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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2009 Decided November 24, 2009
No. 08-1225
STATE OF NORTH CAROLINA,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
ENVIRONMENTAL PROTECTION DIVISION,
DEPARTMENT OF NATURAL RESOURCES, STATE OF GEORGIA
AND GEORGIA COALITION FOR
SOUND ENVIRONMENTAL POLICY, INC.,
INTERVENORS
On Petition for Review of a Final Action
of the Environmental Protection Agency
Marc D. Bernstein, Special Deputy Attorney General, North
Carolina Department of Justice, argued the cause for petitioner.
With him on the briefs were Roy Cooper, Attorney General, and
2
James C. Gulick, Senior Deputy Attorney General, and Allen
Jernigan, Special Deputy Attorney General.
Perry M. Rosen, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
John C. Cruden, Acting Assistant Attorney General, and Sonja
Rodman, Counsel, U.S. Environmental Protection Agency.
David S. Gualtieri, Attorney, U.S. Department of Justice,
entered an appearance.
Margaret Claiborne Campbell argued the cause for
intervenor Georgia Coalition for Sound Environmental Policy,
Inc. in support of respondent. With her on the brief was Byron
W. Kirkpatrick.
Thurbert E. Baker, Attorney General, and John E. Hennelly
and Diane L. DeShazo, Senior Assistant Attorneys General,
were on the brief for intervenor Georgia Environmental
Protection Division, Department of Natural Resources, State of
Georgia.
Before: ROGERS, GARLAND and GRIFFITH, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The State of North Carolina
petitions for review of the final rule of the Environmental
Protection Agency removing the northern part of the State of
Georgia from EPA’s regulations under its national ambient air
quality standard (“NAAQS”) for ozone measured during a one-
hour period. See Petition for Reconsideration and Withdrawal of
Findings of Significant Contribution and Rulemaking for
Georgia for Purposes of Reducing Ozone Interstate Transport,
73 Fed. Reg. 21,528 (Apr. 22, 2008) (“Withdrawal Rule”). In
1998 EPA called upon several states to revise their state
3
implementation plans (“SIPs”) for attaining the NAAQS for
ozone by reducing emissions of oxides of nitrogen (“NOx”), a
precursor of ozone. See Finding of Significant Contribution and
Rulemaking for Certain States in the Ozone Transport
Assessment Group Region for the Purposes of Reducing
Regional Transport of Ozone, 63 Fed. Reg. 57,356 (Oct. 27,
1998) (“NOx SIP Call”). Following the remand in Michigan v.
EPA, 213 F.3d 663 (D.C. Cir. 2000), cert. denied, 532 U.S. 904
(2001), EPA promulgated a rule that included only the northern
portion of Geogia in the NOx SIP Call under the one-hour ozone
standard. See Interstate Ozone Transport: Response to Court
Decisions on the NOx SIP Call, NOx SIP Call Technical
Amendments, and Section 126 Rules, 69 Fed. Reg. 21,604 (Apr.
21, 2004) (“Remand Rule”). Georgia’s inclusion was based on
EPA’s findings in the NOx SIP Call that emissions from Georgia
were significantly contributing to non-attainment of the one-
hour ozone NAAQS in Birmingham, Alabama and Memphis,
Tennessee. See Withdrawal Rule, 73 Fed. Reg. at 21,530.
Upon the petition of an industry coalition, an intervenor
here, EPA reconsidered its inclusion of Georgia in light of its
determinations that recently Birmingham, and earlier Memphis,
had attained the one-hour ozone standard. See id. North
Carolina now challenges the Withdrawal Rule as contrary to
EPA policy requiring states’ adherence to NOx emissions
budgets based on the one-hour ozone standard after the repeal of
the one-hour standard, as nonconformance with the mandate in
Michigan v. EPA, and as disparate treatment of Georgia without
lawful justification. We do not reach the merits of these
contentions because we conclude that North Carolina lacks
standing, specifically that North Carolina failed to show
redressability.
4
I.
