Case: 18-60606 Document: 00515683679 Page: 1 Date Filed: 12/23/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 23, 2020
No. 18-60606 Lyle W. Cayce
Clerk
State of Texas; Greg Abbott, Governor of the State of Texas;
Texas Commission on Environmental Quality; Sierra
Club,
Petitioners,
versus
United States Environmental Protection Agency;
Andrew Wheeler, Administrator of the United States Environmental
Protection Agency,
Respondents.
On Petitions for Review of Final Action of the
United States Environmental Protection Agency
Before Clement, Elrod, and Duncan, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
The State of Texas and Sierra Club challenge the Environmental
Protection Agency’s action designating Bexar County, Texas as in
nonattainment and three neighboring counties as in attainment with the 2015
Ozone National Ambient Air Quality Standards (NAAQS). In 2018, EPA
modified Texas’s designation of Bexar County from attainment to
nonattainment. Texas challenges this action on the basis that the State’s
Case: 18-60606 Document: 00515683679 Page: 2 Date Filed: 12/23/2020
No. 18-60606
modeling projected the county to be in attainment by the year 2020. Sierra
Club insists that EPA should have designated three of Bexar’s neighboring
counties (Atascosa, Comal, and Guadalupe) as nonattainment because they
impacted more than one percent of Bexar’s ambient ozone levels. Because
the relevant statutory language grants EPA discretionary authority to make
the changes it “deems necessary,” and because EPA’s interpretation and
implementation of the statute is reasonable, we DENY both petitions.
I.
A.
Ground level (or ambient) ozone is associated with negative health
effects, such as decreased lung function and respiratory symptoms. See Miss.
Comm’n on Env’t Quality v. EPA, 790 F.3d 138, 147 (D.C. Cir. 2015) (citation
omitted). It can also have detrimental effects on trees, vegetation, and crops,
as well as indirect effects on soil, water, and wildlife. Id. Ozone forms when
nitrous oxides and volatile organic compounds react with sunlight. Because
states cannot regulate sunlight, ozone regulation focuses on “ozone-
precursor producers like power plants, industrial compounds, motor vehicles
and combustion engines.” Id.
The Clean Air Act establishes a comprehensive system for protecting
the country’s air quality. 42 U.S.C. §§ 7401–7671q. In this system, state and
federal actors work together to reduce air pollution. The Clean Air Act
“requires the Administrator of EPA to promulgate NAAQS for each air
pollutant for which ‘air quality criteria’ have been issued under . . . 42 U.S.C.
§ 7408.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 462 (2001). “[A]t
five-year intervals . . . the Administrator shall complete a thorough review”
of the NAAQS and “promulgate such new standards as may be appropriate.”
42 U.S.C. § 7409(d)(1). Once EPA designates a NAAQS for a pollutant,
“the standards become the centerpiece of a complex statutory regime aimed
at reducing the pollutant’s atmospheric concentration.” Am. Trucking Ass’ns
v. EPA, 283 F.3d 355, 358–59 (D.C. Cir. 2002).
2
Case: 18-60606 Document: 00515683679 Page: 3 Date Filed: 12/23/2020
No. 18-60606
When new standards are issued or old standards are revised, the states
and EPA work within the Clean Air Act’s structure of cooperative federalism
to implement the new standards. Governors must “submit to the
Administrator a list of all areas (or portions thereof) in the State, designating
[each area] as . . . nonattainment, . . . attainment, . . . or unclassifiable.” Id.
§ 7407(d)(1)(A). The Administrator then “promulgate[s] the designations
of all areas (or portions thereof) submitted under subparagraph (A) as
expeditiously as practicable.” Id. § 7407(d)(1)(B)(i). “In making [those]
promulgations . . . the Administrator may make such modifications as the
Administrator deems necessary to the designations of the areas” submitted
by the states. Id. § 7407(d)(1)(B)(ii). “If the Governor fails to submit the list
. . . the Administrator shall promulgate the designation that the
Administrator deems appropriate for any area . . . not designated by the
State.” Id. If EPA intends to modify a state’s plan, the Administrator must
“notify the State and provide such State with an opportunity to demonstrate
why any proposed modification is inappropriate.” Id.
An area is designated nonattainment if it “does not meet (or . . .
contributes to ambient air quality in a nearby area that does not meet) the
national primary or secondary ambient air quality standard for the pollutant.”
42 U.S.C. § 7407(d)(1)(A)(i). Nonattainment areas are further classified as
marginal, moderate, serious, severe, or extreme, depending on the severity
of air pollution. See 40 C.F.R. § 51.1303 (2018). The higher a county’s
nonattainment classification, the more stringent the air planning
requirements are to bring the county back into compliance. 42 U.S.C.
§§ 7511, 7511a.
Any area that meets the NAAQS for a given pollutant will be
designated as attainment. 42 U.S.C. § 7407(d)(1)(A)(ii). If an area “cannot
be classified on the basis of available information as meeting or not meeting
the [NAAQS] for the pollutant,” it is designated unclassifiable. Id.
