United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 26, 1999 Decided January 4, 2000
No. 98-1561
American Petroleum Institute and
National Petrochemical & Refiners Association,
Petitioners
v.
U.S. Environmental Protection Agency and
Carol M. Browner, Administrator,
U.S. Environmental Protection Agency,
Respondents
Valero Energy Corporation,
Intervenor
On Petition for Review of an Order of the
Environmental Protection Agency
Michael F. McBride argued the cause for petitioners.
With him on the briefs were Bruce W. Neely, G. William
Frick, John E. Reese and Maurice H. McBride.
Mary F. Edgar, Attorney, U.S. Department of Justice,
argued the cause for respondents. With her on the brief was
Lois J. Schiffer, Assistant Attorney General, and John T.
Hannon, Attorney, Office of General Counsel, U.S. Environ-
mental Protection Agency. Christopher S. Vaden, Attorney,
U.S. Department of Justice, entered an appearance.
Sam Kalen and Howard Bleichfeld were on the brief for
intervenor.
Before: Silberman, Williams and Randolph, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge: Automobile engines emit volatile
organic compounds ("VOCs"), which together with nitrogen
oxides ("NOX") form ozone. Reformulated gasoline ("RFG")
can reduce VOCs emissions compared to levels associated
with ordinary gasoline; but it costs more, and there is some
concern about the nation's current RFG production capacity.
See 42 U.S.C. s 7545(k)(6)(B) (1994) (creating special provi-
sions that operate in the event of insufficient capacity). In
guiding the efforts of the Environmental Protection Agency
to limit ozone concentrations, Congress in the Clean Air Act
(the "Act") authorized limited reliance on RFG. It directed
that RFG should initially be mandatory in the nine worst
ozone areas with populations over 250,000, with any area later
classified as "Severe" to be added as well. See 42 U.S.C.
s 7545(k)(1), (5), (10)(D). And it also provided for "opt-in,"
i.e., for election by a state to demand an EPA ban on the sale
of non-RFG in specified areas. But Congress carefully limit-
ed the eligible areas:
Upon the application of the Governor of a State, the
Administrator shall apply the prohibition [on the sale of
non-reformulated gasoline] in any area in the State clas-
sified ... as a Marginal, Moderate, Serious, or Severe
Area....
Act s 211(k)(6)(A), 42 U.S.C. s 7545(k)(6)(A) (emphasis add-
ed). There is a fifth category, "Extreme," to which only Los
Angeles belongs; there was no need to include that category
because it was automatically covered by Congress's direct
mandate.
Apart from Los Angeles, most areas of the United States
that are not in "attainment" for EPA's ozone standards
belong to one of the four specified categories. But for several
reasons--mainly the interaction between Congress's (1) rules
limiting the ability of a nonattainment area to break into the
broad sunlit uplands of attainment, and (2) provisions govern-
ing the treatment of missing data--an area may be in "nonat-
tainment" but not in any of the four specified classes. In
interpreting the opt-in provision EPA decided that Congress
meant to include not only "Marginal, Moderate, Serious, or
Severe" areas, but also any other areas that either were
currently out of attainment or had ever been. The American
Petroleum Institute ("API") has petitioned for review of the
rule, arguing that the agency exceeded its statutory authori-
ty; we agree.
* * *
The Act requires EPA to establish and periodically revise a
primary national ambient air quality standard ("NAAQS") for
each air pollutant that the agency identifies as meeting
certain criteria. See 42 U.S.C. ss 7408-7409. The primary
NAAQS for each pollutant is the maximum concentration
"requisite to protect the public health" with "an adequate
margin of safety." 42 U.S.C. s 7409(b)(1). In 1979 the EPA
administrator set a primary NAAQS for ozone at 0.120 parts
per million ("ppm"), averaged over intervals of one hour. See
44 Fed. Reg. 8202. That level was upheld by this court in
American Petroleum Inst. v. Costle, 665 F.2d 1176 (D.C. Cir.