Nitrogen oxides (NOx) emitted into the air react to form
ozone (O3), a pollutant with harmful health and environmental
effects. Ozone is an interstate issue because NOx emissions and
ozone cross into downwind states. See NOx SIP Call, 63 Fed.
Reg. at 57,359. In 1979, EPA established the NAAQS for ozone
at 0.120 ppm (parts per million) measured over a one-hour
period (“the one-hour standard”). Michigan v. EPA, 213 F.3d at
670. In 1997, EPA lowered the ozone NAAQS to 0.08 ppm
measured over an eight-hour period (“the eight-hour standard”),
id., but this standard was stayed in 2000 and was not before the
court in Michigan v. EPA, id. at 671. In 2004, EPA transitioned
from the one-hour standard to the eight-hour standard.1 In 2008,
EPA lowered the eight-hour ozone NAAQS to 0.075 ppm.
Meanwhile, in 1998, EPA called for revisions to the SIPs of
several upwind states (the “NOx SIP Call”). EPA found that
NOx emissions in Georgia significantly contributed (1) to
nonattainment of the one-hour ozone standard in Birmingham
and Memphis, and (2) to nonattainment of the eight-hour ozone
standard in North Carolina. EPA’s 2000 stay of the eight-hour
standard “remove[d] the 8-hour findings as a basis for the SIP
call.” Michigan v. EPA, 213 F.3d at 671.
1
In 2005, EPA also began regulating NOx emissions using
the eight-hour ozone standard under the Clean Air Interstate Rule
(“CAIR”). See Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOx SIP Call, 70 Fed. Reg.
25,162 (May 12, 2005); see also North Carolina v. EPA, 531 F.3d 896
(D.C. Cir. 2008), remanded without vacatur, 550 F.3d 1176 (D.C. Cir.
2008).
5
On petition for review of the NOx SIP Call, the court held
in Michigan v. EPA that “the record does not support . . .
creating NOx [emissions] budgets based on the entire emissions
of Missouri or Georgia,” because only the “fine grid” modeling
used for northern Georgia and eastern Missouri, and not the
“coarse grid” modeling used for other parts of those states,
showed emissions contributing to downwind pollution.
Michigan v. EPA, 213 F.3d at 669, 683. On remand, EPA
revised the NOx SIP Call by calculating NOx emissions budgets
based only on areas of Georgia and Missouri whose emissions
had been modeled for the NOx SIP Call with the fine-grid
technique. See Remand Rule, 69 Fed. Reg. at 21,624. The
Remand Rule was published April 21, 2004, with an effective
date of June 21, 2004. However, EPA had found, effective April
12, 2004, that Birmingham (and earlier, Memphis) had attained
the one-hour ozone standard. In response to a petition from
intervenor Georgia Coalition for Sound Environmental Policy (a
group of businesses and companies, hereinafter “industry”),
EPA stayed the Remand Rule with respect to Georgia during the
notice and comment proceedings for industry’s petition to
reconsider Georgia’s inclusion in the NOx SIP Call, in light of
EPA’s Birmingham and Memphis findings. In 2008, EPA
finalized the Withdrawal Rule, removing Georgia from the one-
hour NOx SIP Call.
In petitioning for review, North Carolina claims that NOx
emissions from electric generating units (“EGUs”) in northern
Georgia are significantly contributing to North Carolina’s
inability to attain the NAAQS under the eight-hour standard due
to Georgia’s non-inclusion in the one-hour NOx SIP Call, and
that North Carolina’s injury can be remedied by vacating the
Withdrawal Rule in part. Specifically, North Carolina seeks
partial vacatur of the Withdrawal Rule, reinstatement of the
prior 40 C.F.R. § 51.121 regulations and removal of the stay of
the regulations with respect to Georgia under subparagraph (s)
6
of section 51.121, and instructions on Georgia’s deadline for
submitting a compliant SIP. On the merits, North Carolina
challenges the Withdrawal Rule on three grounds: EPA’s
noncompliance with a policy requiring states to adhere to
emission budgets set under the one-hour standard after that
standard was abolished; EPA’s noncompliance with the mandate
in Michigan v. EPA, specifically by relying on new data in
promulgating the Withdrawal Rule; and EPA’s disparate
treatment of Georgia as compared to Missouri and other states
in the original NOx SIP Call. Industry, however, challenges
North Carolina’s standing under Article III of the United States
Constitution, maintaining that EPA correctly stated during the
rulemaking that Georgia may already be meeting the
requirements of the one-hour NOx SIP Call, see Withdrawal
Rule, 73 Fed. Reg. at 21,534, and that consequently North
Carolina cannot show redressability. We turn to that threshold
question.
