concurring in part and dissenting in part:
I concur in the partial grant of rehearing with respect to enforcement of the revised ozone standard because, as modified, the opinion now leaves open the possibility that EPA can enforce the new ozone NAAQS without conflicting with Subpart 2’s classifications and attainment dates. While I too think that we have jurisdiction to decide the enforcement issue, I write separately because I do not entirely agree with the rationale of the modified panel opinion.
The panel understood EPA’s original position to be that, although Subpart 2 limited the Agency’s enforcement of the preexisting one-hour 0.12 ppm ozone NAAQS, it “has no effect upon the EPA’s authority to enforce a revised primary ozone NAAQS.” American Trucking Associations v. EPA, 175 F.3d 1027, 1048 (“ATA”). That interpretation, the panel held, not only conflicted with section 7511(a)(l)’s text and legislative history, see id., 175 F.3d at 1048-49, but by leaving the Agency free to “requir[e] areas to comply either more quickly or with a more stringent ozone NAAQS,” it defied Congress’s clear intent to “extend[ ] the time for non-attainment areas to comply with the 0.12 ppm ozone NAAQS.” Id. at 1049.
Having rejected the Agency’s interpretation, the panel went on to agree with petitioners that Subpart 2 embodies “a comprehensive enforcement scheme” that “specifically provides classifications and dates for all areas designated nonattainment under any ozone NAAQS.” Id. at 1049,1048 (emphasis added). This holding meant that areas not covered by Table 1 in Subpart 2 — i.e. those with one-hour ozone design values below 0.121 ppm — were completely exempt from any ozone regulation whatsoever. Although the panel acknowledged that EPA must continue to revise the NAAQS, see id. at 1047, it concluded that the revised standard “cannot be enforced by virtue of [Subpart 2].” Id. at 1057.
After reading EPA’s petition for rehearing and the various responses, I no longer believe that it was “the unambiguously expressed intent of Congress” to command EPA to revise the ozone standards, while denying it the power to enforce them. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694. Table 1 specifically provides classifications and attainment dates for some areas, but as EPA points out, “it establishes no attainment dates or classifications for nonat-tainment areas with ‘design values’ lower than 0.121 ppm.” EPA Pet. Reh’g at 22-23. As the Agency argues, it is thus difficult to see how Subpart 2 can “specifically provide[ ]” attainment dates for areas that are designated nonattainment under the new standard but are not covered by Table 1. See id. at 22-24. This gap in Table 1 makes it at least ambiguous whether Sub-part 2 “specifically provide[s]” classifications and attainment dates for all areas exceeding the revised 0.08 ppm ozone NAAQS.
EPA also points out that treating Sub-part 2 as the exclusive enforcement scheme for all areas leads to “irrational and contradictory consequences.” Id. at 23. Subpart 2 provides that “[e]ach area designated nonattainment for ozone pursuant to section 7407(d) of this title shall be classified ... under table 1, by operation of law....” 42 U.S.C. § 7511(a)(1). Even if the panel is correct that the reference to section 7407(d) includes designations under a revised NAAQS pursuant to section 7407(d)(1)(A), see Slip Op. on Reh’g at 9-10, the fact remains that the only “nonat-tainment areas for which classifications [and attainment dates] are specifically provided under” Table 1 are those having one-hour ozone design values of 0.121 ppm or greater. ATA, 175 F.3d at 1048 (quoting 42 U.S.C. § 7502(a)(1)(C), (a)(2)(D)). Classifying other areas “under table 1, by operation of law” is thus impossible or, at the very least, not “unambiguously” “specifically provided for.” And although, as the panel noted, “a title [of a statute or sec*12tion] cannot be allowed to create an ambiguity in the first place,” id., at 1050, the ambiguity in this statute — Can section 7511(a)(1) be applied literally to areas that have attained the old standard but fail to meet the new one? — appears in the text of Subpart 2 itself.
Moreover, EPA has offered a plausible interpretation of the statute that reasonably reconciles the provisions of Subparts 1 and 2. In its Petition for Rehearing, the Agency states that “Subpart 2 addresses continued nonattainment for the primary one-hour ozone standard,” EPA Pet. Reh’g at 20, while Subpart 1 provides implementation authority for the new ozone standard in areas that have already attained the old one, see id. at 20-22. The Agency articulated this same reading of the statute in its original brief, stating that “consistent with Congress’ intent, EPA interpreted the Subpart 2 provisions to remain in place for areas not attaining the one-hour standard, and concluded the one-hour standard should continue to apply until EPA determines that an area attains that standard, thus facilitating continued implementation of the relevant Subpart 2 measures.” EPA Ozone Brief at 72. The final rule-making — the Agency action we are reviewing here — is even clearer about the relationship between Subparts 1 and 2:
[A]t the time of the proposal of the new 03 standard, EPA had proposed an interpretation of the Act in the proposed Interim Implementation Policy (61 FR 65764, December 13, 1996) under which the provisions of subpart 2 of part D of Title I of the Act would not apply to existing 03 nonattainment areas once a new 03 standard becomes effective.
