United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 4, 2002 Decided July 2, 2002
Nos. 01-1070 & 01-1158
Sierra Club, Petitioner
v.
Environmental Protection Agency and
Christine Todd Whitman, Administrator
Respondents
On Petitions for Review of an Order of the
Environmental Protection Agency
David S. Baron argued the cause for petitioner. With him
on the briefs was Howard I. Fox.
Martin F. McDermott, Attorney, U.S. Department of Jus-
tice, argued the cause for respondents. With him on the brief
were John C. Cruden, Assistant Attorney General, and Sara
Schneeberg, Attorney, U.S. Environmental Protection Agen-
cy. David A. Carson, Attorney, U.S. Department of Justice,
entered an appearance.
Thurbert E. Baker, Attorney General, State of Georgia,
Patricia T. Barmeyer, Special Assistant Attorney General,
Jeremiah W. (Jay) Nixon, Attorney General, State of Mis-
souri, James R. Layton, Solicitor, James E. Ryan, Attorney
General, State of Illinois, A. Benjamin Goldgar, Assistant
Attorney General, and Donald Trahan were on the brief for
amici curiae State of Georgia, et al., in support of respon-
dent. Katherine L. Rhyne entered an appearance.
Randolph A. Beales, Attorney General, Commonwealth of
Virginia, Roger L. Chaffe, Senior Assistant Attorney General,
and Carl Josephson, Assistant Attorney General, were on the
brief for amicus curiae Commonwealth of Virginia, in support
of respondent.
Albert M. Ferlo, Jr., Sheila D. Jones, and John J. Bosley
were on the brief for amicus curiae Metropolitan Washington
Air Quality Committee, in support of respondent.
Before: Ginsburg, Chief Judge, Edwards and Sentelle,
Circuit Judges.
Opinion for the Court filed by Chief Judge Ginsburg.
Ginsburg, Chief Judge: The Sierra Club petitions for re-
view of a decision by the Environmental Protection Agency
approving revisions to the state implementation plans for
ozone in the Washington, D.C. Metropolitan Area. The Club
contends the EPA was without authority to approve revised
SIPs that extend the Area's deadline for attainment and do
not provide for the States concerned to adopt reasonably
available control measures, annual rates of progress in reduc-
ing emissions, and specific contingency measures to take
effect should the Area fail to achieve scheduled reductions in
emissions.
We hold that the EPA exceeded its authority and that its
decision is otherwise arbitrary and capricious in the above
respects. Therefore, we grant the petition and remand this
matter to the EPA for further proceedings.
I. Background
Section 109 of the Clean Air Act directs the EPA to
promulgate National Ambient Air Quality Standards
(NAAQS) for ozone, see 42 U.S.C. s 7409, and Title V of the
Act delegates to the states primary responsibility for imple-
menting those standards, see id. ss 7407, 7410. A state
discharges this responsibility by developing and enacting a
state implementation plan (SIP) that provides for "implemen-
tation, maintenance, and enforcement" of the standards in
each "air quality control region" within its jurisdiction, sub-
ject to the EPA's approval and supervision. Id. s 7410(a)(1).
If an area "does not meet the NAAQS or it contributes to
ambient air quality in a nearby area that does not meet the
NAAQS," then the EPA designates the area as one of "nonat-
tainment," id. s 7407(d)(1)(A), and classifies the degree of
nonattainment in the area as marginal, moderate, serious,
severe, or extreme, see id. s 7511(a), (b)(2). This classifica-
tion determines both the date by which the area must attain
the NAAQS and the stringency of the measures that the area
must implement in the meantime to reduce emissions of
volatile organic compounds (VOCs) and oxides of nitrogen
(NOx), both of which are the precursors of ozone. See id.
s 7511(a).
All states were required to revise their SIPs to bring any
areas of "serious" nonattainment into attainment "as expedi-
tiously as practicable but not later than" November 15, 1999.
Id. ss 7511(a)(1), 7511a(c)(2)(A). The Act specifies that a
revised SIP must contain certain elements, including: "the
implementation of all reasonably available control measures
[RACM]," id. s 7502(c)(1); annual demonstrations of "reason-
able further progress," id. s 7502(c)(2), defined--with an
exception not here relevant--as a reduction in the emission of
VOCs at a rate of "at least 3 percent of baseline emissions
each year," id. s 7511a(c)(2)(B)(i); and contingency measures
"to be undertaken if the area fails to make reasonable further
progress, or to attain" the NAAQS by November 15, 1999, id.
s 7502(c)(9). The states were required to submit the revised
SIPs to the EPA for approval, which the Agency was re-
quired to grant if the "revision [met] all the requirements ...
