IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT Fifth Circuit
FILED
August 13, 2008
No. 06-61030 Charles R. Fulbruge III
Clerk
GALVESTON-HOUSTON ASSOCIATION FOR SMOG PREVENTION
(GHASP),
Petitioner,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent,
BCCA APPEAL GROUP; HARRIS COUNTY TEXAS; FORT BEND
COUNTY; BRAZORIA COUNTY; BRAZORIA COUNTY, TEXAS; CITY OF
HOUSTON, TEXAS,
Intervenors.
On Petition for Review of Final Regulations of the
United States Environmental Protection Agency
Before GARZA, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Petitioner Galveston-Houston Association for Smog Prevention (“GHASP”)
seeks review of the United States Environmental Protection Agency’s (“EPA”)
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-61030
final rulemaking action approving the Mid-Course Review State Implementation
Plan (“MCR SIP”) submitted by the State of Texas for the
Houston/Galveston/Brazoria Severe Ozone Nonattainment Area (“HGB area”).
Texas submitted the MCR SIP to satisfy one of the enforceable commitments
contained in a previously approved State Implementation Plan for the HGB
area. GHASP contends that (1) the EPA acted arbitrarily and capriciously in
approving the MCR SIP because it does not demonstrate attainment of specified
emissions reductions; (2) the EPA acted arbitrarily and capriciously in relying
on weight of evidence analysis to excuse modeled nonattainment; and (3) by
approving the MCR SIP, the EPA violated the non-interference or
anti-backsliding provision of the Clean Air Act. For the following reasons, we
deny the petition for review. GHASP also petitions this court for an award of
attorneys’ fees, which we deny as well.
FACTUAL AND PROCEDURAL BACKGROUND
A. Clean Air Act
The Clean Air Act (“CAA” or “the Act”), enacted in 1970 and revised in
1977 and 1990, establishes a comprehensive program for controlling and
improving the nation’s air quality through a combination of federal and state
regulation. 42 U.S.C. § 7401(a)(4). Under Title I of the CAA, the EPA is
responsible for identifying air pollutants that endanger the public and
formulating the National Ambient Air Quality Standards (“NAAQS”), which
establish maximum permissible concentrations of those pollutants in ambient
air. 42 U.S.C. §§ 7408-7409. The EPA Administrator has promulgated NAAQS
for various pollutants, including ozone. The standard for the one-hour NAAQS
for ozone is .12 parts per million (although EPA often refers to it as 124.5 parts
per billion (“ppb”)), and an area attains the standard when maximum measured
hourly average ozone concentrations exceed the NAAQS no more than one day
per calendar year. 40 C.F.R. § 50.9.
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No. 06-61030
Under the Act, the EPA designates areas of the country as “attainment”
or “nonattainment” based on whether the area meets the NAAQS for a particular
pollutant.1 42 U.S.C. § 7407(d). Nonattainment areas are further classified as
“marginal,” “moderate,” “serious,” “severe,” or “extreme” based on the severity
and duration of their noncompliance. 42 U.S.C. § 7511(a). Based on an area’s
classification, the Act establishes the stringency of the measures that the area
must implement to reduce emissions of volatile organic compounds (“VOCs”) and
nitrogen oxides (“NOx”), both of which are precursors to the formation of ozone
in the ambient air. See 42 U.S.C. § 7511a. This qualification also establishes
deadlines for attainment of the NAAQS depending upon an area’s
nonattainment classification. 42 U.S.C. §§ 7410, 7502, 7511(a). If an area fails
to attain the one-hour NAAQS by the applicable deadline, the EPA must
reclassify it to a higher classification. 42 U.S.C. § 7511(b)(2). Generally,
reclassification grants the area a later attainment deadline, but requires it to
comply with the more stringent pollution control measures applicable to the
higher classification. 42 U.S.C. § 7511(a)(1), (b)(2); 42 U.S.C. § 7511a.
Although the EPA determines the standards of air quality, under the
CAA, states have the primary responsibility for ensuring that the NAAQS are
met for each identified pollutant. 42 U.S.C. § 7407(a). This responsibility
includes a requirement that states adopt State Implementation Plans (“SIPs”),
specifying the way in which the state will implement, maintain, and enforce
ambient air quality standards in the various regions throughout the state. Id.
