Sierra Club v. EPA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2022 Decided August 26, 2022

No. 20-1121

SIERRA CLUB, ET AL.,
PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY AND MICHAEL S.
REGAN, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION
AGENCY,
RESPONDENTS

BCCA APPEAL GROUP, ET AL.,
INTERVENORS

On Petition for Review of Final Actions
of the Environmental Protection Agency

Seth L. Johnson argued the cause for petitioners. With him
on the briefs was Neil Gormley. Adam M. Kron entered an
appearance.

Meghan E. Greenfield, Senior Counsel, U.S. Department
of Justice, argued the cause for respondents. On the brief were
Todd Kim, Assistant Attorney General, and Alan D. Greenberg,
Attorney.
 2
Aaron M. Streett argued the cause for intervenors. With
him on the brief were Matthew L. Kuryla, Ken Paxton,
Attorney General, Office of the Attorney General for the State
of Texas, Priscilla M. Hubenak, Chief, Environmental
Protection Division, and Linda B. Secord and John R. Hulme,
Assistant Attorneys General.

Before: SRINIVASAN, Chief Judge, TATEL* and KATSAS,
Circuit Judges.

Opinion for the court filed by Chief Judge SRINIVASAN.

SRINIVASAN, Chief Judge: Under the Clean Air Act, areas
failing to attain the Environmental Protection Agency’s
national ambient air quality standards must implement
measures aimed to achieve and maintain compliance. In 2020,
EPA issued two rules lifting certain of those measures in the
Houston and Dallas areas. Sierra Club and other environmental
groups challenge those rules in a petition for review filed in our
court.

We cannot reach the merits of their challenge because of a
threshold bar against our consideration of the petition. Under
the Clean Air Act’s venue provision, 42 U.S.C. § 7607(b)(1),
venue over the petition would lie in our court only if the
challenged rules are nationally (as opposed to locally or
regionally) applicable or if EPA finds that the rules are based
on a determination of nationwide scope or effect and publishes
that finding. Because neither of those conditions is satisfied,
the petition must be brought in the United States Court of

*
Judge Tatel, who assumed senior status after this case was
argued and before the date of this opinion, recused himself from the
case after oral argument.
 3
Appeals for the Fifth Circuit. We thus transfer the petition to
that court.

I.

A.

The Clean Air Act directs EPA to establish national
ambient air quality standards (NAAQS) for certain airborne
pollutants “the attainment and maintenance of which . . . are
requisite to protect the public health.” 42 U.S.C. §§ 7408(a),
7409(b)(1). EPA must review and revise the NAAQS every
five years “as may be appropriate” under the statute. Id.
§ 7409(d)(1).

Once EPA sets the standards, the states are responsible for
implementing them. To do so, each state must adopt a state
implementation plan (SIP) specifying the state’s chosen
methods of achieving and maintaining each NAAQS. Id.
§§ 7407, 7410. Each state also must submit its SIP (and any
later revisions) to EPA for approval. Id. § 7410(a)(1), (k).

As part of the implementation process, a state must
designate all areas within its borders as “attainment” or
“nonattainment” (or “unclassifiable”) as to each pollutant. Id.
§ 7407(d). SIPs for nonattainment areas must include emission
reduction measures designed to bring the areas into compliance
with the NAAQS. Id. § 7502(c)(1), (6). Once EPA approves
a nonattainment designation for a particular area, it can be
redesignated to attainment only upon satisfaction of five
statutory conditions, including approval by the agency of a
“maintenance plan” assuring that the area will continue to meet
the NAAQS for at least ten years. Id. § 7407(d)(3)(E); see id.
§ 7505a(a).
 4
In 1990, Congress amended the Act “in favor of more
comprehensive regulation” of pollutants “particularly injurious
to public health.” S. Coast Air Quality Mgmt. Dist. v. EPA, 472
F.3d 882, 887 (D.C. Cir. 2006) (South Coast I). One of those
pollutants was ozone. The 1990 amendments adopted a
“graduated classification scheme” for ozone nonattainment
areas dictating “mandatory controls that each state must
incorporate into its SIP.” Id. Under that scheme, areas that fail
to meet attainment deadlines face increasingly strict sets of
mandatory controls, which eventually include a requirement to
impose a fee program for major stationary sources of ozone.
See 42 U.S.C. § 7511d.