§ 7407(d)(1)(A)(iii). EPA considers an “area designated as either
3
Case: 18-60606 Document: 00515683679 Page: 4 Date Filed: 12/23/2020
No. 18-60606
attainment, unclassifiable, or attainment/unclassifiable” to be an
“[a]ttainment area.” 40 C.F.R. § 51.1100(g) (2015).
For the 2015 ozone NAAQS, attainment is met “when the 3-year av-
erage of the annual fourth-highest daily maximum 8-hour average O3 concen-
tration . . . is less than or equal to 0.070 ppm.” 40 C.F.R. pt. 50, Appx.
U(4)(a) (2015). EPA requires states to submit “an annual monitoring net-
work plan which shall provide for the documentation of the establishment
and maintenance of an air quality surveillance system.” 40 C.F.R.
§ 58.10(a)(1) (2016). This system uses air monitoring stations to gather air
quality data. Where monitoring stations are located depends largely upon
population. This means that many counties with fewer than 350,000 resi-
dents have no monitoring station. See 40 C.F.R. pt. 58, Appx. D, Table D-2
(2016).
Counties with no monitoring stations can still be designated nonat-
tainment if they “contribute[] to ambient air quality” in a nearby nonattain-
ment area. 42 U.S.C. § 7407(d)(1)(A)(i). EPA evaluates the contribution of
such counties to neighboring nonattainment counties using a five-factor bal-
ancing test that considers: (1) air quality data; (2) emissions and emissions-
related data; (3) meteorological data; (4) geography/topography; and (5) ju-
risdictional boundaries. See Janet G. McCabe, Acting Assistant Administra-
tor, Area Designations for the 2015 Ozone National Ambient Air Quality Stand-
ards, Attachment 3 (Feb. 25, 2016).
Once a county has been designated nonattainment, the state has “the
primary responsibility for assuring air quality within” its borders. 42 U.S.C.
§ 7407(a). The state must develop a state implementation plan (SIP) that
“provides for implementation, maintenance, and enforcement” of the unat-
tained standard. 42 U.S.C. § 7410(a)(1). At that point, “the Administrator
shall approve such submittal as a whole if it meets all of the applicable re-
quirements of this chapter.” 42 U.S.C. § 7410(k)(3).
4
Case: 18-60606 Document: 00515683679 Page: 5 Date Filed: 12/23/2020
No. 18-60606
B.
In 2015, EPA revised its ozone NAAQS from 0.075 ppm to 0.07 ppm.
National Ambient Air Quality Standards for Ozone, 80 Fed. Reg. 65,292
(Oct. 26, 2015). Texas submitted the required initial designations for its
counties. Because Bexar County’s monitors reported a certified 2013–2015
design value of 0.078 ppm, Texas recommended that it be designated nonat-
tainment. For seven of Bexar’s neighboring counties (including Atascosa,
Comal, and Guadalupe counties), Texas recommended a designation of “un-
classifiable/attainment.” One year later, Texas asked EPA “to allow the
state more time to show that additional data and considerations” warranted
an attainment designation for Bexar County. In February 2018, the Texas
governor wrote EPA to assert that “Bexar County is projected to satisfy the
2015 NAAQS by 2020, and that projected compliance is sufficient to support
an attainment designation.”
EPA rejected Texas’s revised designation. It called for public com-
ments, which Texas, Sierra Club, and Environmental Defense Fund submit-
ted. In July 2018, the Administrator promulgated the final designations for
the eight counties in the San Antonio region. See Additional Air Quality Des-
ignations for the 2015 Ozone National Ambient Air Quality Standards—San
Antonio, Texas Area, 83 Fed. Reg. 35,136–01 (July 25, 2018). The agency
designated Bexar County as a marginal nonattainment area “based on air
quality monitoring data from the 3 most recent years of certified data, which
are 2015–2017.” 83 Fed. Reg. at 35,138–39. The other seven neighboring
counties were designated as attainment/unclassifiable after EPA conducted
its five-factor contribution analysis. 83 Fed. Reg. at 35,140.
Texas and Sierra Club timely filed petitions for review. Texas sought
review in this court, while Sierra Club sought review in the D.C. Circuit.
Texas filed an opposed motion in this court to confirm venue. The D.C. Cir-
cuit consolidated the challenges and placed them in abeyance pending this
court’s resolution of the venue motion. This court granted Texas’s motion
5
Case: 18-60606 Document: 00515683679 Page: 6 Date Filed: 12/23/2020
No. 18-60606
to confirm venue. The D.C. Circuit then granted Texas’s motion to transfer
the consolidated cases to this court. Sierra Club continues to oppose venue
in this court. 1
II.
We first address whether venue is proper in the Fifth Circuit and
conclude that it is.
A.
The Clean Air Act’s venue provision provides for judicial review of
agency actions in either the D.C. Circuit or the “appropriate circuit,”
meaning the circuit within which the agency’s action applies. 42 U.S.C.
§ 7607(b)(1). We have previously explained that § 7607(b)(1) is a “two-fold
provision” that is both “a conferral of jurisdiction upon the courts of
appeals” and a requirement that “delineates the appropriate venue for
challenges.” Texas v. EPA, 829 F.3d 405, 418 (5th Cir. 2016).