For areas designated from moderate to extreme, the SIP must contain an
“attainment demonstration” that shows that the area will achieve the NAAQS
by the area’s statutory attainment deadline. 42 U.S.C. § 7511a(c)(2)(A); 40
C.F.R. § 51.112. The attainment demonstration is based on the state’s control
1
There is a third classification, “unclassifiable,” which is used to identify areas when
there is insufficient information available to classify the area.
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No. 06-61030
strategy for ozone-precursor emissions, which must “include enforceable
emissions limitations, and such other control measures . . . as may be necessary
or appropriate to provide for attainment of such standard in such area by the
applicable attainment date.” 42 U.S.C. § 7502(c)(6). The EPA may approve an
attainment demonstration if it is “based on photochemical grid modeling or any
other analytical method determined by the Administrator, in the Administrator’s
discretion, to be at least as effective.2 42 U.S.C. § 7511a(c)(2)(A). The SIP, and
any revisions to the SIPs, are to be adopted by each state after reasonable notice
and public hearing and thereafter submitted to the EPA. 42 U.S.C. § 7410(a)(1).
The EPA reviews each proposed SIP and must approve the SIP if it meets all of
the CAA’s requirements. 42 U.S.C. § 7410(k)(3).
B. Houston/Galveston/Brazoria Area Plan
The HGB area has not complied with the federal one-hour health standard
for ground-level ozone since the inception of the CAA in 1970. After the 1990
amendments to the CAA, the HGB area was classified as a “Severe 17” area.
Pursuant to 42 U.S.C. § 7511(a)(2), such areas were required to come into
compliance with the one-hour standard by November 15, 2007.
The Texas Commission on Environmental Quality (“TCEQ”) prepared and
submitted the Texas SIP, which projected compliance with the one-hour ozone
standard by the November 15, 2007 attainment deadline. The EPA approved the
SIP in 2001. The 2001 SIP contained an emissions control strategy including
federal control measures, state emissions limitations that would reduce NOx
from industrial sources by 90 percent, an expanded inspection and maintenance
program for vehicles, a “Clean Diesel Program,” speed limit reductions,
voluntary mobile emission programs (VMEP), controls on airport ground
2
A photochemical grid model is a computerized mathematical model that predicts
ozone levels on the attainment date based on monitoring data, meteorology, planned emission
reductions, the area’s projected growth, and other factors. See BCCA Appeal Group v. EPA,
355 F.3d 817, 829 n.12 (5th Cir. 2003).
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No. 06-61030
equipment, control requirement for non-road, large spark-ignition engines, and
commercial lawn equipment operating restrictions. See generally 66 Fed. Reg.
57160.
In 2003, the Business Coalition for Clean Air Appeal Group (BCCA Appeal
Group), GHASP, and several other groups challenged the EPA’s approval of
Texas’s 2001 SIP before this court. See BCCA, 355 F.3d 817 (5th Cir. 2003). In
that case, this court concluded that: (1) the EPA was not unreasonable in
approving Texas’s photochemical modeling which excluded certain ozone
characteristics from the modeling; (2) “weight of evidence” analysis is consistent
with the CAA’s requirements and reasonably applied to Texas’s attainment
demonstration modeling results; and (3) the use of “enforceable commitments”
is consistent with the CAA.
One of the enforceable commitments contained in the 2001 SIP approved
by this court in BCCA is the subject of the present petition for review,
specifically the MCR SIP.3 Both parties agree that the MCR contains several
revisions to the 2001 SIP. In particular, the MCR SIP relaxed the controls on
industrial NOx emissions from the 90 percent level established in the 2001 SIP
to 80 percent and supplemented this action by including controls on the release
of highly reactive volatile organic compounds (“HRVOCs”). 71 Fed. Reg. at
52,674/2. The MCR SIP also dropped four requirements that had been included
in the 2001 SIP: (1) the requirement for vehicle inspection and maintenance in
three rural counties; (2) restrictions on morning operations for commercial lawn
services; (3) planned reductions in speed limits; and (4) restrictions on idling for
heavy duty diesel vehicles. 71 Fed. Reg. 52,674/1. GHASP contends that: (1) the
3
Texas was supposed to submit a MCR SIP by May 1, 2004 that would demonstrate,
based on updated modeling information, that the HGB area would attain the ozone standard
by the 2007 attainment date. After Texas failed to submit this MCR by the required date,
GHASP filed suit to compel TCEQ to file the MCR. On December 13, 2004, TCEQ filed the
MCR. Thereafter, GHASP withdrew its legal challenge.