The 1990 amendments also enacted an anti-backsliding
provision that applies if EPA relaxes a NAAQS as part of its
five-year review. In that event, EPA must require areas yet to
attain the previous, stricter standard to implement “controls
which are not less stringent than the controls applicable to areas
designated nonattainment before such relaxation.” Id.
§ 7502(e).

B.

In 1997, EPA adopted stricter NAAQS for ozone.
National Ambient Air Quality Standards for Ozone, 62 Fed.
Reg. 38,856 (July 18, 1997). The agency later adopted an
implementation rule that, among other things, construed the
Act’s anti-backsliding provision to apply not only when EPA
relaxes a NAAQS but also when it strengthens one. Final Rule
to Implement the 8-Hour Ozone National Ambient Air Quality
Standard—Phase 1, 69 Fed. Reg. 23,951, 23,972 (Apr. 30,
2004). EPA reasoned that if Congress desired to maintain
existing controls when a NAAQS is relaxed, Congress also
must have intended to maintain such controls when a NAAQS
 5
is strengthened. Id. This court sustained EPA’s interpretation.
South Coast I, 472 F.3d at 900.

EPA’s next major action on ozone came in 2008, when it
again strengthened the ozone NAAQS. National Ambient Air
Quality Standards for Ozone, 73 Fed. Reg. 16,436 (Mar. 27,
2008). In its implementation rule, the agency provided for
three procedures by which areas designated nonattainment
under the now-revoked 1997 NAAQS could shed anti-
backsliding requirements associated with that standard.
Implementation of the 2008 National Ambient Air Quality
Standards for Ozone: State Implementation Plan
Requirements, 80 Fed. Reg. 12,264, 12,301–05 (Mar. 6, 2015).
On judicial review, we rejected two of the procedures because
they would have allowed for termination of anti-backsliding
obligations even if the relevant area failed to meet all five
statutory criteria for redesignation from nonattainment to
attainment. S. Coast Air Quality Mgmt. Dist. v. EPA, 882 F.3d
1138, 1149, 1152 (D.C. Cir. 2018) (South Coast II). One of the
rejected procedures would have established a so-called
“redesignation substitute,” under which an area could qualify
for removal of anti-backsliding controls tied to the revoked
1997 NAAQS without satisfying all five statutory criteria for
redesignation. See 80 Fed. Reg. at 12,304–05.

C.

After our decision in South Coast II, EPA published final
rules lifting ozone anti-backsliding requirements for the
Houston and Dallas nonattainment areas. See Air Plan
Approval; Texas; Houston-Galveston-Brazoria Area
Redesignation and Maintenance Plan for Revoked Ozone
National Ambient Air Quality Standards; Section 185 Fee
Program, 85 Fed. Reg. 8,411 (Feb. 14, 2020); Air Plan
Approval; Texas; Dallas-Fort Worth Area Redesignation and
 6
Maintenance Plan for Revoked Ozone National Ambient Air
Quality Standards, 85 Fed. Reg. 19,096 (Apr. 6, 2020). Both
of those rules approved revisions to Texas’s SIP.

In the rules, EPA conceived a new “redesignation
substitute” in place of the one this court had vacated in South
Coast II. Under the substitute, anti-backsliding controls for a
revoked (e.g. 1997) standard may be terminated as long as an
area meets the five statutory redesignation criteria with respect
to that revoked standard, even if the area has not achieved
attainment under the current (e.g. 2008) standard or fulfilled
the redesignation criteria associated with that standard. 85 Fed.
Reg. at 8,411, 8,413–14; 85 Fed. Reg. at 19,097–98. Applying
that approach, EPA terminated the Houston and Dallas areas’
anti-backsliding obligations associated with now-revoked
ozone standards. 85 Fed. Reg. at 8,411, 8,413–14; 85 Fed. Reg.
at 19,097–98. In addition, the rules approved maintenance
plans for both areas designed to ensure their continued
compliance with the revoked NAAQS. 85 Fed. Reg. at 8,424;
85 Fed. Reg. at 19,107. Finally, EPA approved a fee program
for Houston. 85 Fed. Reg. at 8,412 (citing 42 U.S.C.
§ 7407(d)(3)(E)(v)).

Sierra Club, Downwinders At Risk, and Texas
Environmental Justice Advocacy Services (collectively, Sierra
Club) petitioned for review of the rules. The petition contends
that EPA’s terminations of Houston’s and Dallas’s anti-
backsliding requirements violate the agency’s regulations and
the Clean Air Act. Sierra Club also contemporaneously filed a
protective petition for review in the Fifth Circuit, which is
holding that petition in abeyance pending the outcome here.
See Sierra Club v. EPA, No. 20-60303 (5th Cir. Apr. 16, 2020).

