United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 3, 2000 Decided July 25, 2000
No. 99-1236
Chemical Manufacturers Association and
Cement Kiln Recycling Coalition,
Petitioners
v.
Environmental Protection Agency,
Respondent
Environmental Technology Council, Inc.,
Intervenor
Consolidated with
99-1514
On Petitions for Review of an Order of the
Environmental Protection Agency
Richard G. Stoll argued the cause for petitioners. With
him on the briefs were David F. Zoll, Ronald A. Shipley,
Michael W. Steinberg, Joshua D. Sarnoff and David P.
Novello.
Christopher S. Vaden, Attorney, U.S. Department of Jus-
tice, argued the cause for respondent. With him on the brief
were Peter D. Coppelman, Acting Assistant Attorney Gener-
al, and Steven E. Silverman, Attorney, Environmental Pro-
tection Agency.
David R. Case was on the brief for intervenor Environmen-
tal Technology Council, Inc.
Before: Williams, Sentelle and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Dissenting Opinion filed by Circuit Judge Sentelle.
Tatel, Circuit Judge: Petitioners challenge an Environ-
mental Protection Agency rule establishing an unusual bifur-
cated schedule for hazardous waste combustors to comply
with strict new emission standards. To meet the new stan-
dards, combustors must either modify existing facilities and
processes to bring emission levels below the new limits or
cease burning hazardous waste altogether. Combustors
electing to make the necessary changes have three years to
comply, but under EPA's "early cessation" program, combu-
stors that find it not cost-effective to make the required
modifications must cease burning hazardous waste within two
years. Although we reject petitioners' argument that EPA
lacks statutory authority to implement an early cessation
program, we vacate the rule because, as the Agency concedes,
it failed to establish that this particular early cessation pro-
gram, which imposes substantial costs on hazardous waste
combustors, will have any environmental or health benefits.
I.
Three types of businesses burn hazardous waste. Profes-
sional hazardous waste treatment and disposal companies
operate large commercial incinerators, charging fees to dis-
pose of hazardous wastes generated by their customers.
Some hazardous waste producers, such as chemical manufac-
turers, operate their own on-site incinerators to dispose of
waste generated in the manufacturing process. Cement man-
ufacturers operate kilns in which they occasionally supple-
ment the fossil fuels they burn with hazardous waste to
generate additional heat energy, to recover usable materials
from treated waste, and to earn additional revenue from
disposal fees. Petitioners Chemical Manufacturers Associa-
tion and Cement Kiln Recycling Coalition represent the latter
two types of hazardous waste combustors. Environmental
Technology Council, intervenor in support of EPA's rule,
represents commercial waste incinerators.
All three types of hazardous waste combustors are regulat-
ed by Subtitle C of the Resource Conservation and Recovery
Act ("RCRA"), 42 U.S.C. ss 6901 et seq., which "establishes a
comprehensive 'cradle-to-grave' regulatory program for the
treatment, storage, and disposal of hazardous waste." Horse-
head Resource Dev. Co. v. Browner, 16 F.3d 1246, 1252 (D.C.
Cir. 1994). Existing EPA standards, promulgated pursuant
to RCRA and upheld for the most part in Horsehead, require
hazardous waste combustors to operate under conditions suf-
ficient "to protect human health and the environment." 42
U.S.C. s 6924(a).
The Clean Air Act ("CAA"), 42 U.S.C. ss 7401 et seq.,
foregoing RCRA's risk-based approach in favor of technology-
based regulation, directs EPA to establish emission standards
for hazardous air pollutants based on the "maximum achiev-
able control technology" known as MACT. 42 U.S.C.
s 7412(g)(2). The EPA Administrator must list categories
and subcategories of hazardous air pollutant emissions
sources, then set MACT standards for each category at a
level
requir[ing] the maximum degree of reduction in emis-
sions of the hazardous air pollutants subject to this
section (including a prohibition on such emissions, where
achievable) that the Administrator, taking into consider-
ation the cost of achieving such emission reduction, and
any non-air quality health and environmental impacts
and energy requirements, determines is achievable for
new or existing sources in the category or subcategory to
which such emission standard applies.
