assistant Attorney General,
Lawrence E. Long, Attorney General, Attorney General’s Office
of the State of South Dakota, Roxanne Giedd, Deputy Attorney
General, Mark J. Rudolph, Senior Counsel, State of West
Virginia, Department of Environmental Protection, Peter H.
Wyckoff, Henri D. Bartholomot, Jon C. Bruning, Attorney
General, Attorney General’s Office of the State of Nebraska,
Jodi Fenner, Assistant Attorney General, Patrick Crank,
Attorney General, Attorney General’s Office of the State of
Wyoming, Nancy Vehr, Assistant Attorney General, Henry V.
Nickel, F. William Brownell, Lee B. Zeugin, William M.
5
Bumpers, Debra J. Jezouit, and Peter Glaser. Valerie M.
Tachtiris, Assistant Attorney General, Attorney General's Office
of State of Indiana, Jay A. Jerde and Vicci M. Colgan, Assistant
Attorneys General, Attorney General's Office of State of
Wyoming, Kevin C. Newsom, Harold P. Quinn, Jr., and Claudia
M. O'Brien entered appearances.
Leah W. Casey was on the brief for intervenor for petitioner
Adirondack Mountain Club.
Charles H. Knauss, Sandra P. Franco, and David G. Scott,
II were on the brief for intervenors Producers for Electric
Reliability and West Associates. Karma B. Brown entered an
appearance.
John T. Suttles, Jr. was on the brief for intervenors
Physicians for Social Responsibility, et al.
Peter Glaser, Daniel J. Popeo, and Paul D. Kamenar were
on the brief for amicus curiae Washington Legal Foundation in
support of respondent.
Before: ROGERS, TATEL and BROWN, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Before the court are petitions for
review of two final rules promulgated by the Environmental
Protection Agency regarding the emission of hazardous air
pollutants (“HAPs”) from electric utility steam generating units
(“EGUs”). The first rule removes coal- and oil-fired EGUs from
the list of sources whose emissions are regulated under
section 112 of the Clean Air Act (“CAA”), 42 U.S.C. § 7412.
Revision of December 2000 Regulatory Finding (“Delisting
Rule”), 70 Fed. Reg. 15,994 (Mar. 29, 2005). The second rule
6
sets performance standards pursuant to section 111, 42 U.S.C.
§ 7411, for new coal-fired EGUs and establishes total mercury
emissions limits for States and certain tribal areas, along with a
voluntary cap-and-trade program for new and existing coal-fired
EGUs. Standards of Performance for New and Existing
Stationary Sources: Electric Utility Steam Generating Units
(“CAMR”), 70 Fed. Reg. 28,606 (May 18, 2005).
Petitioners contend that the Delisting Rule is contrary to the
plain text and structure of section 112. In response, EPA and
certain intervenors rely on section 112(n), which sets special
conditions before EGUs can be regulated under section 112, to
justify the rule. We hold that the delisting was unlawful.
Section 112 requires EPA to regulate emissions of HAPs.
Section 112(n) requires EPA to regulate EGUs under section
112 when it concludes that doing so is “appropriate and
necessary.” In December 2000, EPA concluded that it was
“appropriate and necessary” to regulate mercury emissions from
coal- and oil-fired power plants under section 112 and listed
these EGUs as sources of HAPs regulated under that section. In
2005, after reconsidering its previous determination, EPA
purported to remove these EGUs from the section 112 list.
Thereafter it promulgated CAMR under section 111. EPA’s
removal of these EGUs from the section 112 list violates the
CAA because section 112(c)(9) requires EPA to make specific
findings before removing a source listed under section 112; EPA
concedes it never made such findings. Because coal-fired EGUs
are listed sources under section 112, regulation of existing coal-
fired EGUs’ mercury emissions under section 111 is prohibited,
effectively invalidating CAMR’s regulatory approach.
Accordingly, the court grants the petitions and vacates both
rules.
7
I.
In 1970, Congress added section 112 to the CAA. Pub. L.