According to the Act’s venue scheme, challenges to actions which are
“locally or regionally applicable” belong in the appropriate regional court of
appeals. On the other hand, venue lies exclusively in the D.C. Circuit under
one of two conditions: first, if the petition seeks review of an “action of the
Administrator in promulgating any [NAAQS] . . . or any other nationally
applicable regulations promulgated, or final action taken, by the
administrator”; or second, if the challenged action, although locally or
regionally applicable, “is based on a determination of nationwide scope or
effect and in taking such action the Administrator finds and publishes that
1
Both Texas and Sierra Club have properly intervened in the other’s petition, and
Sierra Club is joined in its intervention by the Environmental Defense Fund. Sierra Club
has standing to pursue its challenge. It has submitted affidavits from members who live and
work in the San Antonio area and enjoy the area’s recreational activities. Environmental
Defense Fund also has associational standing based on similar affidavits from members who
live in San Antonio and participate in outdoor activities. See Sierra Club v. EPA, 939 F.3d
649, 664 (5th Cir. 2019).
6
Case: 18-60606 Document: 00515683679 Page: 7 Date Filed: 12/23/2020
No. 18-60606
such action is based on such a determination.” 42 U.S.C. § 7607(b)
(emphasis added).
The court—not EPA—determines both the scope of an action’s
applicability and whether it was based on a determination of nationwide
scope or effect. See Texas, 829 F.3d at 420–21 (noting that the statute uses
clear language and that the statutory text does not confer authority on the
Administrator to make these determinations); Am. Rd. & Transp. Builders
Ass’n v. EPA, 705 F.3d 453, 455–56 (D.C. Cir. 2013) (according EPA no
deference in determination that rulemaking was not nationally applicable).
B.
Sierra Club contends that venue lies in the D.C. Circuit because the
San Antonio designations are part of a “nationally applicable regulation” and
because the Administrator acted arbitrarily and capriciously by failing to
make a publication to that effect. Texas and EPA respond that venue is ap-
propriate in this court because the designations are only “locally or regionally
applicable” and the EPA did not publish a finding that they were based on a
determination of nationwide scope or effect. The latter are correct.
This case involves a locally or regionally applicable action. That
action is EPA’s final designation of Atascosa, Bexar, Comal, and Guadalupe
counties as attainment or nonattainment. See 83 Fed. Reg. at 35,136. This
action is “locally or regionally applicable” because it is directed only at four
contiguous Texas counties. Compare Texas v. EPA, No. 10-60961, 2011 WL
710598, at *3 (5th Cir. Feb. 24, 2011) (holding that agency action affecting
thirteen states that spanned seven federal circuits was nationally applicable),
with Am. Road & Transp. Builders Ass’n, 705 F.3d at 455–56 (holding that
agency action concerning a California SIP was locally or regionally
applicable).
Locally or regionally applicable actions are limited to the D.C. Circuit
only when the action (1) is “based on a determination of nationwide scope or
7
Case: 18-60606 Document: 00515683679 Page: 8 Date Filed: 12/23/2020
No. 18-60606
effect” and (2) “the Administrator finds and publishes that such action is
based on” a determination of nationwide scope or effect. 42 U.S.C.
§ 7607(b)(1). Here, the Administrator published no such determination.
When the Administrator does not announce that an action is based on a
determination of nationwide scope or effect, “the exception transferring
venue to the D.C. Circuit does not apply.” Texas, 829 F.3d at 420 n.17.
Relying on a concurring opinion from another circuit, Sierra Club
contends that EPA’s failure to publish a nationwide scope or effect
determination was “arbitrary and capricious.” See Nat’l Env’t Dev. Ass’ns
Clean Air Project v. EPA, 891 F.3d 1041, 1053 (D.C. Cir. 2018) (Silberman, J.,
concurring). That argument does not comport with the text of the statute or
this circuit’s precedent. This court “independently consider[s] whether the
Administrator has published a suitable finding.” Texas, 829 F.3d at 420 n.17
(emphasis added). Arbitrary and capricious review does not govern the
question of whether the EPA should have published a nationwide-scope-or-
effect determination without any legal requirement to do so.
The Clean Air Act allows EPA to direct regionally applicable actions
that are “based on a determination of nationwide scope or effect” to the D.C.
Circuit. The Act does not require EPA to send such cases there. Instead,
locally or regionally applicable actions are properly before the regional
circuits unless the action is both “based on a determination of nationwide
scope or effect” and “the Administrator finds and publishes” such a
conclusion. 42 U.S.C. § 7607(b)(1). Sierra Club’s reading gives no
independent meaning to the text’s conditioning venue on whether “the
Administrator finds and publishes” a nationwide conclusion. Cf. Corley v.
United States, 556 U.S. 303, 314 (2009) (observing that “one of the most basic
interpretive canons” is “that a statute should be construed so that effect is
given to all its provisions”) (internal quotation marks and modifications
omitted).
8
Case: 18-60606 Document: 00515683679 Page: 9 Date Filed: 12/23/2020
No. 18-60606
Under Sierra Club’s reading, there would be no need for “the
Administrator [to] find[] and publish[]” its determination. See 42 U.S.C.