II.
In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the
Supreme Court described the Article III injury, causation, and
redressability requirements for standing:
First, the plaintiff must have suffered an “injury in
fact”—an invasion of a legally protected interest which
is (a) concrete and particularized, and (b) “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’”
Second, there must be a causal connection between the
injury and the conduct complained of—the injury has
to be “fairly . . . trace[able] to the challenged action of
the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the
court.” Third, it must be “likely,” as opposed to
7
merely “speculative,” that the injury will be “redressed
by a favorable decision.”
Id. at 560-61 (alterations in Lujan; citations and footnote
omitted). “When the suit is one challenging the legality of
government action or inaction,” and “a plaintiff’s asserted injury
arises from the government’s allegedly unlawful regulation (or
lack of regulation) of someone else” and “the plaintiff is not
himself the object of the government action or inaction he
challenges,” then “standing is not precluded, but it is ordinarily
substantially more difficult to establish.” Id. at 562 (emphasis
and quotation marks omitted).
North Carolina’s situation is similar in many respects to that
of Massachusetts in Massachusetts v. EPA, 549 U.S. 497 (2000).
There the Supreme Court held that Massachusetts had standing
to challenge EPA’s failure to regulate certain air pollutants,
because Massachusetts has “quasi-sovereign interests” in
reducing air pollution and a procedural right to challenge EPA
under 42 U.S.C. § 7607(b)(1). Massachusetts v. EPA, 549 U.S.
at 519-21. Like Massachusetts, North Carolina is a state
challenging EPA’s rule pursuant to 42 U.S.C. § 7607(b)(1) in
order to reduce its air pollution, which entitles North Carolina to
“special solicitude in our standing analysis.” Massachusetts v.
EPA, 549 U.S. at 520. In addition, “[w]hen a litigant is vested
with a procedural right, that litigant has standing if there is some
possibility that the requested relief will prompt the
injury-causing party to reconsider the decision that allegedly
harmed the litigant.” Id. at 518.
North Carolina contends that because EPA has recognized
ozone as a harmful pollutant (injury), and because EPA
recognized in 1998 that ozone from Georgia contributed to
North Carolina’s non-attainment of the 1997 eight-hour ozone
standard (causation), and because re-including northern Georgia
8
in the NOx SIP Call would likely reduce Georgia’s emissions
(redressability), it has established standing. Nonetheless North
Carolina acknowledged during oral argument that
notwithstanding any “special solicitude” to which it may be
entitled as a sovereign state, it must demonstrate Article III
standing. We conclude the redressability requirement is not
satisfied.
North Carolina contends that it has standing because it is
having difficulty meeting federal eight-hour ozone standards due
to emissions from Georgia. With its opening brief, see Sierra
Club v. EPA, 292 F.3d 895, 900-01 (D.C. Cir. 2002), North
Carolina submitted an affidavit in support of its standing from
the Deputy Director of the Division of Air Quality of the North
Carolina Department of Environment and Natural Resources,
Sheila Holman. The Holman Affidavit states that North
Carolina has areas located close to Georgia that are not attaining
the 1997 eight-hour ozone standard, and concludes that NOx
emissions from northern Georgia impact ozone levels in North
Carolina, based in part on an attached report by Dr. Saravanan
Arunachalam that concluded Georgia’s emissions likely
contributed significantly to North Carolina’s non-attainment in
2005. North Carolina also points out that EPA has recognized
that an area’s proximity to an emissions source contributes to the
effects from that source. See Remand Rule, 69 Fed. Reg. at
21,625. North Carolina contends that the Holman Affidavit and
the Arunachalam Report establish North Carolina’s injury and
show that Georgia partially causes this injury. Re-including
northern Georgia in the NOx SIP Call, North Carolina concludes,
would reduce Georgia’s contributions to North Carolina’s
ozone, and thus redress North Carolina’s injury by helping it
meet its federal 1997 and 2008 eight-hour ozone standard
obligations, as well as improve its overall air quality.