42 U.S.C. s 7412(d)(2). Once EPA sets the emission stan-
dards, the Act, in language central to this case, requires the
Agency to establish a "compliance date or dates for each
category or subcategory of existing sources, which shall pro-
vide for compliance as expeditiously as practicable, but in no
event later than 3 years after the effective date of such
standard." 42 U.S.C. s 7412(i)(3)(A). Sources demonstrat-
ing a need for additional time to complete installation of
pollution control equipment qualify for a one-year extension.
42 U.S.C. s 7412(i)(3)(B).
Acting pursuant to RCRA and the Clean Air Act, EPA
promulgated revised emission standards for hazardous waste
combustors. See Revised Standards for Hazardous Waste
Combustors, 61 Fed. Reg. 17,358 (1996). In the original
notice of proposed rulemaking, EPA predicted that most
affected combustors would have to make substantial modifica-
tions to their equipment in order to reduce emissions to levels
mandated by the new standards. In order to allow sufficient
time for combustors to implement necessary modifications,
EPA proposed its usual three-year compliance period. Id. at
17,416.
The Agency recognized that because certain combustors,
namely kilns and on-site incinerators, burn hazardous waste
as an adjunct to their primary business, they might find it
more feasible to stop burning hazardous waste altogether
rather than invest in new pollution controls. Cement kilns
could switch to non-hazardous fuels, and operators of on-site
incinerators might find it more cost-effective to contract with
commercial hazardous waste incinerators. To "ensure that
only those facilities that plan to comply with the new regula-
tions are allowed to burn hazardous waste during the [three-
year] compliance period," id., EPA proposed an early cessa-
tion program under which kilns and on-site incinerators that
decide against making the improvements necessary to contin-
ue burning hazardous waste under the new standards would
be required to "immediately stop burning hazardous waste
when the owner or operator first determines that [compliance
will not be achieved] by the applicable date." Id.
After considering public comment, EPA adopted a final
rule requiring owners and operators of hazardous waste
combustion facilities to submit a Notification of Intent to
Comply, known as a "NIC," within a year of the new stan-
dards' effective date. See Hazardous Waste Combustors;
Revised Standards; Final Rule, 63 Fed. Reg. 33,782, 33,806-
09 (1998). Each combustor must indicate in the NIC whether
it plans to comply, i.e., whether it plans to continue burning
hazardous wastes under the new standards, and if so, what
emission-control measures it will take to ensure timely com-
pliance. Combustors indicating an intent to comply must file
a two-year Progress Report describing in detail all compli-
ance modifications planned and undertaken; they must com-
ply with the new standards within three years. Id. at 33,806.
Kilns and on-site incinerators that indicate an "intent not to
comply"--the focus of this case--must cease burning hazard-
ous waste within two years of the effective date. The Agency
explained the process as follows:
The source can use the NIC to notify either the source's
intent to come into compliance with the new standards,
or the source's intent not to come into compliance with
the new standards. The NIC must be submitted to the
permitting agency within a year of the final standards
being promulgated, and the Progress Report within two
years.
....
The NIC will not serve as a basis for requiring facilities
to cease burning hazardous waste if they intend to
comply with the emission standards of this Subpart....
EPA would like to clarify that its intent has never been
to shut a source down completely. The source might be
required to cease burning hazardous waste; however, it
would not be precluded from burning non-hazardous
waste or other alternative fuels. However, those sources
who indicate in the NIC their intent not to comply with
the applicable emission control requirements of this Sub-
part will be required to stop burning hazardous waste
within two years of the effective date of the emission
control requirements.
Id. at 33,806-07.