No. 91-604, § 4(a), 84 Stat. 1676, 1685 (1970). In its original
form, section 112 required EPA to list HAPs that should be
regulated because they could “cause, or contribute to, an
increase in mortality or an increase in serious irreversible[] or
incapacitating reversible[] illness.” Id. § 112(a)(1). Over the
next eighteen years, however, EPA listed only eight HAPs,
established standards for only seven of these and as to these
seven addressed only a limited selection of possible pollution
sources. See Nat’l Mining Ass’n v. EPA, 59 F.3d 1351, 1353 n.1
(D.C. Cir. 1995); S. COMM. ON ENV’T & PUB. WORKS, CLEAN
AIR ACT AMENDMENTS OF 1989, S. REP. NO. 101-228, at 131
(1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3516.
In 1990, Congress, concerned about the slow pace of EPA’s
regulation of HAPs, altered section 112 by eliminating much of
EPA’s discretion in the process. See, e.g., Nat’l Lime Ass’n. v.
EPA, 233 F.3d 625, 633-34 (D.C. Cir. 2000). Three aspects of
the amendments are relevant here.
First, Congress required EPA to regulate more than one
hundred specific HAPs, including mercury and nickel
compounds. CAA § 112(b)(1). Further, EPA was required to
list and to regulate, on a prioritized schedule, id. § 112(e)(1)-(3),
“all categories and subcategories of major sources and areas
sources” that emit one or more HAPs, id. § 112(c)(1). In
seeking to ensure that regulation of HAPs reflects the
“maximum reduction in emissions which can be achieved by
application of [the] best available control technology,” S. REP.
NO. 101-228, at 133, reprinted in 1990 U.S.C.C.A.N. at 3518;
see, e.g., CAA § 112(g)(2)(A), Congress imposed specific,
strict pollution control requirements on both new and existing
sources of HAPs. Congress specified that new sources must
8
adopt at minimum “the emission control that is achieved in
practice by the best controlled similar source, as determined by
the Administrator.” Id. § 112(d)(3). Existing sources (with
certain exceptions) must adopt emission controls equal to the
“average emission limitation achieved by the best performing 12
percent of the existing sources.” Id. § 112(d)(3)(A).
Second, Congress restricted the opportunities for EPA and
others to intervene in the regulation of HAP sources. For HAPs
that result in health effects other than cancer, as is true of
mercury, Congress directed that the Administrator “may delete
any source category” from the section 112(c)(1) list only after
determining that “emissions from no source in the category or
subcategory concerned . . . exceed a level which is adequate to
protect public health with an ample margin of safety and no
adverse environmental effect will result from emissions from
any source.” Id. § 112(c)(9). Third parties may not challenge
the Administrator’s decision to add a pollutant to the list under
section 112(b) or a source category or subcategory to the list
under section 112(c) until “the Administrator issues emission
standards for such pollutant or category.” Id. § 112(e)(4).
Third, Congress required the Administrator to evaluate
regulatory options with care and to meet certain conditions
before listing EGUs as an HAP source under section 112(c)(1).
Specifically:
[t]he Administrator shall perform a study of the
hazards to public health reasonably anticipated to occur
as a result of emissions by [EGUs] of pollutants listed
under subsection (b) of this section after imposition of
the requirements of this chapter. The Administrator
shall report the results of this study to the Congress
within 3 years after November 15, 1990. The
Administrator shall develop and describe in the
9
Administrator’s report to Congress alternative control
strategies for emissions which may warrant regulation
under this section. The Administrator shall regulate
[EGUs] under this section, if the Administrator finds
such regulation is appropriate and necessary after
considering the results of the study required by this
subparagraph.
Id. § 112(n)(1)(A) (emphasis added).
The study of public health hazards required by section
112(n)(1)(A) was finally completed in 1998. This study found
“a plausible link between anthropogenic releases of mercury
from industrial and combustion sources in the United States and
methylmercury in fish” and that “mercury emissions from
[EGUs] may add to the existing environmental burden.” EPA,
OFFICE OF AIR QUALITY PLANNING AND STANDARDS, STUDY OF
HAZARDOUS AIR POLLUTANT EMISSIONS FROM ELEC. UTIL.