In 2021, following the change in presidential
administration, we granted EPA’s motion to hold this case in
 7
abeyance while it reviewed the challenged rules. EPA
subsequently announced its intention to continue defending the
rules in substantial part, except for the approval of Houston’s
fee program. We then returned the case to the active docket
(and we also granted EPA’s unopposed motion for remand
without vacatur as to its approval of the Houston fee program).

II.

Sierra Club challenges EPA’s decisions to lift anti-
backsliding requirements in Houston and Dallas. EPA
responds that the proper—and exclusive—venue for Sierra
Club’s challenge is the Fifth Circuit. We agree with EPA.

The Clean Air Act’s venue provision states, in relevant
part:

A petition for review of action of the Administrator in
promulgating any national primary or secondary ambient
air quality standard . . . or any other nationally applicable
regulations promulgated, or final action taken, by the
Administrator under this chapter may be filed only in the
United States Court of Appeals for the District of
Columbia. A petition for review of the Administrator’s
action in approving or promulgating any implementation
plan under section 7410 of this title . . . or any other final
action of the Administrator under this chapter . . . which is
locally or regionally applicable may be filed only in the
United States Court of Appeals for the appropriate circuit.
Notwithstanding the preceding sentence a petition for
review of any action referred to in such sentence may be
filed only in the United States Court of Appeals for the
District of Columbia if such action is based on a
determination of nationwide scope or effect and if in taking
such action the Administrator finds and publishes that such
action is based on such a determination.
 8
42 U.S.C. § 7607(b)(1) (emphases added).

The provision thus establishes two routes by which venue
may be proper in this court. See Chevron U.S.A. Inc. v. EPA,
No. 21-1140 (D.C. Cir. Aug. 12, 2022), slip op. at 10–11;
Sierra Club v. EPA, 926 F.3d 844, 849 (D.C. Cir. 2019); Am.
Rd. & Transp. Builders Ass’n v. EPA, 705 F.3d 453, 455 (D.C.
Cir. 2013). First, this court is the exclusive venue when EPA’s
challenged action is “nationally applicable” rather than “locally
or regionally applicable.” 42 U.S.C. § 7607(b)(1). Second,
and alternatively, venue also lies exclusively in this court if an
otherwise “locally or regionally applicable” action “is based on
a determination of nationwide scope or effect” and EPA “finds
and publishes that such action is based on such a
determination.” Id. Neither route applies here.

A.

First, the challenged rules are locally or regionally
applicable, not nationally applicable. To determine whether a
rule promulgated under the Clean Air Act is nationally
applicable, the court “need look only to the face of the agency
action, not its practical effects.” Sierra Club, 926 F.3d at 849;
see Chevron, slip op. at 11. The textbook example of nationally
applicable action by the EPA, as the venue statute itself
specifies, is the promulgation of a NAAQS—i.e., a “national
primary or secondary ambient air quality standard.” 42 U.S.C.
§ 7607(b)(1) (emphasis added). The rules challenged here, by
contrast, on their face apply only to Houston and Dallas.

The Houston rule accordingly is titled: “Air Plan
Approval; Texas; Houston-Galveston-Brazoria Area
Redesignation and Maintenance Plan for Revoked Ozone
National Ambient Air Quality Standards; Section 185 Fee
Program.” 85 Fed. Reg. at 8,411. And in keeping with the
geographic focus of its title, the rule explains that it “pertain[s]
 9
to the Houston-Galveston-Brazoria (HGB) area”; that “EPA is
approving the plan for maintaining the . . . ozone NAAQS
through the year 2032 in the HGB area”; that “EPA is
determining that the HGB area continues to attain the
[revoked] ozone NAAQS and has met the five [Clean Air Act]
criteria for redesignation” with respect to those revoked
standards; and that “EPA is terminating all anti-backsliding
obligations for the HGB area for the . . . 1997 ozone NAAQS.”
Id. (emphases added). The Dallas rule contains a parallel—and
equally localized—title and description of its provisions, this
time for “the Dallas-Fort Worth (DFW) area.” 85 Fed. Reg. at
19,096.

In short, the challenged rules approve maintenance plans,
determine that certain statutory redesignation criteria are
satisfied, and terminate anti-backsliding requirements for—
and only for—the Houston and Dallas areas. Those are the
hallmarks of a locally or regionally applicable action, not a
nationally applicable one. See Chevron, slip op. at 11–12;
Sierra Club, 926 F.3d at 849.