Until this rulemaking, EPA had always set a single compli-
ance date for each category of emission source; never before
had it required emission sources to choose between complying
or ceasing the regulated activity. Several commenters ob-
jected to the early cessation program, arguing that EPA lacks
statutory authority to impose such an unprecedented require-
ment. The Agency responded:
EPA believes that compliance as expeditiously as practi-
cable will have numerous benefits for human health and
the environment. In particular, for those sources that do
not intend to ultimately come into compliance with the
emission standards of this Subpart, expeditious compli-
ance would be achieved by ceasing to burn hazardous
waste. The Agency anticipates that numerous sources
will choose not to come into compliance with the require-
ments of this rule, and will cease burning hazardous
waste prior to issuance of the rule or at some later date,
but prior to the compliance date. This section is intend-
ed to expeditiously limit the burning of hazardous waste
by those sources who do not intend to come into compli-
ance with the requirements of the emission standards of
this Subpart, but continue to burn hazardous waste after
the effective date of the emission standards of this
Subpart. These sources are, quite simply, able to meet
the standards earlier than the three years allowed for
sources which will continue to burn hazardous waste.
Thus, for this class of facilities, EPA is creating a means
of compliance "as expeditiously as practicable."
Id. at 33,810.
Petitioners challenge the early cessation program, claiming
that although it imposes substantial costs, it will produce no
environmental benefits because hazardous waste currently
burned by kilns and on-site incinerators will simply be shifted
to commercial incinerators operating under the same emission
standards. Petitioners also contend that because CAA sec-
tion 112(i)(3), 42 U.S.C. s 7412(i)(3), requires EPA to set
compliance dates based on the technical feasibility of attain-
ing the MACT standards, once EPA set a three-year dead-
line, it had no authority to require earlier cessation. Finally,
petitioners challenge the Notice of Intent to Comply and the
two-year Progress Report filing requirements.
EPA, supported by intervenor Environmental Technology
Council, responds that because some sources will choose to
comply by ceasing to burn hazardous waste rather than
installing new pollution controls, and because that method of
compliance can be achieved well before the three-year compli-
ance date, early cessation is required by section 112(i)(3)(A)'s
"compliance as expeditiously as practicable" mandate. EPA
defends the NIC and Progress Report requirements as not
only critical to enforcing the early cessation rule, but also as
an important means of increasing public participation in
RCRA's permit modification process.
II.
We begin with Petitioners' argument that the early cessa-
tion program is arbitrary and capricious and exceeds EPA's
authority under the Clean Air Act. According to petitioners,
CAA section 112(i)(3)(A) requires EPA to set compliance
dates based only on "the technical ability of facilities to attain
timely compliance with the MACT standards." Once EPA
determined that combustors need three years to comply,
petitioners argue, then "no provision of the CAA provides any
support for (1) specifying early compliance dates based on
intentions to comply or (2) forcing facilities to cease burning
waste prior to the established compliance date."
This argument requires little discussion. Petitioners point
to nothing in either the CAA or RCRA that requires EPA to
set a single uniform compliance date for all combustors. In
fact, as the Agency points out, the CAA speaks in terms of
"compliance date or dates" and requires "compliance as expe-
ditiously as practicable, but in no event later than 3 years
after the effective date of such standard." 42 U.S.C.
7412(i)(3)(A) (emphasis added). Responding to this directive,
the Agency determined that combustors can achieve "compli-
ance" not just through installation of pollution controls, but
also through cessation of hazardous waste combustion. The
Agency also determined that cessation can be accomplished
more "expeditiously" than other compliance methods such as
pollution controls. "These sources are, quite simply, able to
meet the standards earlier than the three years allowed for
sources which will continue to burn hazardous waste." 63
Fed. Reg. at 33,810. Thus, the Agency argues, its early
cessation rule is just an alternative compliance date tailored
to an individual source's chosen method of compliance. "As a
practical matter," the Agency explains in its brief, the early
cessation rule simply "established two subcategories for com-
pliance purposes here: sources complying by ceasing to burn
hazardous wastes, and sources complying by other means
(adding air pollution control devices, adopting waste mini-
mization process changes, etc.)." Because EPA determined
that compliance by cessation requires less time than compli-
ance through installation of pollution controls, it in effect set
two different compliance dates depending on which route a
particular combustor elects to take.