§ 7607(b)(1). The court already independently determines whether an action
actually was “based on a determination of nationwide scope or effect.” Id.
If Congress desired courts, and not the agency, to be the final adjudicator, it
would have left out entirely the requirement that “the Administrator find[]
and publish[]” its determination. To Sierra Club’s “proposal, the short
answer is that Congress did not write the statute that way.” Corley, 556 U.S.
at 315 (internal quotation marks and modifications omitted). Instead,
Congress instructed that regional actions based on national determinations
are directed to the D.C. Circuit if and only if “the Administrator finds and
publishes that such action is based on such a determination.” 42 U.S.C.
§ 7607(b)(1) (emphasis added).
The Act “gives EPA discretion to transfer venue” when the
nationwide scope or effect condition is satisfied. Texas, 829 F.3d at 421.
Congress similarly gave EPA discretion to send such actions to the regional
circuits—and EPA exercises that discretion when it declines to “publish[]
that such action is based on such a determination.” 42 U.S.C. § 7607(b)(1).
That decision is “committed to agency discretion by law.” See 5 U.S.C.
§ 701(a)(2); Texas, 829 F.3d at 425 (explaining that the “standard of review
of Clean Air Act actions tracks standards provided by Administrative
Procedure Act, 5 U.S.C. § 706”). A court may compel purportedly withheld
action (here, the failure to publish a nationwide finding) only when the action
is “legally required.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 63
(2004).
The Clean Air Act might read that way if it said that the Administrator
must publish its determination when it so finds. Instead, the Act says that
venue is limited to the D.C. Circuit “if in taking such action the
Administrator finds and publishes” that determination. 42 U.S.C.
9
Case: 18-60606 Document: 00515683679 Page: 10 Date Filed: 12/23/2020
No. 18-60606
§ 7607(b)(1) (emphasis added). That is not the language of legal obligation.
Cf. Norton, 542 U.S. at 63 (observing that the APA’s authorization for courts
to “‘compel agency action unlawfully withheld’” “carried forward the
traditional practice” of the writ of mandamus, which was normally issued
only where “an official had no discretion whatever”) (internal quotation
marks and alterations omitted) (quoting 5 U.S.C. § 706(1)).
Congress’s scheme also makes sense. All nationally applicable actions
go to the D.C. Circuit, which promotes national uniformity. All locally or
regionally applicable actions that are based on local and regional
determinations go to the regional circuits, which promotes responsiveness
and attention to local and regional diversity. For the hybrid type of actions—
locally or regionally applicable actions based on determinations of nationwide
scope or effect—Congress gave the EPA Administrator, as the nation’s
national regulator, discretion to decide. The way EPA communicates that
decision is the publication (or lack of publication) of its determination. And
that message (whether it is published, or not) instructs petitioners where to
seek judicial review. Sierra Club’s reading does violence to that statutory
scheme.
Courts decide whether an action is locally applicable and whether an
action is based on a national determination. But when a locally applicable
action is based on a determination of nationwide scope or effect, the EPA has
discretion to select the venue for judicial review. When EPA directs judicial
review of an appropriate agency action to a regional circuit instead of the D.C.
Circuit, Congress has entitled neither Sierra Club nor federal courts to
second-guess that decision.
III.
We next turn to Texas’s challenge to EPA’s designation of Bexar
County as a nonattainment county. The main dispute between Texas and
10
Case: 18-60606 Document: 00515683679 Page: 11 Date Filed: 12/23/2020
No. 18-60606
EPA is whether EPA had the statutory authority to change Texas’s
recommended designation of Bexar County from attainment to
nonattainment. Texas maintains that the Clean Air Act authorizes such a
change only when it is “necessary,” meaning that it is unavoidable and must
be done, and that it was not necessary here. EPA counters that the statute
authorizes changes that “the Administrator deems necessary,” which grants
discretionary authority to EPA to make such determinations and that, in any
event, EPA did not err in its determination. We agree with EPA.
A.
Under the Administrative Procedure Act, we will set aside an EPA
action that is “arbitrary, capricious, an abuse of discretion, not in accordance
with law, or unsupported by substantial evidence on the record taken as a
whole.” Texas v. EPA, 690 F.3d 670, 676 (5th Cir. 2012) (quoting Sun
Towers, Inc. v. Schweiker, 694 F.2d 1036, 1038 (5th Cir. 1983)); 5 U.S.C.
§ 706(2). To make that determination, we look to whether EPA has provided
a “satisfactory explanation for its action including a rational connection
between the facts found and the choice made. In reviewing that explanation,
we must consider whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment.” Motor
Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (internal quotation marks and citation omitted).
This court applies the familiar Chevron framework to questions
involving EPA’s interpretations of the Clean Air Act. BCCA Appeal Grp. v.
EPA, 355 F.3d 817, 824 (5th Cir. 2003), as amended on denial of reh’g and reh’g
en banc (Jan. 8, 2004) (citing Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837,
842–43 (1984)). First, the court asks “whether Congress has directly spoken
to the precise question at issue” or whether, instead, the statute is
ambiguous. Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 392 n.10 (5th Cir.