STEAM GENERATING UNITS--FINAL REPORT TO CONG. 7-1, 45
(1998). On December 20, 2000, the Administrator announced
— in light of the study mandated by section 112(n)(1)(A), as
well as subsequent information and consideration of alternative
feasible control strategies — that it was “appropriate and
necessary” to regulate coal- and oil-fired EGUs under
section 112 because, as relevant, mercury emissions from EGUs,
which are the largest domestic source of mercury emissions,
present significant hazards to public health and the environment.
Regulatory Finding on the Emissions of Hazardous Air
Pollutants From Electric Utility Steam Generating Units, 65
Fed. Reg. 79,825, 79,827 (Dec. 20, 2000) (“2000
Determination”). “As a result the source category for Coal- and
Oil-Fired [EGUs] was added to the list of source categories
under section 112(c)” on December 20, 2000. National
Emission Standards for Hazardous Air Pollutants: Revision of
Source Category List Under Section 112 of the Clean Air Act
10
(“2002 Notice of Listing”), 67 Fed. Reg. 6521, 6522, 6524 (Feb.
12, 2002).
In early 2004, EPA proposed two regulatory alternatives to
control emissions from coal- and oil-fired EGUs. The first was
similar to EPA’s proposal in 2000 — regulation under section
112 through issuance of Maximum Achievable Control
Technology standards, see, e.g., CAA § 112(g)(2)(A), or
implementation of a cap-and-trade system. The second
proposed removing EGUs from the list of HAP sources prepared
pursuant to section 112(c)(1) and instead regulating their
emissions under section 111.1 Proposed National Emission
Standards for Hazardous Air Pollutants; and, in the Alternative,
Proposed Standards of Performance for New and Existing
Stationary Sources: Electric Utility Steam Generating Units, 69
Fed. Reg. 4652, 4659-61, 4683, 4689 (Jan. 30, 2004). After
receiving public comment, EPA chose the second alternative,
announcing in March 2005 that it was removing EGUs from the
section 112(c)(1) list, Delisting Rule, 70 Fed. Reg. at 16,002-08,
16,032, and regulating mercury emissions from coal-fired EGUs
under section 111, CAMR, 70 Fed. Reg. at 28,610, 28,624-32.
1
Section 111 requires the Administrator to “establish[] . . .
standards of performance,” CAA § 111(b)(1)(B), for pollutants from
new sources that in the Administrator’s judgment “cause[], or
contribute[] significantly to, air pollution which may reasonably be
anticipated to endanger public health or welfare.” Id. § 111(b)(1)(A).
“Standards of performance” are designed to limit emissions to reflect
“the degree of emission limitation achievable through the application
of the best system of emission reduction which (taking into account
the cost of achieving such reduction and any nonair quality health and
environmental impact and energy requirements) the Administrator
determines has been adequately demonstrated.” Id. § 111(a)(1).
Existing sources of pollutants are regulated under section 111(d).
11
EPA justified its decision to delist EGUs by explaining that
it “reasonably interprets section 112(n)(1)(A) as providing []
authority to remove coal- and oil-fired units from the section
112(c) list at any time that it makes a negative appropriate and
necessary finding under the section.” Delisting Rule, 70 Fed.
Reg. at 16,032. It based this interpretation on the “entirely
different structure and predicate for assessing whether [EGUs]
should be listed for regulation under section 112” as set forth in
section 112(n)(1)(A), id., and on the absence of a temporal
“deadline” for deciding “whether regulation of [EGUs was]
appropriate and necessary” under section 112, id. at 16,001. It
also interpreted “section 112(c)(9) [delisting] criteria . . . not [to]
apply” to EGUs because their inclusion in the list established by
section 112(c)(1) was not a “final agency action[],” and claimed,
contrary to the 2000 Determination, that “the source category at
issue did not meet the statutory criteria for listing at the time of
listing.” Id. at 16,033.