Were there nothing more to this case, we would agree with
EPA 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. Indeed, at oral argument
petitioners conceded that even under their reading of the
CAA, EPA could accomplish precisely the same result by
setting the compliance date for all combustors at two years
rather than three and then granting one-year extensions to
combustors electing to comply by installing emission control
devices. See 42 U.S.C. 7412(i)(3)(B) (authorizing the Admin-
istrator to issue extension permits to sources "if such addi-
tional period is necessary for the installation of controls.")
But this case is not so simple. EPA claimed in the
rulemaking that its early cessation requirement would have
"numerous benefits for human health and the environment."
63 Fed. Reg. at 33,810. Yet as the Agency now acknowl-
edges, it neither pointed out what those benefits would be nor
explained how any such benefits might result from the early
cessation program. In issuing the rule, moreover, EPA
expressly recognized that the early cessation program would
result in hazardous waste being shifted away from kilns and
on-site incinerators that comply with existing RCRA stan-
dards but elect to cease burning hazardous waste rather than
meet the new MACT standards. During the year between
the early cessation and compliance dates, hazardous waste
will simply be redirected to other facilities to be burned under
essentially the same conditions.
Combustion systems that can no longer cover costs ...
are projected to stop burning hazardous waste. Hazard-
ous wastes from these systems will likely be reallocated
to other viable combustion systems at the same facility if
there is sufficient capacity, alternative combustion facili-
ties that continue burning, or waste management alterna-
tives (e.g., solvent reclamation). Because combustion is
likely to remain the lowest cost option, we expect most
reallocated wastes will continue to be managed at com-
bustion facilities.
NESHAPS: Final Standards for Hazardous Air Pollutants
for Hazardous Waste Combustors, 64 Fed. Reg. 52,828,
53,017 (1999). In other words, the early cessation rule will
not significantly reduce the amount of hazardous waste pro-
duced, the amount of hazardous waste burned, or the levels of
hazardous air pollutant emissions. It will instead merely
reallocate which combustion facilities process the same haz-
ardous waste under the same conditions. At oral argument,
EPA counsel candidly conceded that we must resolve this
case on the assumption that the early cessation program may
have no environmental benefits at all. Indeed, as petitioners
point out, to the extent that transporting hazardous waste to
commercial incinerators increases the risk of leakage, spills,
or contamination, early cessation might even result in net
environmental damage.
In view of the state of this record and EPA's concessions,
we think that the Agency's action represents a classic case of
arbitrary and capricious rulemaking. Not only did the Agen-
cy fail to "articulate a satisfactory explanation for its action
including a rational connection between the facts found and
the choice made," Motor Vehicle Mfr. Ass'n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation
marks omitted), but by claiming "numerous benefits for hu-
man health and the environment," 63 Fed. Reg. at 33,810,
where none were found, EPA "offered an explanation for its
decision that runs counter to the evidence before the agency,"
State Farm, 463 U.S. at 43.
According to EPA, however, petitioners' arguments based
on the absence of health or environmental benefits "miss the
point." The point, the Environmental Protection Agency tells
us, is not environmental protection. Instead, the Agency
argues, it must implement the early cessation program re-
gardless of environmental impact because CAA section
112(i)(3)(A) requires "compliance as expeditiously as practica-
ble" and that phrase "appears to mandate EPA's selection of
a two-year compliance date for sources choosing the compli-
ance option of ceasing to burn hazardous wastes." EPA's
argument goes like this: (1) "Compliance" with an emission
standard must include "virtually any means of avoiding non-
compliance." (2) "Compliance date" can thus be interpreted
to include "the date that a source, subject to the rule because
it burns hazardous waste, ceases air emissions attributable to
burning those wastes." (3) Since "compliance" means cessa-
tion as well as installation of pollution controls, then "compli-
ance as expeditiously as practicable" must require early ces-
sation because cessation can be accomplished sooner than
installation of emission-control equipment. (4) Allowing com-
bustors intending to cease burning hazardous waste a full
three years to continue burning would violate the statute's
command to "provide for compliance as expeditiously as
practicable" regardless of the environmental effect of requir-
ing early cessation.