1981), and remains in effect today.1
__________
1 In 1997 the EPA adopted a revised ozone NAAQS of 0.08 ppm
averaged over an eight-hour period. See 62 Fed. Reg. 38,856
(1997). But in American Trucking Ass'ns v. EPA, 175 F.3d 1027,
1038 (D.C. Cir 1999) ("ATA"), modified on reh'g, 195 F.3d 4 (D.C.
Cir. 1999), we granted a petition for review of that order and
remanded to the EPA with instructions to provide an intelligible
principle guiding its interpretation of the relevant sections of the
In approaching this case the most critical distinction is
between "nonattainment" and "design value" as measures of
compliance. A maximum concentration, without more, leaves
open the question of how often an area's hourly reading can
exceed 0.120 ppm without causing the area to be out of
compliance. Congress adopted EPA's answer to this ques-
tion. It decreed, "by operation of law," that each area's
attainment status would be based on the regulatory standards
"in effect immediately before November 15, 1990." 42 U.S.C.
s 7407(d)(1)(C). Under those standards (also still in effect),
an area is allowed no more than one day a year in which its
maximum hourly ozone concentration is greater than 0.120
ppm. But the exact formula is more complicated because it
recognizes that many areas will not have data for every hour
of the year; it therefore uses estimates to fill this gap. See
40 CFR pt. 50, App. H. The formula generates an "expected
number of days per calendar year with maximum hourly
average concentrations above 0.12 parts per million," id.
s 50.9(a), and if the expected number of exceedances for a
three-year period is greater than one, the area is in nonat-
tainment.
In 1990 Congress also introduced, for ozone, a refinement
based on how far each nonattainment area was from attain-
ment status, establishing different dates for compliance ac-
cording to the severity of the existing violations. See 42
U.S.C. s 7511(a)(1). To group areas according to the various
deadlines, Congress used a concept already in use by EPA,
known as "design value," and once again adopted EPA's
method for calculating this number. See id. ("The design
value shall be calculated according to the interpretation meth-
odology issued by the Administrator most recently before
November 15, 1990."). Much like the calculation of attain-
ment, EPA's method for determining design values also ex-
cuses one exceedance per year (e.g., the first three excee-
dances in a three-year period have no effect on the design
value). But it has no mechanism for generating data to fill
__________
Act. See ATA, 175 F.3d at 1038-40. Thus, the 0.12 ppm, 1-hour
standard remains in place.
gaps in monitoring: Here, the design value is simply the
fourth-highest daily maximum ozone concentration in an area
over three consecutive years for which there are sufficient
data. See American Trucking Ass'ns v. EPA, 175 F.3d 1027,
1046 n.6 (D.C. Cir. 1999) ("ATA"), modified on reh'g, 195 F.3d
4 (D.C. Cir. 1999); EPA, The Clean Air Act Ozone Design
Value Study: Final Report 1-3 to 1-5 (1994).
In s 181(a)(1) of the Act Congress used design value to
create five categories of nonattainment, with varying compli-
ance deadlines for each category:
Marginal 0.121 to 0.138 ppm
Moderate 0.138 to 0.160 ppm
Serious 0.160 to 0.180 ppm
Severe 0.180 to 0.280 ppm
Extreme 0.280 ppm and above
See 42 U.S.C. s 7511(a)(1) tbl.1. But because Congress
treated missing data differently for purposes of design value
and attainment status, while every area with a known design
value above 0.120 ppm is in nonattainment, an area may be in
nonattainment even though its design value is 0.120 ppm or
below. EPA called such areas "submarginal." See 56 Fed.
Reg. at 56,697/2 (1991).