Having decided that it possessed the authority to delist
EGUs without making the findings required by
section 112(c)(9), EPA explained that the delisting of EGUs was
justified because their regulation under section 112 was neither
“appropriate” nor “necessary.” The potential mercury emissions
reductions achievable under CAMR figured prominently in
EPA’s explanation of its delisting of coal-fired EGUs, id. at
16,005, which EPA promulgated in May 2005. CAMR
established plant-specific “standards of performance” for
mercury emissions from new coal-fired EGUs under
section 111(b). 70 Fed. Reg. at 28,613-16. Relying on sections
111(b) and (d), it also established a national mercury emissions
cap for new and existing EGUs, allocating each state and certain
tribal areas a mercury emissions budget. This was supplemented
by a voluntary cap-and-trade program. Id. at 28,616, 28,622,
12
28,629.2
II.
New Jersey and fourteen additional States, the Michigan
Department of Environmental Quality, the Pennsylvania
Department of Environmental Protection, the City of Baltimore
(“Government Petitioners”), and various environmental
organizations (“Environmental Petitioners”) contend that EPA
violated Section 112’s plain text and structure when it did not
comply with the requirements of section 112(c)(9) in delisting
EGUs. Because we agree, we do not reach their alternative
contention that even if this delisting was lawful, EPA was
arbitrary and capricious in reversing its determination that
regulating EGUs under section 112 was “appropriate and
necessary.” Government and Environmental Petitioners further
contend that CAMR is inconsistent with provisions of
section 111, and that both the Delisting Rule and CAMR should
be vacated. Certain intervenors — including various industry
representatives, States, and state agencies — join EPA in urging
the lawfulness of the two rules.
The court reviews the challenges to the final rules to
determine whether EPA’s promulgation of them was arbitrary
or capricious, an abuse of discretion, or otherwise not in
2
Upon reconsideration, EPA made no substantive change to
the Delisting Rule but revised CAMR’s State mercury allocations and
the statistical analysis used for new source performance standards;
EPA declined to stay CAMR. Revision of December 2000 Clean Air
Act Section 112(n) Finding Regarding Electric Utility Steam
Generating Units; and Standards of Performance for New and
Existing Electric Utility Steam Generating Units: Reconsideration, 71
Fed. Reg. 33,388, 33,388-89, 33,395-96 (June 9, 2006).
13
accordance with law. See CAA § 307(d)(9)(A), 42 U.S.C.
§ 7607(d)(9)(A). Challenges to EPA’s interpretation of the
CAA itself are governed by the familiar two-pronged test of
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Under step one, the court asks
“whether Congress has directly spoken to the . . . issue.” Id. at
842. If Congress’s intent “is clear, 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.
However, if the court determines that “Congress has not directly
addressed the precise question at issue,” then, under step two,
“the question for the court is whether the agency’s answer is
based on a permissible construction of the statute.” Id. at 843.
The agency’s interpretation need not be the only permissible
reading of the statute, nor the interpretation that the court might
have originally given the statute. Id. at 843 n.11.
Petitioners contend that once the Administrator determined
in 2000 that EGUs should be regulated under Section 112 and
listed them under section 112(c)(1), EPA had no authority to
delist them without taking the steps required under
section 112(c)(9). We agree.3
Section 112(c)(9) provides that:
3
Certain intervenors also contend, citing Thomas v. New
York, 802 F.2d 1443, 1446-47 (D.C. Cir. 1986), that the
Administrator’s determination in December 2000 to list EGUs as a
source under section 112(c)(1) was not binding for lack of notice and
comment and, consequently, that EPA was never required to comply
with section 112(c)(9)’s delisting process for EGUs. We need not
consider this contention, however, because EPA has steadfastly
refused to join it. See New York v. Reilly, 969 F.2d 1147, 1154 n.11
(D.C. Cir. 1992); see also Util. Air Regulatory Group v. EPA, No. 01-
1074, 2001 WL 936363, at *1 (D.C. Cir. July 26, 2001).