As with any question of statutory interpretation, we first
ask "whether Congress has directly spoken to the precise
question at issue." Chevron, U.S.A., Inc. v. Natural Re-
sources Defense Council, Inc., 467 U.S. 837, 842 (1984). In
this case, the answer is no. Nothing in the Clean Air Act
addresses whether "compliance as expeditiously as practica-
ble" requires early cessation. Indeed, as the Agency con-
cedes, neither the Act nor its legislative history suggests that
Congress ever considered early cessation or the possibility
that if EPA imposes a cessation deadline before a compliance
deadline, sources not subject to early cessation but which
burn no cleaner would take up the slack during the interim
and produce the very same emissions level.
Since the Clean Air Act is "silent or ambiguous with
respect to the specific issue," id. at 843, we ask whether the
Agency's interpretation of section 112(i)(3)(A) to mandate
early cessation absent environmental benefit is "a permissible
construction of the statute," id., i.e., whether it is "reasonable
and consistent with the statute's purpose." Independent Ins.
Agents of Am., Inc. v. Hawke, 211 F.3d 638, 643 (D.C. Cir.
2000). The Clean Air Act's purpose is "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. s 7401(b)(1), constrained
of course by section 112(i)(3)'s explicit concern over practica-
bility. In its rulemaking, EPA, apparently recognizing that
its regulations must be consistent with the Clean Air Act's
goals, claimed that early cessation "will have numerous bene-
fits for human health and the environment." 63 Fed. Reg. at
33,810. But having realized it had made no findings to
support this claim, the Agency simply abandoned any attempt
to reconcile its reading of section 112(i)(3)(A) with the stat-
ute's objectives. Indeed, nothing in the record suggests the
early cessation program will, directly or indirectly, further
the Clean Air Act's environmental goals.
We think it unreasonable for the Agency to have interpret-
ed the phrase "compliance as expeditiously as practicable" as
requiring it to impose costly obligations on regulated entities
without regard to the Clean Air Act's purpose. See, e.g.,
United States Nat'l Bank of Oregon v. Independent Ins.
Agents of Am., Inc., 508 U.S. 439, 455 (1993) ("Over and over
we have stressed that '[i]n expounding a statute, we must not
be guided by a single sentence or member of a sentence, but
look to the provisions of the whole law, and to its object and
policy.' ") (quoting United States v. Heirs of Boisdore, 49 U.S.
(8 How.) 113, 122 (1849)). As we said in Continental Air
Lines, Inc. v. DOT, "the critical point is whether the agency
has advanced what the Chevron Court called 'a reasonable
explanation for its conclusion that the regulations serve the
... objectives [in question].' " 843 F.2d 1444, 1452 (D.C. Cir.
1988) (quoting Chevron, 467 U.S. at 863) (alteration in origi-
nal). Here, EPA has failed to do so. See also, e.g., Dole v.
United Steelworkers of America, 494 U.S. 26, 37 (1990)
(rejecting agency's interpretation of a statute where "none of
Congress' enumerated purposes would be served").
Unlike Chevron, see dissenting op. at 2-3, this case does
not involve a policy disagreement between this court and
EPA over which of two possible interpretations would best
achieve the Clean Air Act's goals. Here, the Agency readily
concedes it has no evidence to suggest the challenged pro-
gram is consistent with the Act's aims. See Continental Air
Lines, 843 F.2d at 1453 ("A judicial decision to the effect that
an agency's interpretation frustrates the policies of Congress
(or is inconsistent with the statutory mandate) is a far cry
from a decision that the agency's approach fails best to
promote Congress' purposes."). Given the absence of envi-
ronmental benefits--indeed, the possibility of environmental
harm--EPA violated the basic requirement that its actions
must "not deviate from or ignore the ascertainable legislative
intent." Small Refiner Lead Phase-Down Task Force v.