11
Case: 18-60606 Document: 00515683679 Page: 12 Date Filed: 12/23/2020
No. 18-60606
2014) (quoting Chevron, 467 U.S. at 842–43)). We use traditional tools of
construction, focusing on statutory text, context, structure, and history. See
id. Where the statute is unambiguous, the inquiry ends. Chevron, 467 U.S.
at 843. However, if the court determines the statute is ambiguous, we ask if
the agency’s interpretation is “based on a permissible construction of the
statute.” Id. Next, we ask if the agency’s interpretation is “based on a
permissible construction of the statute.” Id. If the construction is
reasonable, the court must accept it, “even if it differs from how the court
would have interpreted the statute in the absence of an agency regulation.”
Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 158 (2013) (citing Nat’l
Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980
(2005)). “Federal courts accord ‘great deference’ to the EPA’s construction
of the [Clean Air Act].” Luminant Generation Co. v. EPA, 714 F.3d 841, 851
(5th Cir. 2013) (quoting Union Elec. Co. v. EPA, 427 U.S. 246, 266 (1976)).
B.
We begin by noting that Texas does not deny that, for the relevant
2015–17 period, Bexar County did not comply with the 2015 NAAQS.
Instead, the state argues that it, not EPA, is tasked with determining a
county’s attainment status and that Bexar County would have reached
attainment by 2020 without a change in designation. EPA’s role is merely
clerical in promulgating the state’s designation unless it is “necessary” to
change it. Here, Texas argues that EPA should have accepted the state’s
designation, which was based partly on monitoring data and partly on future
modeling data, because it was not necessary to make a change.
Importantly, the Clean Air Act establishes a system of “cooperative
federalism.” Texas, 829 F.3d at 428 (quoting Luminant Generation Co., LLC
v. EPA, 675 F.3d 917, 921 (5th Cir. 2012)). The state’s role at the attainment
designation phase is to make “initial designations.” 42 U.S.C.
12
Case: 18-60606 Document: 00515683679 Page: 13 Date Filed: 12/23/2020
No. 18-60606
§ 7407(d)(1)(A). Once that is complete, EPA notifies the state of any
contemplated modifications, gives time for appropriate comments, and then
promulgates a final designation. EPA “may either promulgate [the initial
designations] as submitted or modify them as it ‘deems necessary.’” Miss.
Comm’n, 790 F.3d at 146 (quoting 42 U.S.C. § 7407(d)(1)). At that point,
the state takes the final designations and crafts a SIP detailing how the state
plans to achieve attainment within a specified time frame. See id.; Texas, 829
F.3d at 411. EPA, not the state, has the primary responsibility for
promulgating attainment designations under the Clean Air Act. The State
has primary responsibility for creating the SIP. Texas, 829 F.3d at 411.
The state’s first argument leads us to the first step of our Chevron
analysis. We must determine whether “Congress has directly spoken to the”
question of when EPA may modify a state’s proposed attainment
designations. Chevron, 467 U.S. at 842–43. Texas contends that Congress
has expressly cabined EPA’s authority to alter initial designations to cases
where it is “necessary” to do so. The state focuses on the meaning of the
word “necessary,” arguing that it unambiguously means “inescapable” or
“compulsory.” Under this reading, EPA can alter a proposed designation
only when it is essential to do so. EPA counters that the statute grants the
Administrator discretion to make changes whenever it “deems necessary.”
Therefore, Congress has given the agency discretion to determine when
changes are necessary, not merely authority to make changes when it has no
other option. EPA has the better reading of the statute.
“As this is a question of statutory interpretation, we begin with the
text of the statute.” United States v. Lauderdale Cnty., 914 F.3d 960, 961 (5th
Cir. 2019). After a state makes its initial attainment designation, the Clean
Air Act states that the EPA “Administrator may make such modifications as
the Administrator deems necessary” before promulgating the designations.
42 U.S.C. § 7407(d)(1)(B)(ii) (emphasis added). The Act “says nothing of
13
Case: 18-60606 Document: 00515683679 Page: 14 Date Filed: 12/23/2020
No. 18-60606
what precisely will render a modification ‘necessary.’” Catawba Cnty. v.
EPA, 571 F.3d 20, 35 (D.C. Cir. 2009). “Under Chevron, we read Congress’
silence as a delegation of authority to [the agency] to select from among
reasonable options.” EPA v. EME Homer City Generation, L.P., 572 U.S. 489,
515 (2014).
If we were looking at the word “necessary” in isolation, we might
agree with Texas. 2 However, the word does not exist in a vacuum. It is part
of a larger scheme, one which grants discretion to the Administrator to make
modifications that it “deems necessary.” If Congress had said instead that
the Administrator may only make changes “when necessary,” Texas’s
argument might have more merit. Because the statute says that the
Administrator “may” make changes that it “deems necessary,” however, it
is clear that Congress has delegated discretionary authority to EPA to
determine when adjustments should be made.