14
The Administrator may delete any source category
from the [section 112(c)(1) list] . . . whenever the
Administrator . . . [determines] that emissions from no
source in the category or subcategory concerned . . .
exceed a level which is adequate to protect public
health with an ample margin of safety and no adverse
environmental effect will result from emissions from
any source. [emphasis added]
EPA concedes that it listed EGUs under section 112. Thus,
because section 112(c)(9) governs the removal of “any source
category” (emphasis added) from the section 112(c)(1) list, and
nothing in the CAA exempts EGUs from section 112(c)(9), the
only way EPA could remove EGUs from the section 112(c)(1)
list was by satisfying section 112(c)(9)’s requirements. Yet
EPA concedes that it never made the findings section 112(c)(9)
would require in order to delist EGUs. EPA’s purported
removal of EGUs from the section 112(c)(1) list therefore
violated the CAA’s plain text and must be rejected under step
one of Chevron.
EPA offers several arguments in an attempt to evade section
112(c)(9)’s plain text, but they are not persuasive. First, EPA
seeks to reach step two of Chevron and obtain judicial deference
to its interpretation by maintaining that section 112(n)(1) makes
section 112(c)(9) ambiguous because “[l]ogically, if EPA makes
a determination under section 112(n)(1)(A) that power plants
should not be regulated at all under section 112 . . . [then] this
determination ipso facto must result in removal of power plants
from the section 112(c) list.” Resp’t Br. at 26. But this simply
does not follow. Section 112(n)(1) governs how the
Administrator decides whether to list EGUs; it says nothing
about delisting EGUs, and the plain text of section 112(c)(9)
specifies that it applies to the delisting of “any source.” In the
context of the CAA, “the word ‘any’ has an expansive
15
meaning.” New York v. EPA, 443 F.3d 880, 885 (D.C. Cir.
2006) (citations omitted); see also id. at 885-86. Moreover,
where Congress wished to exempt EGUs from specific
requirements of section 112, it said so explicitly. For example,
section 112(c)(6) expressly exempts EGUs from the strict
deadlines imposed on other sources of certain pollutants.
Furthermore, EPA concedes that listing EGUs under section
112(c) triggered application of some subparts of section 112,
see, e.g., 2002 Notice of Listing, 67 Fed. Reg. at 6521, 6524,
6535 n.b; CAA § 112(c)(2), but provides no persuasive
rationale for why the comprehensive delisting process of section
112(c)(9) does not also apply. Its brief states only that previous
applications of section 112 provisions in response to EGUs’
listing were undertaken “based on the fact that [EPA] had made
a positive ‘appropriate and necessary’ finding that was still in
place. EPA has now reversed that finding.” Resp’t Br. at 28.
This explanation deploys the logic of the Queen of Hearts,
substituting EPA’s desires for the plain text of section 112(c)(9).
Thus, EPA can point to no persuasive evidence suggesting that
section 112(c)(9)’s plain text is ambiguous. It is therefore
bound by section 112(c)(9) because “for [] EPA to avoid a literal
interpretation at Chevron step one, it must show either that, as
a matter of historical fact, Congress did not mean what it
appears to have said, or that, as a matter of logic and statutory
structure, it almost surely could not have meant it,” Engine Mfrs.
Ass’n v. EPA, 88 F.3d 1075, 1089 (D.C. Cir. 1996), showings
EPA has failed to make.
Second, EPA maintains that it possesses authority to
remove EGUs from the section 112 list under the “fundamental
principle of administrative law that an agency has inherent
authority to reverse an earlier administrative determination or
ruling where an agency has a principled basis for doing so.”