[and] would be adequate to attain and maintain the [NAAQS]
by the attainment date specified." Id. s 7509a(a)(1), (2).
An area of serious nonattainment that failed to reach
attainment by the deadline was to be reclassified by operation
of law to "severe" nonattainment status. See id.
s 7511(b)(2)(i). The deadline for attainment would then be
extended until November 15, 2005, see id. s 7511(a)(1), but
the area would be required again to revise its SIP to imple-
ment still more rigorous programs for monitoring and reduc-
ing emissions, see id. s 7511(b)(2)(A)(i).
The Washington, D.C. Metropolitan Area comprises the
District of Columbia and several counties each in Maryland
and Virginia. In 1991 the EPA declared the Washington
Area to be in "serious" nonattainment of the NAAQS for
ozone. See Designation of Areas for Air Quality Planning
Purposes, 56 Fed. Reg. 56,694, 56,738, 56,772, 56,841 (Nov. 6,
1991) (codified respectively at 40 C.F.R. ss 81.309, .321, .347
(2002)). In response, the District of Columbia Department of
Health, the Maryland Department of the Environment, and
the Virginia Department of Environmental Quality (hereinaf-
ter referred to as "the States") submitted nonattainment
SIPs for the Washington Area, see Approval & Promulgation
of Air Quality Implementation Plans, 66 Fed. Reg. 586 (Jan.
3, 2001) (Approval), pursuant to section 172(b) of the Act, 42
U.S.C. s 7502(b).
The three proposed SIPs did not provide for attainment by
November 15, 1999. See Proposed Rule, Approval & Promul-
gation of Air Quality Implementation Plans, 64 Fed. Reg.
70,460, 70,476-77 (Dec. 16, 1999) (Proposed Approval). In-
stead, the States requested that the EPA extend the attain-
ment deadline for the Washington Area until November 15,
2005 without reclassifying as "severe" the nonattainment
status of the Area. See id. The EPA previously had recog-
nized that for certain "downwind areas, transport [of ozone]
from upwind areas ha[d] interfered with their ability to
demonstrate attainment" by the deadlines established in the
Act. Extension of Attainment Dates for Downwind Trans-
port Areas, 64 Fed. Reg. 14,441, 14,442 (Mar. 25, 1999). As a
result, according to the EPA, many downwind areas "fac[ed]
the prospect of being reclassified ... to a higher nonattain-
ment classification in spite of the fact that pollution that is
beyond their control contributes to the levels of ozone they
experience." Id. With this in mind, the Agency granted the
States' request for an extension, see Approval, 66 Fed. Reg.
at 630-31, determining that the transport of ozone and its
precursors into the Washington Area could delay the date by
which the Area would reach attainment, id.
The States did not propose in their revised SIPs to adopt
any RACM, and the EPA concluded that none was warranted
because "additional emission control measures would not ad-
vance the attainment date." Id. at 608/1. Nor did the
revised SIPs provide for annual rates of progress (ROP) in
reducing emissions for the years after 1999, see id. at 603; or
for any contingency measures "to make up for any emission
reduction shortfall, either in achievement of ROP milestones
or for failure to attain" the NAAQS, see id. at 615/2. The
EPA determined that these omissions, too, were warranted.
It deemed the ROP requirement "unreasonable" in light of
the transport of ozone into the Washington Area, id. at 603/2,
and it held that contingency measures are not mandatory
elements of a SIP revision that establishes the attainment
deadline and ROP for an area, see id. at 615/3. Consequent-
ly, the Agency approved the revised SIPs.
The Sierra Club now petitions for review of that decision.
Amicus briefs have been filed by the Metropolitan Washing-
ton Air Quality Committee, the State of Virginia, and the
States of Georgia, Illinois, Louisiana, and Missouri, all in
support of the EPA's decision approving the revised SIPs.
II. Analysis
The Sierra Club claims that the Approval is unlawful for
four reasons: (1) the EPA had no authority to extend the
attainment deadline for the Washington Area; (2) the EPA
applied an unreasonable standard for determining whether a
control measure is "reasonably available" for purposes of
s 172(c)(2) of the Act; (3) the Act prohibits the EPA from
approving a SIP that does not provide for ROP reductions;
and (4) the Act prohibits the EPA from approving a SIP that
does not include contingency measures.
We review the EPA's interpretation of the Clean Air Act
under the standards set out in Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). If the
Congress "has directly spoken to the precise question at
issue," id. at 842, then we must "give effect to [its] unambigu-
ously expressed intent," id. at 843. If, however, the intent of
the Congress is ambiguous with respect to the question
before us, then we defer to the Agency's interpretation if it is
"based on a permissible construction of the statute." Id.