Similarly, s 107(d)(1)(C)(i) of the Act, 42 U.S.C.
s 7407(d)(1)(C)(i), requires areas designated nonattainment
under portions of the previous standards, see 42 U.S.C.
s 7407(d)(1)(C) (adopting provisions of the Clean Air Act
Amendments of 1977, s 103, Pub. L. No. 95-95, 91 Stat. 685,
687-88), to remain so classified because of inadequate data.
EPA called such areas "incomplete data areas." 56 Fed. Reg.
at 56,697/3; cf. 42 U.S.C. s 7511e (allowing areas that can
demonstrate compliance with the ozone NAAQS for the years
1987-89 to have a special, "transitional," status).
The key issue here is the application of the RFG program
to these two types of areas, "submarginal" and "incomplete
data."
* * *
In the disputed rule, EPA stated that any "area currently
or previously designated as a nonattainment area for ozone
under 40 CFR 50.9 ... or any time later, may be included on
petition of the governor." 40 CFR s 80.70(k); 63 Fed. Reg.
at 52,104. Largely because of the divergence between the
concepts of nonattainment and design value, this rule swept
into "opt-in" a variety of areas not belonging to the four
categories specified by Congress--Marginal, Moderate, Seri-
ous or Severe. We assess the validity of the rule under the
familiar two-step process in Chevron U.S.A. Inc. v. NRDC,
467 U.S. 837, 842-43 & nn.9 & 11 (1984).
Chevron requires us to determine whether Congress spoke
"to the precise question at issue." Id. at 842. It is hard to
imagine how Congress could have done so more clearly.
Acting within a universe where nonattainment and the four
categories overlap but are distinct, Congress chose the four
categories. If it meant to express "nonattainment," its word-
ing was not merely a long-winded but a positively obtuse way
of doing so. As we said in Michigan Citizens for an Inde-
pendent Press v. Thornburgh, 868 F.2d 1285 (D.C. Cir.), aff'd
by an equally divided court, 493 U.S. 38, 39 (1989), if Con-
gress makes an explicit provision for apples, oranges and
bananas, it is most unlikely to have meant grapefruit. Id. at
1293.
Despite the text, EPA argues that the scope of s 211(k)(6)
is ambiguous, thus opening the door to "reasonable" interpre-
tations by EPA. It notes that s 181(a)(1) of the Act states
that "[e]ach area designated nonattainment for ozone ...
shall be classified at the time of such designation ... as a
Marginal Area, a Moderate Area, a Serious Area, a Severe
Area, or an Extreme Area based on the design value for the
area." 42 U.S.C. s 7511(a)(1). From this it infers that,
despite the different methods for calculating design value and
attainment status, Congress thought that no nonattainment
area would be classified as other than Marginal, Moderate,
Serious, Severe, or Extreme, and thus the reference to the
first four categories in s 211(k)(6) was Congress's way of
making the RFG program available to all nonattainment
areas. Because s 211(k)(6) does not prohibit the inclusion of
nonattainment areas with design values below 0.121 or areas
whose design values are unknown, EPA argues, it is at least
ambiguous as to whether they may join.
EPA seems to think that the possibility that Congress was
unaware of the nonattainment-design value divergence sug-
gests that, had it been aware, it might have wanted EPA to
allow nonattainment areas with incomplete data or design
values below 0.121 ppm to require RFG. There are two
problems here: the assumption of congressional ignorance is
farfetched, and even if correct would not get EPA where it
wants to go.
In the normal case Congress is assumed to be conscious of
what it has done, especially when it chooses between two
available terms that might have been included in the provi-
sion in question. See BFP v. Resolution Trust Corp., 511
U.S. 531, 537 (1994) ("[I]t is generally presumed that Con-
gress acts intentionally and purposely when it includes partic-
ular language in one section of a statute but omits it in
another."). Sometimes (e.g., where the pieces of legislation
are not closely linked in either codification or time of enact-
ment) this assumption may be a stretch, justifiable in part
because its effect is to push toward coherent interpretations
of law. See West Virginia Univ. Hosps., Inc. v. Casey, 499
U.S. 83, 100 (1991). But here the assumption that Congress
was aware of the law is sound: the divergence between
nonattainment and design value is the direct product of
distinctive definitions explicitly adopted by Congress. To
suppose that Congress was ignorant of the divergence is to
impute sleepwalking to the legislators.