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No. 06-61030
EPA acted arbitrarily and capriciously in approving the MCR SIP because it
does not demonstrate attainment of specified emissions reductions; (2) the use
of weight of evidence analysis, as applied here, to excuse modeled nonattainment
of the four days modeling exceedances was unreasonable; and (3) by approving
the MCR SIP, the EPA violated the non-interference provision of the Clean Air
Act. We will address each of these issues in turn.
DISCUSSION
This court may reverse any action of an EPA Administrator that it finds
“arbitrary and capricious, an abuse of discretion, or otherwise not in accordance
with law.” 42 U.S.C. 7607(d)(9)(A); see also BCCA, 355 F.3d at 824. A rule is
considered arbitrary and capricious “where the agency has considered
impermissible factors, failed to consider important aspects of the problem,
offered an explanation for its decision that is contrary to the record evidence, or
is so irrational that it could not be attributed to a difference in opinion or the
result of agency expertise.” BCCA, 355 F.3d at 824 (citation omitted).
Where the agency is interpreting a statute it administers, that
interpretation must be scrutinized under the framework established in Chevron
U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). Thus, where Congress has “directly
spoken to the precise question at issue,” this court must give effect to the
unambiguous intent of Congress. Id. at 842-43. However, if the statute is silent
or ambiguous on a particular issue, the question then becomes whether the
agency’s interpretation is based on a permissible construction of the statute. Id.
at 843. Reversal is warranted only if the agency’s construction is “arbitrary,
capricious, or manifestly contrary to the statute.” Id. at 844. Deference must be
given where the agency’s construction is permissible. Id. at 843.
This court has previously acknowledged that photochemical grid modeling
is a complex scientific determination. See BCCA, 355 F.3d at 834. “A reviewing
court must remember that the agency is making predictions, within its area of
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No. 06-61030
special expertise, at the frontiers of science. When examining this kind of
scientific determination, as opposed to simple findings of fact, a reviewing court
must generally be at its most deferential.” Id. at 832 (citing Baltimore Gas &
Elec. Co. v. NRDC, 462 U.S. 87 (1983)). Thus, this court must determine
whether the EPA’s conclusions “represent arbitrary or capricious exercises of its
authority, not whether they are accurate.” Id. “There is a presumption of
regularity to the EPA’s choice of analytical methodology, so challenging parties
must overcome a ‘considerable burden.’” Id.
A.
An SIP must contain an “attainment demonstration” that shows that the
area will achieve the NAAQS by the area’s statutory attainment deadline. 42
U.S.C. § 7511a(c)(2)(A); 40 C.F.R. § 51.112. The attainment demonstration
must be “based on photochemical modeling or any other analytical method
determined . . . to be at least as effective.” 42 U.S.C. § 7511a(c)(2)(A). Here,
TCEQ selected a nineteen day episode from August 19 through September 6 on
which to perform photochemical modeling in order to determine whether the
control strategy contained in its MCR SIP would meet the NAAQS. 71 Fed. Reg.
52,683. TCEQ determined that it was necessary to exclude nine of the nineteen
days before modeling due to model performance issues. Three of the nine days
excluded before modeling contained exceedances of NAAQS.
GHASP argues that the EPA was arbitrary and capricious because it
approved TCEQ’s exclusion of those three days showing exceedances from
modeling without adequate explanation. Citing Appalachian Power Co. v. EPA,
249 F.3d 1032, 1053 (D.C. Cir. 2001), GHASP argues that although courts
routinely defer to agency modeling of complex phenomena, model assumptions
must have a “rational relationship to the real world.” This court has previously
explained that agency decisions will be upheld if the agency has examined the
relevant data and articulated a reasonable explanation for its conclusions.