A. Extension of the Attainment Deadline
We agree with the Sierra Club that the plain terms of the
Act preclude an extension of the sort the EPA granted here.
Pursuant to s 181(a)(1), 42 U.S.C. s 7511(a)(1), "each" area of
"serious" nonattainment was required to meet the NAAQS by
November 15, 1999. That deadline could be extended in
certain limited circumstances or when an area was reclassi-
fied as one of "severe" nonattainment. Id. s 7511(b)(2)(i), (3).
In this case, the EPA neither determined that the Washing-
ton Area fit those limited circumstances nor acknowledged
that the Area was reclassified as "severe."
The EPA characterizes the issue before the court as fol-
lows: "whether an attainment date extension is available
without an accompanying reclassification to 'severe' nonat-
tainment status where the Washington area's ability to attain
has been demonstrably compromised by upwind emissions
outside its control." Fair enough, but as the Sierra Club
points out, the Act details the conditions in which the EPA
may extend the attainment deadline, without reclassification,
to account for upwind emissions that compromise an area's
ability to come into attainment, and none of them is implicat-
ed here. For example, the Act exempts from the attainment
deadlines any area that would be in attainment "but for
emissions emanating from outside of the United States," 42
U.S.C. s 7509a(b); and "an[y] ozone nonattainment area that
does not include, and is not adjacent to, any part of a
Metropolitan Statistical Area," id. s 7511a(h)(1), provided the
"emissions within the area do not make a significant contribu-
tion to the ozone concentrations measured in the area or in
other areas," id. s 7511a(h)(2). We cannot but infer from the
presence of these specific exemptions that the absence of any
other exemption for the transport of ozone was deliberate,
and that the Agency's attempt to grant such a dispensation is
contrary to the intent of the Congress.
The EPA also contends the Approval "falls within this
Court's parameters for when it will look beyond a 'literal'
reading of a statute," but the Agency does not show that this
is one of those "rare cases [in which] the literal application of
a statute will produce a result demonstrably at odds with the
intentions of its drafters." Engine Mfrs. Ass'n v. EPA, 88
F.3d 1075, 1088 (D.C. Cir. 1996). Because our "role is not to
'correct' the text so that it better serves the statute's pur-
poses," id., we will not "ratify an interpretation that abro-
gates the enacted statutory text absent an extraordinarily
convincing justification," Appalachian Power Co. v. EPA, 249
F.3d 1032, 1041 (D.C. Cir. 2001). Here the EPA asserts that
"[a]s a matter of 'logic and statutory structure,' Congress
'almost surely' could not have meant to require" the Agency
to treat the Washington Area as one of severe nonattainment
merely because its "attainment has been temporarily stalled
due to transported pollution." This assurance does nothing
to persuade us that, although s 181(a)(1), 42 U.S.C.
s 7511(a)(1), as written sets a deadline without an exception
for setbacks owing to ozone transport, "all the other evidence
from the statute points the other way," United States Nat'l
Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S.
439, 455 (1993); see also Engine Mfrs., 88 F.3d at 1088
("there must be evidence that Congress meant something
other than what it literally said before a court can depart
from plain meaning").
We reject also the EPA's argument that we must accept its
interpretation of the Act in order to give effect to the
"broader congressional intent not to punish downwind areas
affected by ozone transport." The most reliable guide to
congressional intent is the legislation the Congress enacted
and, as we have seen, the Act itself reveals no intention to
allow for an extension in circumstances like those affecting
the Washington Area. Similarly, it is of no moment that the
extension may be, as the Agency claims, "a reasonable accom-
modation of ... the statutory attainment date and interstate
transport provisions"; it is not the accommodation the Con-
gress made. An agency may not disregard "the Congression-
al intent clearly expressed in the text simply by asserting
that its preferred approach would be better policy." Engine
Mfrs., 88 F.3d at 1089.
Finally, the EPA argues that our decision in Natural Res.
Def. Council, Inc. v. EPA, 22 F.3d 1125, 1135 (D.C. Cir. 1994),
approving its extension of the deadlines by which states had
to submit elements of their SIPs, compels a similar result in
this case. Although we upheld the EPA's decision in that
case to extend the deadline for compliance with a procedural
requirement of the Act, the Agency's failure to meet its own
deadline for providing guidance to the states necessitated that
we do so, see id., 22 F.3d at 1135 ("The agency's failure to
meet its November 15, 1991 deadline ... made it impossible
for states ... to meet their November 15, 1992 ... submis-
sion deadline"). In extending another procedural deadline
under similar circumstances, we since have emphasized the
importance that "the attainment deadlines remain intact,
complete with additional program obligations in the event of
nonattainment, irrespective of a state's dereliction of the SIP
process," NRDC v. Browner, 57 F.3d 1122, 1127 (D.C. Cir.