In light of comments received regarding the interpretation proposed in the Interim Implementation Policy, EPA has reconsidered that interpretation and now believes that the Act should be interpreted such that the provisions of subpart 2 continue to apply to 03 nonat-tainment areas for purposes of achieving attainment of the current 1-hour standard. As a consequence, the provisions of subpart 2, which govern implementation of the 1-hour 03 standard in 03 nonattainment areas, will continue to apply as a matter of law for so long as an area is not attaining the 1-hour standard. Once an area attains that standard, however, the purpose of the provisions of subpart 2 will have been achieved and those provisions will no longer apply. However, the provisions of subpart 1 of part D of Title I of the Act would apply to the implementation of the new 8-hour 03 standards.
To facilitate the implementation of those provisions and to ensure a smooth transition to the implementation of the new 8-hour standard, the 1-hour standard should remain applicable to areas that are not attaining the 1-hour standard. Therefore, the 1-hour standard will remain applicable to an area until EPA determines that it has attained the 1-hour standard, at which point the 1-hour standard will no longer apply to that area.
62 Fed.Reg. 88,873 (1997), cited in EPA Ozone Brief at 72. See also 40 C.F.R. § 50.9(b) (continuing to apply the one-hour 0.12 ppm standard until it is attained).
To be sure, EPA’s original brief did seem to advance the position the panel rejected — that in enforcing the new ozone NAAQS, the Agency is free to disregard altogether Subpart 2’s timetable. See EPA Ozone Brief at 69-71. Given the clarity of the final rule, however, I no longer believe that EPA actually intended to argue that it could subvert Subpart 2’s schedule in enforcing the new ozone NAAQS. When EPA’s lawyers said in the original brief that Subpart 2 is inapplicable to nonattainment areas under the new ozone standard, I assume they must have meant that even under the new standard, Subpart 2 continues to apply to areas covered by Table 1 — not that Subpart 2 no longer applies at all. Viewed this way, EPA’s original brief and its petition for rehearing are perfectly consistent with the *13final rule: all three interpret the Act to mean that Subpart 2 still applies to an area until it attains the one-hour 0.12 ppm standard. This interpretation puts to rest the panel’s concern that Subpart 2’s attainment schedule “would have been stillborn had the EPA revised the ozone NAAQS immediately after the Congress enacted the 1990 amendments.” ATA, 175 F.3d at 1050.
The Agency’s petition also explains the practical consequences of its interpretation of Subpart 2. Although EPA may not enforce a stricter ozone standard in Los Angeles earlier than the year 2012, see id. at 1049, the Agency need not wait for Los Angeles to achieve the old standard before requiring the rest of the country to move toward cleaner air. Cf. EPA Pet. Reh’g at 25 (suggesting that Los Angeles “is the only area of the nation” where compliance with the 0.08 ppm NAAQS under Subpart 1 could possibly be required at the same time as compliance with the 0.12 ppm NAAQS under Subpart 2). In other words, Table 1 functions as a safe harbor for areas like Los Angeles whose ozone levels exceed 0.121 ppm.
To sum up, the panel rejected what it was led to believe was EPA’s view that Subpart 2 applied only to nonattainment areas under the old standard but no longer applies at all under the new standard. The panel held instead that Subpart 2 applies to all nonattainment areas under any standard, foreclosing implementation of a new standard in any area not covered by Table 1. EPA has now clarified its interpretation of the Act. A middle ground originally articulated in its final rulemaking, the Agency’s position harmonizes its general enforcement authority under Subpart 1 with the specific provisions of Subpart 2. Subpart 2 continues to govern those areas covered by Table 1, just as it did under the old NAAQS, but in areas that have attained the old standard, nothing precludes enforcement of the new standard under Subpart 1.
I would have granted rehearing and held that the Agency’s position represents a reasonable interpretation of an ambiguous statute. See Chevron, 467 U.S. at 844, 104 S.Ct. 2778 (upholding EPA’s construction of NAAQS attainment provisions of the Clean Air Act, stating that “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”). I nonetheless concur in the judgment because the revised opinion’s statement that “the EPA can enforce a revised primary ozone NAAQS only in conformity with Subpart 2” leaves open the possibility that the new ozone standard can be implemented in areas that have attained the old standard.
For the reasons set forth in my statement dissenting from the denial of rehearing en banc, I respectfully dissent from the denial of rehearing as to Part I of the panel opinion (“Delegation”).