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No. 06-61030
BCCA, 355 F.3d at 834. Thus, GHASP must show that the Agency’s decision
was unreasonable in order for this Court to conclude that the EPA acted
arbitrarily or capriciously in approving Texas’s modeling despite the exclusion
of those days. Id. at 832.
GHASP has failed to offer sufficient support for its assertion that the
exclusion of three days showing exceedences necessarily leads to the conclusion
that TCEQ’s modeling bears no resemblance to the real world. In its final rule,
the EPA explained that it approved TCEQ’s decision to exclude nine days (of
which three days showing exceedances were included) from its modeling analysis
due to “model performance issues.” GHASP responds that merely citing model
performance issues is an inadequate explanation for the exclusion of the three
days and that the existence of these issues provides further support for its
contention that there are “major flaws” in the MCR SIP.
The EPA determined, however, that the ten remaining days provided a
sufficient basis for performing the attainment demonstration modeling, noting
that the meteorological conditions present in the HGB area were sufficiently
represented in the remaining ten days. See Technical Support Document for
Approval of SIP Revisions to the One-Hour Ozone Attainment Plan for the
Houston/Galveston/Brazoria Nonattainment Area Final Clean Air, at 21 (Sept.
2005) (“TSD”). This court has previously acknowledged that modeling in the
HGB area is exceptionally complicated due to the unique environmental factors
of the area. Id. at 823 n.1 (noting that Texas’s unique land-sea breeze
meteorological conditions create a “level of complexity . . . not seen anywhere
else in the country” (citing 66 Fed. Red. at 57,164)). Similarly, in the present
case, the EPA explained that complexity of the meteorology of the HGB area was
difficult to replicate in the modeling, see TSD, at 5, 21; for example, the EPA
stated that the model performed poorly on the first four days of the extended
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No. 06-61030
episode, i.e. August 18-22, because it did not generate enough ozone to
correspond to the historic data, TSD, at 20. However, the EPA determined that:
The need for further studies does not mean, however,
that the modeling relied upon today was unable to
estimate the amount and type of emissions reductions
needed for attainment. [The] EPA believes because the
diagnostic/sensitivity tests do not reveal serious flaws
in model formulations and the model generally predicts
the right magnitude of the peak which is confirmed by
the statistical measures and graphical analysis, that
the model does provide an acceptable tool for estimating
the amount of emissions reductions needed.
72 Fed. Reg. at 52,682/2.
We conclude that the EPA offered a rational explanation during the
administrative process for its determination that it was necessary to exclude the
three days at issue from modeling. This court has repeatedly stated that we will
not substitute our judgment for that of the EPA, especially where, as here, the
agency’s decision is based on “its evaluation of complex scientific data within its
technical expertise.” BCCA, F.3d at 824. In light of this deferential standard
and given that the EPA specifically considered and rejected GHASP’s argument,
GHASP has failed to carry its heavy burden of showing that the EPA was
arbitrary or capricious for approving the attainment demonstration that
excluded certain days from modeling.4
4
GHASP also contends that the MCR SIP does not demonstrate timely attainment of
the one-hour ozone standard as mandated by the CAA, citing monitored data from 2003, 2004,
and 2005 indicating that ozone levels in the HGB area exceeded the NAAQS. According to
GHASP: “Modeled data cannot be used to document compliance in the HGB area when the
monitoring data clearly show that the HGB area was violating the national standard at the
time of EPA approval and still is.” GHASP argues therefore that the EPA approval of TECQ's
attainment demonstration was arbitrary and capricious because the State failed to submit
sufficient control measures to achieve the emissions reductions needed for attainment, and the
state failed to demonstrate attainment using photochemical modeling or another analytical
method. GHASP has not made out an argument here, nor has it cited to any relevant case law
that might support its position. See FED. R. APP. P. 28(a)(9); See also City of Seabrook v. EPA,
659 F.2d 1349, 1359-60 (5th Cir. 1981) (concluding that a petitioners naked assertions that
there is no evidence to support the EPA's conclusion does not merit review).