EPA, 705 F.2d 506, 520 (D.C. Cir. 1983) (internal quotation
marks omitted).
In reaching this conclusion, we emphasize that we do not
question EPA's authority under the Clean Air Act to imple-
ment an early cessation program if it determines through
reasoned decisionmaking that the program would produce
environmental or health benefits. For example, if hazardous
waste combustors who elect to comply with the MACT stan-
dards by modifying their processes or equipment, phase in
their new controls gradually over the three-year compliance
period, it may well be that during the third year, these
sources would be burning under much cleaner conditions. In
that case, the hazardous waste that would have been burned
by kilns and on-site incinerators would be redirected to
facilities that are closer to compliance with the new stan-
dards, thus producing real environmental benefits. As the
Agency concedes, however, the record contains no evidence of
such benefits.
III.
We turn finally to petitioners' challenge to the NIC and
Progress Report requirements. EPA asserts that although
these requirements were implemented primarily as means of
enforcing the early cessation rule, they serve the independent
purpose of increasing public participation in the RCRA per-
mit modification process which this rule streamlined. Peti-
tioners disagree, claiming not only that the reporting require-
ments are integrally related to the early cessation rule, but
that they go far beyond the level of disclosure and public
participation required under previous RCRA regulations.
Because it is impossible for us to determine from this
record that EPA would have promulgated the NIC and
Progress Report requirements absent the early cessation
rule, we must vacate these provisions as well. See, e.g., Davis
County Solid Waste Management v. E.P.A., 108 F.3d 1454,
1459 (D.C. Cir. 1997) ("Severance and affirmance of a portion
of an administrative regulation is improper if there is sub-
stantial doubt that the agency would have adopted the sev-
ered portion on its own." (internal quotation marks omitted)).
Of course, this leaves EPA free to promulgate new reporting
requirements if it has some independent basis for doing so,
consistent with the statutes' purposes.
The petition for review is granted and the rule is vacated.
So ordered.
Sentelle, Circuit Judge, dissenting: While the majority
correctly describes EPA's bifurcated compliance program as
"unusual," EPA sees the compliance mechanism as an innova-
tive 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 de-
vised a reasonable approach to implement a reasonable inter-
pretation 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 (1984), and as a reasonable, lawful agency action.
I agree with the majority that section 112(i)(3)(A) vests
EPA with the statutory authority to implement a bifurcated
early cessation program. See Maj. Op. at 7-8. I also agree
that EPA failed to substantiate its claim of health and envi-
ronmental benefit associated with the implementation of the
program. See id. at 9. 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 "compli-
ance as expeditiously as practicable." I accept the majority's
general premise that Congress intended the Clean Air Act, 42
U.S.C. s 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 fur-
ther general goals.
For the reasons set forth by the majority, tempered by
Congress's decision not to impose a regulation-specific re-
quirement 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 author-
ity for an early cessation program." Maj. Op. at 8. 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 pro-
gram 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. Just so here. Where the interpre-
tation by the agency otherwise survives the two-step analysis
under Chevron, 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. s 7401(b)(1); see Maj.
Op. at 11. 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. Oth-
ers 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.
s 7545(k)(1). That section, also part of the Clean Air Act,
empowered EPA to "establish[ ] requirements for reformulat-
ed gasoline to be used in gasoline-fueled vehicles in specified
nonattainment areas." 42 U.S.C. s 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 regula-
tions. I am not suggesting that it would have been unreason-
able 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 danger-
ous course by using 42 U.S.C. s 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 forbid-
den by the Supreme Court in Chevron.
Finding nothing illegal in EPA's choice of means to imple-
ment "compliance as expeditiously as practicable," I dissent.