What is more, the venue statute expressly provides that
EPA’s action “in approving or promulgating any
implementation plan under section 7410 of this title”—i.e., in
approving or promulgating a SIP—is “a locally or regionally
applicable” action. See 42 U.S.C. § 7607(b)(1). Indeed, that
action is “the prototypical ‘locally or regionally applicable’
action.” Am. Rd. & Transp. Builders Ass’n, 705 F.3d at 455
(emphasis added). That is understandable, as a SIP by nature
concerns a particular state. And here, tellingly, the challenged
rules take the form of approved revisions to Texas’s SIP.

The proposed rules thus begin by stating that EPA is
“proposing to approve a revision to the Texas State
Implementation Plan (SIP).” Air Plan Approval; Texas;
 10
Houston-Galveston-Brazoria Area Redesignation and
Maintenance Plan for Revoked Ozone National Ambient Air
Quality Standards; Section 185 Fee Program, 84 Fed. Reg.
22,093, 22,093 (May 16, 2019) (Houston); Air Plan Approval;
Texas; Dallas-Fort Worth Area Redesignation and
Maintenance Plan for Revoked Ozone National Ambient Air
Quality Standards, 84 Fed. Reg. 29,471, 29,471 (June 24, 2019)
(Dallas). And the final rules correspondingly specify at their
outset that EPA “is approving revisions to the Texas State
Implementation Plan (SIP).” 85 Fed. Reg. at 8,411; 85 Fed.
Reg. at 19,096. The fact that the rules constitute SIP revisions
reconfirms their fundamentally local or regional character.

In response, Sierra Club maintains that the rules are
nationally applicable because they rest on interpretations of the
Clean Air Act having no geographic limitation. In particular,
Sierra Club emphasizes, EPA announced a new understanding
of its authority to terminate anti-backsliding obligations in
broad terms lacking any evident limitation to the Houston and
Dallas areas. As we recently explained, however, “many
locally or regionally applicable actions may require
interpretation of the Clean Air Act’s statutory terms, and that
kind of interpretive exercise alone does not transform a locally
applicable action into a nationally applicable one.” Chevron,
slip op. at 13. The fact that EPA’s “interpretative reasoning”
may have “precedential effect in future EPA proceedings . . .
does not make it nationally applicable.” Id. (citations and
quotation marks omitted); see Sierra Club, 926 F.3d at 850;
Am. Rd. & Transp. Builders Ass’n, 705 F.3d at 456.

Sierra Club further argues that EPA’s approach in the
challenged rules, by allowing an area to shed anti-backsliding
requirements based on a new conception of a permissible
“redesignation substitute,” effectively amends the agency’s
national implementation regulations. And an amendment of
 11
national regulations, Sierra Club posits, is itself a nationally
applicable action. The challenged rules, however, do not
purport to amend EPA’s implementation regulations. And to
the extent EPA were to apply the same approach in subsequent
actions, “it will be subject to judicial review upon challenge.”
Sierra Club, 926 F.3d at 849. The “immediate effect” of the
rules is confined to Houston and Dallas, rendering them locally
or regionally applicable. See id.; see also Dalton Trucking, Inc.
v. U.S. EPA, 808 F.3d 875, 880–81 (D.C. Cir. 2015).

B.

Even if the challenged rules are locally or regionally
applicable, recall that the venue statute provides an alternate
pathway under which venue still lies solely in this court.
Specifically, venue in this court is exclusive if locally or
regionally applicable action (i) “is based on a determination of
nationwide scope or effect,” and (ii) EPA “finds and publishes
that such action is based on such a determination.” 42 U.S.C.
§ 7607(b)(1). Both of those prongs must be met for venue to
lie here under the alternate route.

Here, however, all agree that as to the second prong, EPA
never made and published a finding that the challenged rules in
this case were based on a determination of nationwide scope or
effect. According to Sierra Club, though, the agency’s failure
to do so was arbitrary and capricious and we should so
conclude. In that event, Sierra Club submits, venue would
properly lie here.

We have never decided whether EPA’s failure to make and
publish a finding of nationwide scope or effect is subject to
judicial review. On two previous occasions, we assumed
without deciding that review is available, and concluded that in
any event, EPA’s refusal to make a determination of
nationwide scope or effect was not arbitrary and capricious in
 12
light of the factual circumstances. See Sierra Club, 926 F.3d
at 850; Am. Rd. & Transp. Builders Ass’n, 705 F.3d at 456.

