dissenting:
While the majority correctly describes EPA’s bifurcated compliance program as “unusual,” EPA sees the compliance mechanism as an innovative approach to implementing a congressional command. However it is styled, as judges, we cannot second guess EPA’s approach as long as the agency acted pursuant to statutory authority and did so reasonably. Here, EPA devised a reasonable approach to implement a reasonable interpretation of a congressional mandate to achieve “compliance as expeditiously as practicable.” Therefore, I would uphold the early cessation program as permissible under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and as a reasonable, lawful agency action.
I agree with the majority that section U2(i)(3)(A) vests EPA with the statutory authority to implement a bifurcated early cessation program. See Maj. Op. at 864-65. I also agree that EPA failed to substantiate its claim of health and environmental benefit associated with the implementation of the program. See id. at 865. I part company with the majority when it reads section 112(i)(3)(A) to require EPA to conduct an environmental impact analysis before ordering “compliance as expeditiously as practicable.” I accept the majority’s general premise that Congress intended the Clean Air Act, 42 U.S.C. § 7401 et seq. (1994), to further the goals of achieving environmental and health benefits. However, nowhere in section 112(i)(3)(A) does Congress order EPA to consider separately environmental or health benefits in carrying out the command to implement “compliance as expeditiously as practicable.” It thus would appear at least reasonable to conclude that Congress itself determined that the statutorily mandated action by EPA of requiring such compliance is in furtherance of the general goal of the statute, without the agency’s considering anew whether its specific acts also further general goals.
For the reasons set forth by the majority, tempered by Congress’s decision not to impose a regulation-specific requirement concerning environmental and health benefits, I agree that “section 112(i)(3)(A)’s requirement of ‘compliance as expeditiously as practicable’ can be read to provide authority for an early cessation program.” Maj. Op. at 864. Once that is said, I do not see that we have any other choice than to deny the petition for review and uphold the interpretation of EPA. This is precisely the teaching of Chevron. In Chevron itself, the Supreme Court reviewed a decision of this court setting aside an interpretation by EPA of a Clean Air Act provision in a fashion that did not in the view of this court advance the overall goals of the statutorily established program that EPA was administering. See Natural Resources Defense Council, Inc. v. Gorsuch, 685 F.2d 718, 727 (D.C.Cir.1982). In the landmark Chevron decision, the Supreme Court reversed, and established the overriding principle to which the majority pays lip service. In Chevron, the High Court emphasized that the sort of policy considerations inherent in decisions as to means of implementation “are more properly addressed to legislators or administrators, not to judges.” Chevron, 467 U.S. at 864, 104 S.Ct. 2778. Just so here. Where the interpretation by the agency otherwise survives the two-step analysis under Chev*869ron, I do not see how this court can strike that interpretation as unreasonable merely on the basis that it does not in our view advance the overriding policy of the statutory scheme.
True, Congress passed the Clean Air Act “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” 42 U.S.C. § 7401(b)(1); see Maj. Op. at 866. However, the Clean Air Act contains hundreds of specific commands to EPA from Congress. Some directives explicitly tell EPA to consider, inter alia, environmental impact, cost considerations, or technological feasibility. Others direct EPA to engage in managerial functions pursuant to the environmental, cost, technological, or other factors which prompted Congress to move EPA to action. Here, EPA created a rule to execute a managerial function established by statute. EPA did nothing to frustrate the Clean Air Act’s broader goal of promoting the health, welfare, or productivity of the public. We can ask no more.
Nor is American Petroleum Institute v. EPA 52 F.3d 1113 (D.C.Cir.1995), relied upon by petitioners to the contrary. Indeed, that decision supports the position of EPA, not that of the petitioners. In API, we considered a petition seeking review of EPA regulations promulgated pursuant to 42 U.S.C. § 7545(k)(1). That section, also part of the Clean Air Act, empowered EPA to “establish! ] requirements for reformulated gasoline to be used in gasoline-fueled vehicles in specified nonattainment areas.” 42 U.S.C. § 7545(k)(1). The statute mandated that the regulations were to be directed toward “the greatest reduction in emissions of ozone forming volatile organic compounds .... and emissions of toxic air pollutants ... achievable through the reformulation of conventional gasoline. ...” Id. EPA issued regulations directed toward achieving not only the specified statutory goals, but also toward an increase in the use of renewable resources — no doubt a laudable goal, but not one specified by Congress in the empowering Act. We granted the petition for review, and struck down the regulations, precisely because EPA had used its regulatory proceeding to pursue goals beyond those set forth in the empowering statute. Today, the majority vacates another set of EPA regulations because EPA did not pursue goals not specified by Congress in the empowering sections under which EPA operated, in the promulgation of the regulations. I am not suggesting that it would have been unreasonable for EPA to have considered the overall goals as urged by the majority, but I do not see how under Chevron analysis it is within our jurisdiction to demand that EPA pursue the general statutory goals. The majority embarks on a dangerous course by using 42 U.S.C. § 7401(b)(1) as the means for a court to act as a superlegislator and rewrite the Clean Air Act to impose substantive requirements on EPA — a course forbidden by the Supreme Court in Chevron.
Finding nothing illegal in EPA’s choice of means to implement “compliance as expeditiously as practicable,” I dissent.