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No. 06-61030
II.
We next consider the EPA’s weight-of evidence analysis. Texas’s
photochemical grid modeling did not demonstrate attainment on four of the ten
modeled days, namely: August 31, September 2, 4, and 6.5 Using weight of
evidence analysis, the TCEQ supplemented the modeling with other evidence to
show that the HGB area would reach its attainment deadline. Specifically, it
determined that: (1) based on certain control strategies which could not be
modeled, September 2, 4, and 6 would reach attainment although they modeled
nonattainment, and (2) August 31 should be excluded from the attainment
demonstration because of the anomalous meteorological conditions present on
that date.
The CAA requires that an attainment demonstration be “based on
photochemical modeling or any other analytical method determined . . . to be at
least as effective,” 42 U.S.C. § 7511a(c)(2)(A); the EPA has interpreted the
statute to allow states to supplement their photochemical modeling results with
additional evidence to demonstrate attainment due to the inherent uncertainties
in air quality modeling. 66 Fed. Reg. at 57,170; see also BCCA, 355 F.3d at 834.
This court has held that where the weight of evidence analysis is set forth in
We acknowledge that the EPA measures attainment over a three year period and the
NAAQS is violated if an area exceeds the standard more than once each year. However, to the
extent that GHASP is attempting to argue that Texas cannot show attainment in 2007
because it failed to show attainment in the two years preceding its attainment deadline, this
argument is without merit. See Environmental Defense v. EPA, 369 F.3d 193, 207 (2d Cir.
2004) (holding that a nonattainment area may demonstrate attainment where it complies with
the NAAQS by the relevant attainment deadline and is eligible for the two one-year extensions
under Section 181(a)(5), 42 U.S.C. § 7511(a)(5)); see also Sierra Club v. EPA, 356 F.3d 296, 307
n.9 (D.C. Cir. 2004)(same).
5
Modeling indicated that on August 31, September 2, 4, and 6, the MCR SIP would
result in daily one-hour maximum ozone levels of 147.6, 128.6, 125.2, and 125.1 ppb,
respectively, all in excess of the 125 ppb NAAQS for ozone. 70 Fed. Reg. 58,122/1.
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No. 06-61030
notice-and-comment rulemaking, it is entitled to deference if it is reasonable.
BCCA, 355 F.3d at 835.
GHASP does not dispute the ability to consider weight of evidence analysis
in evaluating attainment demonstrations, rather it contends that the manner in
which the EPA applied it here was arbitrary and capricious. Specifically,
GHASP asserts that the EPA applied the weight of evidence analysis in a
“totally qualitative” manner, rather than the quantitative approach approved by
this court in BCCA.6 Petitioner maintains that the EPA’s application of weight
of evidence analysis here is not only arbitrary and capricious but violative of
EPA guidance, which provides that “the weight of evidence provided from other
analyses will need to be very compelling to overcome that resulting from the
photochemical grid model.” EPA Office of Air Quality Planning and Standards,
Guidance on Use of Modeled Results to Demonstrate Attainment of the Ozone
NAAQS, EPA-454/ B-95-007 (June 1996).
As an initial matter, we consider the EPA’s contention that GHASP has
waived any argument regarding the application of weight of evidence analysis
to modeling results for September 2, 4, and 6 because it failed to object during
the administrative proceedings. “[O]nly in exceptional circumstances should a
court review for the first time on appeal a particular challenge to the EPA’s
approval of a state implementation plan that was not raised during the agency
proceedings.” BCCA, 355 F.3d at 829 (noting that where a petitioner has not
6
GHASP also argues that the EPA did not consider evidence weighing against a
showing of timely attainment. Specifically, GHASP argues that the EPA did not consider the
following negative information: (1) ozone monitoring from 2004 or 2005 prior to the final
approval of the SIP in September 2006; (2) GHASP’s comments submitted in November 2005
regarding the proposed MCR SIP which noted that the 2005 ozone season had resulted in 4 or
more exceedances at 6 monitors in the HGB area; and (3) indications from the photochemical
grid modeling that attainment would not be reached until 2020, rather than the November 15,
2007 deadline imposed by statute. This argument is without merit. The administrative record
shows that the EPA reasonably and adequately responded to each piece of negative
information identified by GHASP here. See generally 71 Fed. Reg 52670 (Sept. 6, 2006).