We have already explained how Congress expressly
adopted differing formulae. These formulae generate the two
problematic categories at issue here. First, as we recognized
in ATA, the stringent criteria for changing an area's designa-
tion from nonattainment to attainment ensures that there can
and will be nonattainment areas with design values below
0.121 ppm (submarginal areas). ATA, 175 F.3d at 1047; 42
U.S.C. s 7407(d)(3)(E) (noting that an area cannot be redesig-
nated to attainment status until it shows compliance with the
relevant NAAQS and that the improvement in air quality is
due to permanent and enforceable reductions in emissions).
Second, "incomplete data areas" have no hope of leaving
nonattainment until they generate enough data to prove that
they comply with the ozone NAAQS. See id. Thus, they
must remain in nonattainment, but can secure the RFG
option if they generate data placing them in the four congres-
sionally specified categories. Quite sensibly, the literal read-
ing of s 211(k)(6)(A) provides RFG as an option when the
need is clear, and only then.
But even the ignorance assumption, were it true, would not
support EPA's inference. Having used words of art to
describe areas eligible for opt-in, a hypothetically ignorant
Congress would likely have assumed that if some areas
turned up partly resembling the areas it specified--areas out
of attainment but less clearly so--they would not be subject
to RFG in the absence of new congressional action. More
specifically, even if Congress had thought that, as of 1990, all
nonattainment areas under the 0.120 ozone NAAQS would
have a recorded design value of at least 0.121 ppm, it knew
that the formula for nonattainment status (unlike the fixed
values for design value) was likely to change over time. EPA
has a continuing obligation to review and revise the NAAQS
every five years, see 42 U.S.C. s 7409(d)(1); ATA, 175 F.3d
at 1049, and to redesignate attainment status accordingly, see
42 U.S.C. s 7407(d)(1)(B). In ATA, we noted that Congress
had locked the categories of s 181(a)(1) into place, presum-
ably to avoid having its ozone enforcement scheme adminis-
tratively overridden by EPA as a result of such revision. 175
F.3d at 1049-50. The same is true here. By basing the opt-
in provisions in s 211(k)(6) on the statutorily imposed catego-
ries in s 181(a)(1), Congress could limit the scope of the RFG
program to areas that clearly fall within the categories of its
choosing.2
__________
2 In the rulemaking the EPA expressed its belief that areas in
nonattainment for the new, more stringent ozone NAAQS, would be
On this record we are reluctant even to mention the
legislative history. "[W]e do not resort to legislative history
to cloud a statutory text that is clear." Ratzlaf v. United
States, 510 U.S. 135, 147-48 (1994); see also Sutton v. United
Air Lines, Inc., 119 S. Ct. 2139, 2146 (1999); United States v.
Bost, 87 F.3d 1333, 1336 (D.C. Cir. 1996). But it scarcely
helps EPA. The conference report observed, "States could
elect to have the [RFG] requirements apply in other cities
with ozone pollution problems." H.R. Conf. Rep. No.
101-952, at 336, reprinted in 1 A Legislative History of the
Clean Air Act Amendments of 1990, at 1449, 1786 (1993)
[hereinafter Leg. Hist.]. But this is said simply to distinguish
the statute's mandate of RFG for specified regions, and
certainly does not claim that every other city with any ozone
pollution would qualify for opt-in. The floor debates add little
clarity. True, there are statements of the authors of the
provision in question, and sponsors of the amendments gener-
ally, to the effect that "any" or "all" non-mandated ozone
nonattainment areas could join the RFG program; but none
shows enough attention to the problem presented here to
overcome the plain language of the text. See Senate Debate
on the Clean Air Act Amendments of 1990 Conference Re-
port, reprinted in 1 Leg. Hist. at 731, 1024; House Debate on
the Clean Air Act Amendments of 1990 Conference Report,
reprinted in 1 Leg. Hist. at 1177, 1266; House Debate on
H.R. 3030, reprinted in 2 Leg. Hist. at 2667, 2690. Interest-
ingly, all the statements contain inaccuracies on another
issue, asserting that the area makes the election, not the state
or governor, a position with no support in the statute. The
colloquial language of debate is at best a rough guide to the
intricacies of technical statutory wording.