We turn, then, to the second step of our Chevron analysis: whether
EPA’s construction of the statute is permissible. We conclude that it is. EPA
has determined that a change is necessary when a designation is
“inconsistent with the statutory language.” 83 Fed. Reg. at 35,138/1. Thus,
“any area that does not meet the [NAAQS]” must be designated
“nonattainment,” even if the state initially designated it as “attainment.”
2
Texas cites to several dictionary definitions for the word “necessary,” all of
which the state argues restrict EPA’s discretion by uniformly defining the word as one that
does not bestow discretion. See, e.g., 10 Oxford English Dictionary 275–76 (2d ed. 1989)
(defining necessary as “indispensable, requisite, essential, needful; that cannot be done
without); Merriam Webster’s Collegiate Dictionary 776 (10th ed. 1993) (defining necessary
as “of an inevitable nature: inescapable”). These definitions do not change our analysis.
“A dictionary definition states the core meanings of a term. It cannot delineate the
periphery,” and the meanings of common words (which typically have multiple definitions)
must be determined in the context in which they appear. Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 418–19 (2012).
14
Case: 18-60606 Document: 00515683679 Page: 15 Date Filed: 12/23/2020
No. 18-60606
42 U.S.C. § 7407(d)(1)(A). Texas does not argue that this construction is
impermissible, and we agree that it is a reasonable interpretation of the
statute.
C.
With this definition in mind, we next determine whether EPA’s
decision to change Bexar County’s designation was arbitrary and capricious.
Because Bexar County was not compliant with the 2015 NAAQS when EPA
promulgated its designation, we conclude that the Clean Air Act and the
Administrative Procedure Act allowed the change.
Texas does not contend that, at the time of assessment, Bexar County
met the 2015 NAAQS. Instead, they argue that because their projection data
indicated that Bexar County would be in compliance by 2020, 3 the county
should have been designated as attainment. EPA’s failure to consider the
modeling data was, in Texas’s view, arbitrary and capricious. This argument
relies on the Dictionary Act, which states that “unless the context indicates
otherwise . . . words used in the present tense include the future as well as
the present.” 1 U.S.C. § 1. According to Texas, this means that when 42
U.S.C. § 7407(d)(1)(A)(i) says that any county that “does not meet” the
NAAQS should be designated nonattainment, what the statute really means
is that any county that “does not [now, and will not in the future,] meet” the
NAAQS should be designated nonattainment.
According to Texas, even if EPA has discretion to determine when a
change is necessary, EPA is required to consider modeling data that is
relevant to an area’s attainment designation. If the Dictionary Act compels
EPA to designate an area as attainment if it will meet the NAAQS in the
3
2020 is nearly over, and neither EPA nor Texas has notified the court whether
Bexar County has achieved attainment or not.
15
Case: 18-60606 Document: 00515683679 Page: 16 Date Filed: 12/23/2020
No. 18-60606
future, then it would be arbitrary and capricious to ignore that relevant
information. See State Farm Mut. Auto. Ins. Co., 463 U.S. at 43. 4
We think that the provision of the Dictionary Act cited by Texas does
not apply here. The future-tense presumption applies only where context
does not indicate otherwise. 1 U.S.C. § 1. Context makes it clear in this case
that the designation process considers only the present tense. The text of the
Clean Air Act provides that a state must designate an area nonattainment if
it “does not meet” the NAAQS. 42 U.S.C. § 7407(d)(1)(A)(i). An area
designated as “marginal” nonattainment (such as Bexar County) must then
meet the NAAQS within three years. 42 U.S.C. § 7511(a)(1); 40 C.F.R.
§ 51.1303 (2018). It would be contradictory for EPA to require marginal
nonattainment areas to comply within three years if projected compliance
within three years triggered an attainment designation.
Texas contends that it would have attained the 2015 NAAQS by the
year 2020 without a SIP anyway and that this is the distinguishing
characteristic. The state’s argument, however, is based not on fact, but on
supposition. The statute uses concrete terms: either a county does or does
not meet the NAAQS. Even with the best available modeling data, Texas
could not be certain of future events and future attainment. 5
4
Before addressing this argument, we note that Texas did not raise the Dictionary
Act in the proceedings before the agency. Typically, this would preclude the state from
raising the argument for the first time on appeal. See United States v. L.A. Trucker Truck
Lines, Inc., 344 U.S. 33, 36 (1952); see also Hardman v. Colvin, 820 F.3d 142, 151–52 (5th
Cir. 2016). However, because a court “must consult” the Dictionary Act when dealing
with an act of Congress, we will address the Act’s applicability to this case. Burwell v. Hobby
Lobby Stores, Inc., 573 U.S. 682, 707 (2014).
5
Indeed, at oral argument, EPA informed us that the then-most recent data for
Bexar County indicated that its noncomplying monitors had drifted even further from the
2015 ozone NAAQS.
16
Case: 18-60606 Document: 00515683679 Page: 17 Date Filed: 12/23/2020
No. 18-60606
We therefore conclude that EPA was not required to consider the
modeling data in this case and that the Clean Air Act did, indeed, allow EPA
to change Bexar County’s designation to nonattainment.
IV.