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No. 06-61030
challenged “an obligation expressly imposed by the CAA, [the petitioner] needed
to raise its objections during the administrative proceeding [in order to] provide
EPA an opportunity to consider the issue before asserting, after the fact, that
EPA was arbitrary for failing to do so.”). GHASP does not dispute that it failed
to raise an objection to the application of weight of evidence September 2, 4, 6;
nor does it assert that it raised a more general challenge to the allegedly
“quantitative manner” in which TCEQ applied the weight of evidence. Further,
after our review of the administrative record, we were unable to find such an
objection. Accordingly, we find that GHASP has in fact waived review
concerning the application of weight of evidence analysis to results for
September 2, 4, and 6.
This court considers only, therefore, whether the EPA was arbitrary or
capricious in approving TCEQ’s exclusion of August 31 under its weight of
evidence analysis. We conclude that it was not. While this court has yet to
consider a similar circumstance where the EPA has declined to include a date
in its attainment analysis because it is “atypical,” in Sierra Club v. EPA, 356
F.3d 296 (D.C. Cir 2004), the D.C. Circuit upheld a similar action by the EPA.
In that case, the D.C. Circuit not only approved the use of supplemental
statistical analysis to correct for over-predictions in modeling, it also concluded
that the EPA could exclude a day from the attainment analysis that presented
unusual conditions. Id. at 305. In that case, the EPA determined that the
excluded date was “too anomalous to demonstrate nonattainment” after finding
that the date was the “13th most severe ozone producing day in 44 years.” Id.
In upholding the EPA’s decision, the D.C. Circuit explained that this adjustment
merely accounted for a “base day that appear[ed] to be a statistical outlier.” Id.
at 306.
Similarly, here, the EPA explained that August 31 was excluded because
the temperature was a record high and the heat taken together with atypical
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No. 06-61030
wind patterns created an unusually high ozone level in the Houston area. 70
Fed. Reg. 58,125/1. Texas submitted the following analysis as weight of
evidence: August 31 rare meteorology; additional reductions that were not
modeled; comprehensive ozone metrics and ambient trends; alternative design
value and addressing short-term excursions; and unusual wildfire activity. 70
Fed. Reg. at 58,124/1. Based on this explanation and the substantial deference
given to the EPA on these issues, we are unable to conclude that the Agency was
unreasonable for allowing TCEQ to exclude August 31 during its application of
the weight of evidence analysis.
III.
GHASP argues that the changes to Texas’s control strategy approved in
the MCR SIP violate the non-interference language of Section 110(l) of the Clean
Air Act. In support of this contention, GHASP relies primarily on the fact that
the MCR SIP relaxed the controls on industrial NOx emissions from the 90
percent level established in the 2001 SIP to 80 percent and dropped four
requirements that had been included in the 2001 SIP including: (1) the
requirement for vehicle inspection and maintenance in three rural counties; (2)
restrictions on morning operations for commercial lawn services; (3) planned
reductions in speed limits; and (4) restrictions on idling for heavy duty diesel
vehicles. GHASP argues that these actions by themselves are sufficient to show
a violation of Section 110(l). CAA section 110(l) provides:
Each revision to an implementation plan submitted by
a State under this chapter shall be adopted by such
State after reasonable notice and public hearing. The
administrator shall not approve a revision of a plan if
the revision would interfere with an applicable
requirement concerning attainment and reasonable
further progress (as defined in section 7501 of this title)
or any other applicable requirement of this chapter.