Similarly, the Senate and House committee reports that list
the likely classification of nonattainment areas under
s 181(a)(1) do not show that Congress meant to base RFG
__________
allowed to opt into the RFG program. See 63 Fed. Reg. 52,094,
52,101 (1998). The issue is temporarily moot in the light of ATA,
but on its face such a claim seems even less well-founded than
EPA's core position.
participation on attainment status. Both lists classify the
areas according to their design values. The Senate list does
not even mention attainment status, and is thus no evidence
at all of congressional determination that it should control.
See S. Rep. No. 101-228, at 35-37 (1989), reprinted in 5 Leg.
Hist. at 8375-77. Nor does the House Report speak of
nonattainment. It uses the looser term "areas violating the
ozone NAAQS" and then lists areas by design value. H. Rep.
No. 101-490, at 230-32, reprinted in 2 Leg. Hist. at 3254-56.
EPA would have us believe that the list demonstrates accep-
tance of its view that Congress really meant nonattainment
because the table includes two areas, Jacksonville, FL and
Waldo Co., ME, as likely to be classified as marginal areas
despite their design values of only 0.120 ppm. But the likely
explanation is that the compiler mistakenly thought that
because 0.120 was the cut-off point for "Marginal," an area
with exactly that reading should be so classified. Moreover,
these lists can shed no light on the proper classification of
areas that lack sufficient data to calculate a design value or
even to confirm their nonattainment status.
EPA next argues that even if the text is clear, this case
presents one of the rare instances "in which the literal
application of a statute will produce a result demonstrably at
odds with the intentions of its drafters." R.G. Johnson Co. v.
Apfel, 172 F.3d 890, 895 (D.C. Cir. 1999) (internal quotations
omitted). The agency appears to find absurdity because
under the direct reading of the statute it denies opt-in to
some areas with "continuing ozone problems." But the argu-
ment assumes away all trade-offs. Given the acknowledged
cost and supply drawbacks associated with RFG, it seems
entirely sensible to confine opt-in to areas experiencing non-
attainment with the comparative clarity implied by belonging
to one of the four specified categories. We see no absurdity.
EPA offers a special argument under which it could reach
back into history to allow opt-in for an area that once was--
but is no longer--classified as Marginal, Moderate, Serious,
or Severe. The statute allows opt-in for "any area in the
State classified ... as a Marginal, Moderate, Serious, or
Severe Area." As a matter of sheer linguistic possibility,
either of two explicit phrases could be understood to precede
the word "classified": it could read (1) "any area in the state
[that is presently] classified ... as a Marginal, Moderate,
Serious, or Severe Area," or (2) "any area in the state [that
has ever been] classified as a Marginal, Moderate, Serious, or
Severe Area." EPA favors the second reading, but it seems
utterly implausible. If an area is in attainment, its historical
design value has no relationship to its need for RFG. If it is
in nonattainment, but lacks sufficient data to be classified
under s 181(a)(1), then RFG will be an option if, in the
process of generating sufficient data to prove itself in attain-
ment, it is shown to have a design value of 0.121 ppm or
above. See 42 U.S.C. s 7407(d)(3)(E).
In s 211(k)(6) Congress provided for opt-in only for areas
classified as Marginal, Moderate, Serious or Severe. It
meant what it said. Accordingly, API's petition for review is
Granted.