1995). Unlike the various deadlines by which the states must
submit proposals, the attainment deadlines are "central to the
... regulatory scheme and ... leave[ ] no room for claims of
technological or economic infeasibility." Union Elec. Co. v.
EPA, 427 U.S. 246, 258 (1976).
In sum, to permit an extension of the sort urged by the
EPA would subvert the purposes of the Act. Cf. NRDC v.
Browner, 57 F.3d at 1128 (extension of procedural deadline
"not incompatible with the multi-faceted statutory scheme as
a whole"). Therefore, we hold that the EPA was without
authority in the Act or in our precedent to extend the
attainment deadline for the Washington Area.
B. Reasonably Available Countermeasures
Section 172(c)(1) of the Act directs that a state's revised
SIP "shall provide for the implementation of all reasonably
available control measures [RACM] as expeditiously as prac-
ticable." 42 U.S.C. s 7502(c)(1). As the EPA has interpret-
ed s 172(c)(1), a state must "consider all potentially available
measures to determine whether they [a]re reasonably avail-
able for implementation in the area, and whether they would
advance the [area's] attainment date." Approval, 66 Fed.
Reg. at 607/3. The state may "reject measures as not being
RACM," however, if "they would not advance the attainment
date, would cause substantial widespread and long-term ad-
verse impacts, or would be economically or technologically
infeasible." Id. at 608/1.
The proposed revisions to the SIPs for the Washington
Area "contained no measures adopted for the sole purpose of
satisfying the RACM requirement," id. at 609/3, so the EPA
reviewed on its own initiative all control measures that could
qualify as RACM under its definition, see id. at 607/3. After
considering "all potential categories of stationary and mobile
sources that could provide additional emission reduction," id.
at 611/2, the EPA "concluded that additional emission control
measures would not advance the attainment date and there-
fore do not constitute RACM," id. at 608/1.
The Sierra Club maintains that treating as potential RACM
only those measures that would advance the date at which an
area reaches attainment "conflicts with the Act's text and
purpose and lacks any rational basis." This is a misreading
of both text and context.
The Act, on its face, neither elaborates upon which control
measures shall be deemed "reasonably available," nor com-
pels a state to consider whether any measure is "reasonably
available" without regard to whether it would expedite attain-
ment in the relevant area. Further, the EPA reasonably
concluded that because the Act "use[s] the same terminology
in conjunction with the RACM requirement" as it does in
requiring timely attainment, compare 42 U.S.C. s 7502(c)(1)
(requiring implementation of RACM "as expeditiously as
practicable but no later than" the applicable attainment dead-
line), with id. s 7511(a)(1) (requiring attainment under same
constraints), the RACM requirement is to be understood as a
means of meeting the deadline for attainment, Approval, 66
Fed. Reg. at 610/2. Because the statutory provision is ambig-
uous and the EPA's construction of the term "RACM" is
reasonable, we defer to the Agency. See Chevron, 467 U.S.
at 843.
The Sierra Club also claims it was unreasonable for the
EPA to reject certain measures as RACM on the ground that
they could not be implemented without "intensive and costly
effort." Far from erecting thereby an unreasonably "subjec-
tive and undefined" standard, as the Sierra Club argues, see
Pearson v. Shalala, 164 F.3d 650, 660-61 (D.C. Cir. 1999), the
EPA here did no more than give familiar content to an
insufficiently specified concept. The Congress's choice of the
phrase "reasonably available" clearly bespeaks its intention
that the EPA exercise discretion in determining which control
measures must be implemented, and neither that phrase nor
any other in s 172(c)(1) suggests that the Congress intended
to preclude the EPA, in so doing, from considering the costs
of its decisions. Compare Natural Res. Def. Council, Inc. v.
EPA, 824 F.2d 1146, 1157 (D.C. Cir. 1987) (en banc) (rejecting
"position that, as a matter of statutory interpretation, cost
and technological feasibility may never be considered under
the Clean Air Act unless Congress expressly so provides"),
with Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 465
(2001) (cost considerations precluded when statute "instructs
the EPA to set primary ambient air quality standards 'the
attainment and maintenance of which ... are requisite to
protect the public health' with 'an adequate margin of safe-
ty' ") (quoting 42 U.S.C. s 7409(b)(1)).