9
In challenging North Carolina’s standing, industry’s
objections regarding injury and causation are not well taken.
Industry’s preliminary contention that North Carolina lacks
standing because it discussed its injury2 in terms of the stayed
1997 and new 2008 eight-hour ozone standards, rather than the
NOx SIP Call’s one-hour ozone standard, is unpersuasive. As
North Carolina responds, ozone is ozone no matter how it is
measured, and if re-including Georgia in the NOx SIP Call
reduces ozone under the one-hour standard, it would presumably
reduce ozone under the eight-hour standard as well.
Likewise, industry’s position that the Withdrawal Rule
could not cause North Carolina injury is unpersuasive. Industry
suggests that North Carolina has alleged injuries only from
Georgia, rather than from EPA’s Withdrawal Rule, and that
under Center for Biological Diversity v. U.S. Department of the
Interior, 563 F.3d 466, 478 (D.C. Cir. 2009), North Carolina has
failed to show that its injury results from actions of EPA, rather
than the discretionary actions of a third party. But North
Carolina, like the state in Massachusetts v. EPA, has standing to
challenge EPA’s failure to regulate a third party because that
failure assertedly causes injury, see also South Coast Air Quality
Management District v. EPA, 472 F.3d 882, 895-96 (D.C. Cir.
2006), and Georgia is not an absent third party because it would
not have discretion not to meet the NOx SIP Call if it were
subject to the NOx SIP Call.
To the extent industry emphasizes that North Carolina’s
standing burden is heavier both because it is not the object of
EPA’s Withdrawal Rule, and because no interstate NOx
2
In response to industry’s assertion that the reference in the
Holman Affidavit to “a cap” is not specific enough to allege injury,
North Carolina provided a rebuttal affidavit clarifying that the cap in
the affidavit was the cap from the NOx SIP Call.
10
emissions are keeping North Carolina from meeting the one-
hour ozone standard that was the basis of the NOx SIP Call,
North Carolina persuasively maintains it should not be more
difficult for it to establish standing, because its injury, causation,
and redressability are more clear than in Center for Biological
Diversity, in which this court stated a party could not establish
standing where causation was based on “speculation” about the
discretionary future acts of various entities, 563 F.3d at 479.
Rather, what is ultimately dispositive is the showing in
submissions by intervenor Georgia Environmental Protection
Division (“the Division”) that reinstating the NOx SIP Call for
Georgia is not likely to redress North Carolina’s injuries.
Preliminarily we note that certain of intervenors’
contentions miss the mark. Industry contends that because
North Carolina has attained the one-hour ozone standard in the
NOx SIP Call, re-including Georgia in the NOx SIP Call will not
redress North Carolina’s injury, but industry and North Carolina
appear to be defining “injury” differently: industry contends that
the NOx SIP Call involves injuries only from not meeting the
one-hour ozone standard, whereas North Carolina contends that
any reduction in NOx emissions due to the NOx SIP Call would
also help North Carolina meet the eight-hour ozone standards.
Industry and the Division next contend that re-including Georgia
in the NOx SIP Call would actually increase emissions by
creating excess emission allowances that others could buy to
increase their emissions. However, North Carolina responds
that Georgia need not opt into the allowance program.