We now resolve the question we have thus far left
unanswered. We hold, in agreement with the only other court
of appeals to decide the issue, that EPA’s decision whether to
make and publish a finding of nationwide scope or effect is
committed to the agency’s discretion and thus is unreviewable.
See Texas v. U.S. EPA, 983 F.3d 826, 834–35 (5th Cir. 2020).
As a result, we need not determine whether the rules here were
based on a determination of nationwide scope or effect.

The Supreme Court has “long applied a strong
presumption favoring judicial review of administrative action.”
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361,
370 (2018) (quoting Mach Mining, LLC v. EEOC, 575 U.S.
480, 489 (2015)). The Administrative Procedure Act, though,
codifies the traditional exception that agency action is
unreviewable when it is “committed to agency discretion by
law.” 5 U.S.C. § 701(a)(2). That exception applies when “the
statute is drawn so that a court would have no meaningful
standard against which to judge the agency’s exercise of
discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985).
Agency action, then, is unreviewable when “courts have no
legal norms pursuant to which to evaluate the challenged
action, and thus no concrete limitations to impose on the
agency’s exercise of discretion.” Physicians for Social
Responsibility v. Wheeler, 956 F.3d 634, 643 (D.C. Cir. 2020)
(quoting Sec’y of Lab. v. Twentymile Coal Co., 456 F.3d 151,
156 (D.C. Cir. 2006)).

That is the case here. We have no meaningful standard
against which to judge EPA’s exercise of discretion to make
and publish (or not) a finding of nationwide scope or effect.
 13
The relevant statutory text provides that venue lies in this
court if locally or regionally applicable action “is based on a
determination of nationwide scope or effect and if in taking
such action the Administrator finds and publishes that such
action is based on such a determination.” 42 U.S.C.
§ 7607(b)(1) (emphasis added). The statute makes clear that
the requirement that EPA make and publish a finding is distinct
from the requirement that the action be based on a
determination of nationwide scope or effect. Were EPA bound
to make and publish a finding whenever the challenged action
is based on a determination of nationwide scope or effect, the
two prongs would collapse into one, rendering the second
prong meaningless.

Because the two prongs are distinct, the first prong
(whether the action is based on a determination of nationwide
scope or effect) cannot itself offer the “meaningful standard
against which to judge” EPA’s exercise of discretion on the
second prong (whether to make and publish a finding to that
effect). Chaney, 470 U.S. at 830. Nor does the Act supply any
other standard—much less a meaningful one—for evaluating
EPA’s decision on the second prong. The statute, in other
words, contains nothing “constrain[ing] the [agency’s]
authority” in that regard. Dep’t of Com. v. New York, 139 S. Ct.
2551, 2568 (2019).

That understanding coheres with the broader framework of
the Clean Air Act’s judicial review scheme. Under the Act,
venue for challenges to nationally applicable action lies
exclusively in the D.C. Circuit. Review of locally or regionally
applicable action based on local or regional determinations, by
contrast, must be had in the appropriate regional circuit. That
leaves the intermediate category of locally or regionally
applicable actions that are based on a determination of
nationwide scope or effect. For review of action in that middle
 14
category, Congress settled on a different approach: it entrusted
EPA with discretion to determine the proper venue as the
agency sees fit. In deciding whether to make and publish a
finding of nationwide scope or effect—and thus to direct
review to this court, as opposed to a regional circuit—EPA may
weigh any number of considerations. The Act offers “no basis
on which a reviewing court could properly assess” the agency’s
discretionary decision. Webster v. Doe, 486 U.S. 592, 600
(1988).

We thus join the Fifth Circuit in holding that EPA’s
decision whether to make and publish a finding of nationwide
scope or effect is committed to agency discretion by law. See
Texas, 983 F.3d at 834–35. A court may review whether an
action by EPA is nationally applicable, as well as whether
locally or regionally applicable action is based on a
determination of nationwide scope or effect when EPA so finds
and publishes. But a court may not “second-guess” the
agency’s discretionary decision to make and publish (or not) a
finding of nationwide scope or effect. Id. at 835.

* * * * *

For the foregoing reasons, venue in this matter lies
exclusively in the Fifth Circuit, not this court. Rather than
dismiss the petition, we grant Sierra Club’s unopposed request
to transfer it to the Fifth Circuit. See Alexander v. Comm’r,
825 F.2d 499, 502 (D.C. Cir. 1987) (per curiam).

So ordered.