Finally, Sierra Club challenges EPA’s decision to designate Atascosa,
Comal, and Guadalupe counties as attainment/unclassifiable. It contends
that these counties contribute to Bexar County’s ozone emissions.
According to Sierra Club, EPA’s decision was unlawful because it changed
its interpretation of “contribution” without adequate explanation and
because the agency did not sufficiently articulate its reasons for designating
the three counties attainment/unclassifiable. We disagree.
A.
The Clean Air Act requires states and EPA to designate as
“nonattainment, any area that . . . contributes to ambient air quality in a
nearby area that does not meet” the NAAQS. 42 U.S.C. § 7407(d)(1)(A)(i).
To determine whether a given county “contributes” to a nearby
nonattainment area, EPA uses a five-factor test. This test assesses: (1) air
quality data; (2) emissions and emissions-related data; (3) meteorological
data; (4) geography/topography; and (5) jurisdictional boundaries. Sierra
Club does not assert that this approach violates the Clean Air Act.
Instead, it argues that in the past, “EPA has consistently found that
pollution impacts greater than one percent of the applicable NAAQS
constitute a ‘significant’ contribution to downwind nonattainment.” In
Sierra Club’s view, this past practice establishes a one-percent threshold: If
a county’s emissions impact more than one percent of a neighboring county’s
ambient ozone levels, then that county must be designated nonattainment.
Because EPA designated all three contested counties as
attainment/unclassifiable despite the fact that they are above that one-
17
Case: 18-60606 Document: 00515683679 Page: 18 Date Filed: 12/23/2020
No. 18-60606
percent threshold, Sierra Club contends that EPA has “arbitrarily failed to
acknowledge” its deviation from past practice. Citing to FCC v. Fox
Television Stations, 556 U.S. 502 (2008), Sierra Club maintains that EPA’s
decision is arbitrary because it changes its interpretation of “contribution”
without warning or proper explanation. See id. at 515 (explaining that when
an agency departs from its interpretation of a statute, the agency must
“display awareness that it is changing position” and “show that there are
good reasons for the new policy”). This argument fails for several reasons.
First, the text of the Clean Air Act does not require EPA to adopt a
one-percent threshold. Indeed, the Act contains no numeric threshold
regarding attainment designations whatsoever. Perhaps recognizing this,
Sierra Club anchors its argument instead in EPA’s interpretation of the
separate “Good Neighbor” provision that specifies requirements for SIPs
and applies to emissions transferred between different states. See 42 U.S.C.
§ 7410(a)(2)(D). We note that the proposed one-percent threshold does not
appear in the text of that provision either. 6 Even if it did, that provision and
its interpretation have no bearing on whether EPA must now apply a numeric
threshold to its initial attainment designations.
Second, it is not clear that EPA has ever adopted a one-percent
threshold for attainment designations. Rather, EPA has successfully used a
multi-factor balancing test to assess attainment designations for years. Cf.
Catawba Cnty., 571 F.3d at 28. That test has never included numeric
6
Under the Good Neighbor provision, and EPA’s related regulations, states that
exceed the one-percent level are subjected to additional analysis. They are not
automatically considered in violation of the Clean Air Act. EPA considers a state in
violation of the Good Neighbor provision only if EPA determines the emission could be
reduced in a cost-effective manner. See EME Homer City Generation, 572 U.S. at 502–03;
Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone
and Correction of SIP Approvals, 76 Fed. Reg. 48,208, 48,253 (Aug. 8, 2011).
18
Case: 18-60606 Document: 00515683679 Page: 19 Date Filed: 12/23/2020
No. 18-60606
thresholds. Moreover, Sierra Club cites no case law suggesting that EPA is
(or should be) bound to any numeric threshold in its contribution
determinations. Nor does Sierra Club point us to cases where EPA employed
a one-percent threshold either in lieu of or in addition to its multi-factor
analysis.
This is likely because attainment designations are data-intensive,
technical, and complex. “Given significant differences among counties, a
direct one-to-one comparison of the data, including the methods used to
measure such data, could be inappropriate or even illogical.” Miss. Comm’n,
790 F.3d at 169 (internal quotations omitted). When a multi-factor test is
involved, “‘discrete data points’ are not determinative because elevating
them ‘ignore[s] the very nature of the . . . test, which is designed to analyze a
wide variety of data on a case-by-case basis.’” ATK Launch Sys., Inc. v. EPA,
669 F.3d 330, 336 (D.C. Cir. 2012) (quoting Catawba Cnty., 571 F.3d at 46).
A numeric threshold would not make sense under such a scheme because it
would render the other relevant factors suddenly irrelevant upon reaching
the threshold. That would defeat the purpose of considering multiple factors
in the first place.