That the EPA's definition of RACM is valid does not end
the matter, however; as the Sierra Club points out, the
Agency failed to consider whether any particular measures
fell within that definition. In its Proposed Approval, the
EPA noted that "measures ... such as retrofitting diesel
trucks and buses, and controlling ground service equipment
at airports [could] ... if taken together ... provide signifi-
cant emission reductions for attainment purposes." 64 Fed.
Reg. at 70,468. The EPA made no mention of these mea-
sures or measures like them, however, either in its analysis of
potential RACM for the Washington Area or in the Approval
document. This omission--whether the result of inadver-
tence or of an unexplained change of course--renders the
EPA's decision arbitrary and capricious. See Motor Vehicle
Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
57 (1983) ("an agency changing its course must supply a
reasoned analysis"). Consequently, we must invalidate the
Approval of the revised SIPs and remand this matter to the
EPA to determine which measures, if any, are RACM to be
implemented by the States in this case.
C. Rate of Progress Reductions
The Sierra Club argues next that the EPA could not
approve the SIPs for the Washington Area because the plans
fail to provide for rate of progress reductions for the years
after 1999. We agree.
The Act provides that revisions to a SIP for an area of
serious nonattainment must reduce the emission of VOCs by
"at least 3 percent of baseline emissions each year," unless
the EPA determines that a lesser reduction is called for "in
light of technological achievability." 42 U.S.C.
s 7511a(c)(2)(B)(i), (ii). As the Sierra Club observes, there-
fore, with an attainment date in 2005, "the rate of progress
plan for the Washington area had to demonstrate a 9%
reduction in emissions from 1996 to 1999, another 9% from
1999 to 2002, and another 9% from 2002 to 2005." Yet the
SIPs provide for no reductions after 1999, and the EPA
approved the omission on the ground that "it would be
unreasonable to lock the downwind area into fixed progress
requirement reductions from local sources, when the combi-
nation of local reductions with upwind area source emission
reductions is what will bring the area into attainment." Ap-
proval, 66 Fed. Reg. at 603/2.
The EPA's reason is of no moment. The Act by its terms
makes the 3% annual minimum rate of progress a prerequi-
site for approval of a revised SIP. The EPA therefore had
no authority to approve the SIPs for the Washington Area
notwithstanding the omission of a rate of progress plan for
the years after 1999.
D. Contingency Measures
Finally, the Sierra Club argues that the absence of contin-
gency measures also precludes approval of the revised SIPs
for the Washington Area. Again, we agree.
Section 172(c)(9) of the Act requires that a revised SIP
include "specific measures to be undertaken if the area fails
to make reasonable further progress, or to attain the national
primary ambient air quality standard by the attainment
date." 42 U.S.C. s 7502(c)(9); see also id. s 7511a(c)(9)
(revised SIP for area of serious nonattainment "shall provide
for the implementation of specific measures to be undertaken
if the area fails to meet any applicable milestone"). The EPA
maintains that "contingency measures are required as part of
the overall nonattainment plan, not as a feature of each
component of that plan." Compare 42 U.S.C. s 7502(c)(9)
("plan shall provide for the implementation" of contingency
measures), with, e.g., id. s 7502(c)(1) ("plan provisions shall
provide" for implementation of RACM). Therefore, says the
EPA, it lawfully could approve the revised provisions of the
SIPs for the Washington Area despite the absence of contin-
gency measures therein.
The answer to the EPA's argument is, as the Sierra Club
points out, to be found in s 172(c), which lists the elements
that must be included in a revised SIP for an area in
nonattainment. That section specifically declares:
The plan provisions (including plan items) required to
be submitted under this part shall comply with the
following: ...
(9) Contingency measures
Such plan shall provide for the implementation of
specific measures to be undertaken if the area fails to
make reasonable further progress, or to attain the na-
tional primary ambient air quality standard by the at-
tainment date applicable under this part. Such measures
shall be included in the plan revision as contingency
measures to take effect in any such case without further
action by the State or the Administrator.
Id. s 7502(c); see also id. s 7511a(c)(9) (requiring that con-
tingency measures "be included in the plan revision" for area
of serious nonattainment).
As can be seen from the statute itself, the EPA simply errs
in suggesting that a state need not include contingency
measures in the revisions to the SIP it submits for an area of
nonattainment. For this reason, too, the EPA lacked authori-
ty to approve the revised SIPs submitted by the States in this
case.
III. Conclusion
For the foregoing reasons, the EPA's approval of the
revised SIPs for the Washington Metropolitan Area is vacat-
ed, and this matter is remanded to the Agency for further
consideration.
So ordered.