Resp’t Br. at 22 (citing Williams Gas Processing-Gulf Coast Co.
v. FERC, 475 F.3d 319, 326 (D.C. Cir. 2006); Dun & Bradstreet
16
Corp. Found. v. USPS, 946 F.2d 189, 193 (2d Cir. 1991)). An
agency can normally change its position and reverse a decision,
and prior to EPA’s listing of EGUs under section 112(c)(1),
nothing in the CAA would have prevented it from reversing its
determination about whether it was “appropriate and necessary”
to do so. Congress, however, undoubtedly can limit an agency’s
discretion to reverse itself, and in section 112(c)(9) Congress did
just that, unambiguously limiting EPA’s discretion to remove
sources, including EGUs, from the section 112(c)(1) list once
they have been added to it. This precludes EPA’s inherent
authority claim for “EPA may not construe [a] statute in a way
that completely nullifies textually applicable provisions meant
to limit its discretion.” Whitman v. Am. Trucking Ass’ns, 531
U.S. 457, 485 (2001). As this court has observed, “when
Congress has provided a mechanism capable of rectifying
mistaken actions . . . it is not reasonable to infer authority to
reconsider agency action.” Am. Methyl Corp. v. EPA, 749 F.2d
826, 835 (D.C. Cir. 1984). Indeed, EPA’s position would
nullify section 112(c)(9) altogether, not just with regard to
EGUs, for EPA is unable to explain how, if it were allowed to
remove EGUs from the section 112 list without regard to section
112(c)(9), it would not also have the authority to remove any
other source by ignoring the statutory delisting process.
Finally, EPA states in its brief that it has previously
removed sources listed under section 112(c) without satisfying
the requirements of section 112(c)(9). But previous statutory
violations cannot excuse the one now before the court. “[W]e
do not see how merely applying an unreasonable statutory
interpretation for several years can transform it into a reasonable
interpretation.” F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 598
(D.C. Cir. 1996). EPA suggests that it would be “anomalous”
for it to be forced to await a court order to correct “its own
mistake” in listing coal- and oil-fired EGUs as a source under
section 112(c)(1). Resp’t Br. at 32; see also id. at 33 (citing
17
Cleveland Nat’l Air Show, Inc. v. DOT, 430 F.3d 757, 765 (6th
Cir. 2005)). However Congress was not preoccupied with what
EPA considers “anomalous,” but rather with the fact that EPA
had failed for decades to regulate HAPs sufficiently. See, e.g.,
Nat’l Lime Ass’n, 233 F.3d at 634 (citing S. REP. NO. 101-228,
at 128, reprinted in 1990 U.S.C.C.A.N. at 3513). In the context
of this congressional concern, EPA’s disbelief that it would be
prevented from correcting its own listing “errors” except
through section 112(c)(9)’s delisting process or court-sanctioned
vacatur cannot overcome the plain text enacted by Congress.
Accordingly, in view of the plain text and structure of
section 112, we grant the petitions and vacate the Delisting Rule.
See Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988
F.2d 146, 150-51 (D.C. Cir. 1993). This requires vacation of
CAMR’s regulations for both new and existing EGUs. EPA
promulgated the CAMR regulations for existing EGUs under
section 111(d), but under EPA’s own interpretation of the
section, it cannot be used to regulate sources listed under section
112; EPA thus concedes that if EGUs remain listed under
section 112, as we hold, then the CAMR regulations for existing
sources must fall. Resp’t Br. at 99, 101-02; see also Delisting
Rule, 70 Fed. Reg. at 16,031. EPA promulgated the CAMR
regulations for new sources under section 111(b) on the basis
that there would be no section 112 regulation of EGU emissions
and that the new source performance standards would be
accompanied by a national emissions cap and a voluntary cap-
and-trade program. See CAMR, 70 Fed. Reg. at 28,608-10,
28,614-15, 28,619, 28,622; see also id. at 28,616. Given that
these vital assumptions were incorrect, the court must vacate
CAMR’s new source performance standards and remand them
to EPA for reconsideration, for “[s]everance and affirmance of
a portion of an administrative regulation is improper if there is
‘substantial doubt’ that the agency would have adopted the
severed portion on its own.” Davis County Solid Waste Mgmt.
18
v. EPA, 108 F.3d 1454, 1459 (D.C. Cir. 1997) (citations
omitted). In view of our disposition, the court does not reach
other contentions of petitioners or intervenors.