Without the one-percent threshold, Sierra Club’s argument
essentially becomes that EPA’s designation of Atascosa, Comal, and
Guadalupe counties as attainment/unclassifiable is at odds with how it has
treated similarly situated counties in the past. This argument might have
merit if Sierra Club could show the disparity. A multi-factor analysis will
necessarily lead to different counties receiving different designations based
on their individual circumstances. There is opportunity for abuse of
discretion there. This does not mean that every difference in designation is
arbitrary, however. We agree with the D.C. Circuit that EPA subjects a
county to “arbitrarily disparate treatment only if it treat[s] genuinely ‘similar
19
Case: 18-60606 Document: 00515683679 Page: 20 Date Filed: 12/23/2020
No. 18-60606
counties’ dissimilarly.” Miss. Comm’n, 790 F.3d at 169 (emphasis in original)
(quoting ATK Launch Sys., 669 F.3d at 336).
Sierra Club argues that “EPA’s approach to Atascosa, Comal, and
Guadalupe Counties is arbitrarily inconsistent with the agency’s
nonattainment designations for other parts of Texas under the 2008 ozone
standard.” Specifically, Sierra Club points us to EPA’s treatment of Wise
County in 2008. At that time, Wise County emissions contributed more than
one percent to the ambient ozone levels of Dallas, and EPA designated them
as nonattainment. See id. at 168.
The Environmental Intervenors declare that the incongruent
treatment of the four Texas counties is arbitrary: if Wise County were in
nonattainment once it reached the one-percent line, why are Atoscosa,
Comal, and Guadalupe counties not treated the same? This argument
ignores the fact that EPA also conducted a multi-factor analysis for Wise
County, and “no single factor determine[d] a particular designation.” Id. at
169 (quoting ATK Launch Sys., 669 F.3d at 336). Thus, although Wise
County may have contributed more than one percent to the ambient air
quality, that was not the dispositive factor. EPA weighed all of the relevant
factors in that case and came to a reasoned conclusion.
The contested counties have received identical treatment here. EPA
has conducted its five-factor analysis and determined that, although the three
contested counties may impact Bexar County’s ambient ozone levels more
than one percent each, the other factors justify the attainment/unclassifiable
designation that the agency gave them. Atascosa, Comal, and Guadalupe
Counties have been given the same analytical treatment that Wise County
was given in 2008. Though the outcomes are different, that is to be expected
given the differences between the currently contested counties and Wise
County. Indeed, for EPA to suddenly ignore all factors besides the one Sierra
20
Case: 18-60606 Document: 00515683679 Page: 21 Date Filed: 12/23/2020
No. 18-60606
Club has selected would be more arbitrary because the agency gave Wise
County a full and fair evaluation before designating it as a nonattainment
county.
We conclude that EPA has not arbitrarily reversed its interpretation
of “contribution.” In this case, it has acted consistently with its previous
practices and interpretations.
B.
Sierra Club also insists that EPA “failed to articulate a rational
connection between the facts in the record and its decision not to designate”
the disputed counties as nonattainment. This argument is contradicted by
the reasoned analysis provided by EPA at the time it designated these three
counties as attainment/unclassifiable based on its five-factor analysis.
EPA analyzed the air quality data for each county, including the
locations of the violating monitors in Bexar County and the magnitude of
those violations. The agency assessed emissions data, including an emissions
inventory, location of point sources, mobile emission sources, and population
and traffic growth. It addressed meteorological data using a Hybrid Single
Particle Lagrangian Integrated Trajectory model to evaluate wind and air
flow patterns and determined that the prevailing winds were more likely to
carry particles from Bexar County to two of the three contested counties, not
the other way around. The agency explained that geography and topography
had little impact on its analysis of the San Antonio region because it “does
not have any geographical or topographical features” that significantly affect
air pollution transport. Moreover, EPA considered jurisdictional boundaries
throughout its analysis. No factor was short-changed, and EPA explained the
connections between each data point and the decision it reached.
In short, EPA considered the relevant information and adequately
explained its designations of Atascosa, Comal, and Guadalupe counties.
21
Case: 18-60606 Document: 00515683679 Page: 22 Date Filed: 12/23/2020
No. 18-60606
Because our “review is most deferential to the EPA’s fact findings,
particularly where those findings relate to the EPA’s evaluation of scientific
data for which the Agency possesses technical expertise,” and because we
see no reason to question EPA’s fact-finding or analysis here, we conclude
that EPA’s designations of the three contested counties complied with the
Administrative Procedure Act. Texas, 690 F.3d at 677.
V.
Because this case involves a locally or regionally applicable action
under 42 U.S.C. § 7607(b)(1), and because EPA did not find and publish a
determination that its designations of the contested Texas counties were
based on a determination of nationwide scope or effect, we conclude that
venue is proper in this court.
The Clean Air Act allows EPA to modify a state’s initial attainment
designation whenever it “deems necessary.” That language grants EPA
discretion to determine when it is necessary to make changes to a state’s
initial designation. Here, EPA concluded that Texas’s designation of Bexar
County as “attainment” needed adjustment. Texas’s petition is DENIED.
The Clean Air Act also instructs states and EPA to designate counties
that contribute to the nonattainment status of neighboring counties as
nonattainment. EPA used a permissible, multi-factor analysis to determine
that the contributions of Atascosa, Comal, and Guadalupe Counties to Bexar
County’s ambient ozone levels were insufficient to merit a nonattainment
designation. The agency’s action was not arbitrary and capricious.
Therefore, Sierra Club’s petition is also DENIED.
22