North Carolina’s ability to show redressability hinges on
showing that including northern Georgia in the NOx SIP Call
would result in reducing emissions from Georgia that
significantly contribute to North Carolina’s inability to reach
attainment under the 1997 NAAQS standard. If lower emissions
would result from Georgia’s inclusion, then the Withdrawal
11
Rule is the cause of North Carolina’s injury and its injury is
redressable by vacating the rule in part with instructions. In
reply to intervenors’ statements that Georgia’s recent NOx
emissions have been below the NOx emissions cap that would
have applied to Georgia under the Remand Rule, North Carolina
provides a rebuttal affidavit from Sheila Holman listing
Georgia’s EGU NOx emission levels in 2007 and 2008, which
North Carolina concludes exceeded the Remand Rule’s NOx
emissions cap. Based on the emissions data in North Carolina’s
reply brief, it reasonably concludes that Georgia’s emissions
have exceeded the limits of the NOx SIP Call, and perhaps as
well that Georgia’s own rules limiting emissions would have a
lesser effect on emissions than the NOx SIP Call would.
However, intervenors challenge North Carolina’s showing of
emission levels. To assist the court in determining whether it
has jurisdiction, it permitted the Division to file a supplemental
reply on standing, most particularly as it concerns redressability.
See, e.g., Am. Library Ass’n v. FCC, 401 F.3d 489, 494 (D.C.
Cir. 2005).
The Division’s sur-reply provides an analysis suggesting
that North Carolina’s Holman Rebuttal Affidavit reports
emissions from the entire state of Georgia rather than only from
the northern two-thirds of Georgia that would have been subject
to the NOx SIP Call after the remand in Michigan v. EPA. The
Division attaches to its sur-reply an affidavit from the Chief of
the Georgia Air Protection Branch of the Georgia Environmental
Protection Division, James A. Capp, stating that Georgia’s
EGUs, in the portion of Georgia that would have been subject to
the Remand Rule of the NOx SIP Call, emitted 31,804 tons of
NOx in 2007 and 31,057 tons in 2008. The Capp Affidavit also
states that Georgia’s NOx emissions budget under the Remand
Rule would have been 29,416 tons. Thus, as industry conceded
at oral argument, Georgia’s 2007 and 2008 NOx emissions
would have exceeded the Remand Rule’s cap if Georgia would
12
not have been able to use allowances or credits to increase its
cap.
However, the Division’s sur-reply also provides an analysis
indicating that Georgia would have met the Remand Rule’s NOx
emissions cap through the use of EPA’s compliance supplement
pool (“CSP”) allowances. EPA has stated in the Federal
Register that the CSP is a voluntary provision of the NOx SIP
Call that provides emissions credits to states to allocate in order
to cover excess emissions under certain circumstances. See NOx
SIP Call, 63 Fed. Reg. at 57,428, 57,493. Under the Remand
Rule, EPA would authorize CSP credits to Georgia of up to
10,728 tons of NOx, if Georgia meets the CSP requirements. See
Remand Rule, 69 Fed. Reg. at 21,629–30, 21,643–44. In its
reply brief, North Carolina suggests in a footnote that Georgia’s
emissions may not qualify for any available CSP credits.
However, counsel for EPA advised the court during oral
argument that EPA generally has approved a CSP allowance in
states subject to the NOx SIP Call. Oral Arg. Tape at
29:12–29:43. In addition, the Capp Affidavit states that Georgia
would have used its CSP allowance to meet the Remand Rule’s
NOx emissions cap. During oral argument North Carolina’s only
response was to question Georgia’s ability to qualify for any
authorized CSP credits. North Carolina offered no data and
cited no statute, regulation, or EPA policy that would bar
Georgia from accessing any CSP credits. It appears likely, then,
that if Georgia had been subject to the NOx SIP Call under the
Remand Rule, Georgia would have used CSP credits to comply
with the NOx emissions cap and would not have needed to lower
its emissions to meet the requirements of the NOx SIP Call.
The Division’s showing in its sur-reply that Georgia intends
to use CSP credits to cover its excess emissions thus resolves the
question of redressability, for North Carolina can no longer
show that vacating the Withdrawal Rule and re-including
13
northern Georgia in the NOx SIP Call is likely to redress North
Carolina’s difficulty in meeting the 1997 NAAQS eight-hour
ozone standard. As counsel for North Carolina stated at oral
argument, if reinstating Georgia in the NOx SIP Call would not
lower Georgia’s emissions, then North Carolina has a standing
problem. Accordingly, we dismiss North Carolina’s petition for
lack of standing.