42 U.S.C. § 7410(l).
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“Reasonable further progress” is defined by statute to mean “such annual
incremental reductions in emissions of the relevant air pollutant as are required
by this part or may reasonably be required by the Administrator for the purpose
of ensuring attainment of the applicable national ambient air quality standard
by the applicable date.” 42 U.S.C. at § 7501(1). Because the definition of
reasonable further progress is defined within the statute, the question of
whether the MCR SIP violates Section 110(l) turns on the meaning of “would
interfere.” The statute itself does not define “would interfere.” Because Congress
has not directly spoken on this issue, under Chevron step two we will defer to the
EPA’s interpretation unless it is arbitrary or capricious.
GHASP contends that the EPA must show that results under the MCR
SIP are better than results under the 2001 SIP to comply with Section 110(l).
However, nothing in the plain language of Section 110 (l) supports this
interpretation. The EPA and BCCA Appeal Group in its amicus brief, urge this
court to adopt the interpretation of interference accepted by the Sixth Circuit in
Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006), in which
that court held that the EPA may approve a SIP revision “unless the agency
finds it will make air quality worse.” According to the EPA, under Section
110(l), the EPA’s approval of Texas’s MCR SIP does not constitute interference
as long as the revisions to the SIP were properly substituted by new measures
that would offset the effect of those measures removed from MCR SIP. Thus,
changes to a SIP, either dropping measures or reducing measurement
requirements, are not by themselves sufficient to prove interference. Rather,
one must show that the substitute measures are not at least equivalent to the
previous measures in achieving attainment. We find the EPA’s interpretation
of Section 110(l) reasonable and thus refuse to substitute our judgment for that
of the Agency’s. This court need now determine only whether the EPA’s
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No. 06-61030
determination that the new measures would offset changes to the 2001 SIP are
also entitled to deference.
GHASP contends that the reduction in NOx controls from 90 percent to 80
percent and the removal of four requirements from the control strategy are
alone sufficient to demonstrate violation of Section 110(l)’s non-interference
language. Based on modeling, the EPA concluded that the reduction in NOx
controls and the removal of the four requirements were offset by the addition of
controls for HRVOCs. 71 Fed. Reg. 52,675. GHASP offers nothing to contradict
the EPA’s conclusion, rather it argues that this argument is not compelling
because the EPA should have required Texas to compare “how the 2001 SIP
controls compare with the MCR SIP controls in achieving the one-hour
standard.” However, again, GHASP provides no support for its claim that a
particular type of comparison must be made. Further, the statute does not
indicate any specific methodology which must be applied to determine
interference. The record shows that the EPA based its non-interference
determination on modeling based on the 2001 SIP control strategy as compared
to the MCR SIP. 71 Fed. Reg. At 52,689/1 (explaining that “the noninterference
modeling included the control strategies listed in the December 2000 SIP
together with updated inventories and updated methodologies utilizing the 2000
episode.”). Because the EPA’s scientific determinations are entitled to deference,
and the Agency’s approval of the MCR SIP was based on modeling supporting
this determination, its conclusions are not arbitrary or capricious. See BCCA,
355 F.3d at 833-34.
Finally, GHASP argues that under the MCR SIP, Texas fares worse with
regard to the eight-hour strategy than it did under the 2001 SIP. GHASP
correctly points out that analysis of the eight-hour standard showed that a
number of monitors showed higher ozone levels under the MCR SIP than under
the SIP. 71 Fed. Reg. 52,688. However, even in light of this fact, the EPA
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determined that overall, the new strategy performed better under the eight-hour
standard. 71 Fed. Reg. At 52,689/1. In support of this, the EPA noted that two
of the three ozone metrics showed improvement under the new strategy. Id.
This scientific determination is reasonable and entitled to deference.
IV.
Section 307(f) of the CAA provides that in a proceeding for judicial review
of an emission standard promulgated under the Act, a court may award
reasonable attorney’s fees “whenever it determines that such an award is
appropriate.” Having denied GHASP’s petition for review, we have no choice but
to deny its request for costs and attorneys’ fees. Ruckelshaus v. Sierra Club, 463
U.S. 680, 694 (1983) (holding that “absent some degree of success on the merits
by the claimant, it is not ‘appropriate’ for a federal court to award attorney’s fees
under § 307(f)”).
CONCLUSION
For the foregoing reasons, GHASP’s petition for review is denied and its
request for costs and attorneys’ fees is also denied.
16