United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed June 8, 2007
No. 04-1200
SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
NATIONAL ENVIRONMENTAL DEVELOPMENT ASSOCIATION'S
CLEAN AIR REGULATORY PROJECT, ET AL.,
INTERVENORS
Consolidated with
No. 04-1201, et al.
On Petitions for Rehearing
David S. Baron, Barbara B. Baird, Adam Babich, Ann B.
Weeks, and Jonathan F. Lewis were on the petition for rehearing
filed by the Environmental Petitioners and South Coast Air
Quality Management District and the response to the petition for
rehearing filed by the Environmental Protection Agency.
John C. Cruden, Deputy Assistant Attorney General, U.S.
2
Department of Justice, David J. Kaplan and Natalia T. Sorgente,
Attorneys, and Jan M. Tierney, Attorney, U.S. Environmental
Protection Agency were on the petition for rehearing filed by the
Environmental Protection Agency.
Martha Coakley, Attorney General, Attorney General’s
Office of Commonwealth of Massachusetts, William L. Pardee,
Assistant Attorney General, Richard Blumenthal, Attorney
General, Attorney General’s Office of the State of Connecticut,
Kimberly Massicotte and Matthew Levine, Assistant Attorneys
General, Joseph R. Biden, III, Attorney General, Attorney
General’s Office of the State of Delaware, Valerie S. Csizmadia,
Deputy Attorney General, G. Steven Rowe, Attorney General,
Attorney General’s Office of the State of Maine, Gerald D.
Reid, Assistant Attorney General, Andrew M. Cuomo, Attorney
General, Attorney General’s Office of the State of New York,
Barbara Underwood, Solicitor General, David A. Munro and
Lisa S. Kwong, Assistant Attorneys General, Robert A. Reiley,
Counsel, Commonwealth of Pennsylvania, Department of
Environmental Protection, Linda Singer, Attorney General,
Attorney General’s Office of the District of Columbia, Todd S.
Kim, Solicitor General, Edward S. Schwab, Deputy Solicitor
General, and Donna M. Murasky, Senior Litigation Counsel,
were on the response of petitioner Commonwealth of
Massachusetts, et al., to the petition for rehearing filed by the
Environmental Protection Agency.
Charles H. Knauss, Robert V. Zener, and Robert S. Taylor
were on the petition for rehearing filed by the Industry
Petitioners.
Norman W. Fichthorn and Lucinda Minton Langworthy
were on the petition for rehearing filed by Intervenor-
Respondents American Chemistry Council, et al.
3
Before: HENDERSON, ROGERS and BROWN, Circuit Judges.
ROGERS, Circuit Judge: Before the court are five petitions
for rehearing1 with regard to the vacatur and remand of a final
rule implementing the eight-hour national ambient air quality
standard (“NAAQS”) for ozone under the Clean Air Act (“the
CAA”), 42 U.S.C. § 7401 et seq. See Final Phase 1 Rule To
Implement the 8-Hour Ozone NAAQS, 69 Fed. Reg. 23,951
(Apr. 30, 2004) (codified at 40 C.F.R. parts 40, 51, 81) (“2004
Rule”). The petitions overlap in part, challenging principally the
court’s interpretation of the statutory gap, described in Whitman
v. American Trucking Ass’ns, 531 U.S. 457 (2001), that arises
from the decision of the Environmental Protection Agency
(“EPA”) to change from a one-hour to an eight-hour
measurement system for ozone, and the court’s construction of
the CAA’s anti-backsliding provision. See S. Coast Air Quality
Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). None of
these challenges has merit and we deny the petitions. However,
we grant the joint request of EPA and the Environmental
Petitioners to clarify the description of the required conformity
determinations and to modify the scope of the vacatur of the
2004 Rule.
I.
In Whitman, the Supreme Court acknowledged that Subpart
2 of the CAA “unquestionably” provides for classifying
nonattainment ozone areas even after EPA changed the system
for measuring ozone levels from the highest annual one-hour
average concentration to the fourth-highest annual eight-hour
1
Separate petitions for rehearing were filed by a group of
Environmental Petitioners, the Chamber of Greater Baton Rouge et al.
(“Baton Rouge”), National Petrochemical & Refiners Association
(“NPRA”), American Chemistry Council et al. (“ACC”), and EPA.
4
average concentration. 531 U.S. at 482. However, because
Congress had defined the classification system in 1990 in terms
of one-hour ozone, there were several limited gaps in the CAA.
See id. at 484. This court concluded that EPA had misconstrued
the extent of the gaps to exercise its interpretative discretion
more broadly than the Supreme Court had authorized. See S.
Coast Air Quality Mgmt. Dist., 472 F.3d at 892-94. In its
petition for rehearing, EPA disagrees with our interpretation of
the following passage in Whitman:
[T]o the extent that the new ozone standard is stricter
than the old one, see 62 Fed. Reg. 38856, 38858 (1997)
(8-hour standard of 0.09 ppm rather than 0.08 ppm
would have “generally represent[ed] the continuation
of the [old] level of protection”), the classification
system of Subpart 2 contains a gap, because it fails to
classify areas whose ozone levels are greater than the
new standard (and thus nonattaining) but less than the
approximation of the old standard codified by Table 1.
531 U.S. at 483 (citation omitted). EPA maintains that “the
approximation of the old standard codified by Table 1” does not
refer to the previous citation, which repeats EPA’s assertion in
the 1997 Rule that 0.09 ppm under the eight-hour measurement
scheme is roughly equivalent to the old standard of 0.12 ppm of
one-hour ozone. Instead, according to EPA, the
“approximation” being referenced is 0.121 ppm of one-hour
ozone, the lowest nonattaining design value in Table 1. See
EPA Pet’n at 4.
EPA’s interpretation is irreconcilable with the CAA and
Whitman. First, every other ozone level referenced in the
sentence is in eight-hour terms and there is no signal that the
final ozone level (the “approximation”) used a different metric.
Second, 0.121 is not an “approximation” of 0.12, because an
5
approximation is typically less precise than the true value. Here,
Congress started the statutory Table 1 with the value 0.121
because it is the smallest design value that qualifies as
nonattaining. An area with a design value of precisely 0.12
would “meet[]” the NAAQS under section 107 of the CAA, 42
U.S.C. § 7407. Third, nowhere in Whitman does the Supreme
Court signal that “the approximation of the old standard” is
shorthand for 0.121 ppm of one-hour ozone.
EPA also maintains that there can be no eight-hour
approximation of the one-hour ozone level because there is no
one-to-one correspondence between the two metrics. EPA Pet’n
at 5-6. But the lack of a precise equivalence is precisely why an
approximation is necessary. The approximation referenced by
the court, 0.09 ppm, is not, as EPA suggests, an arbitrary
expression of the court’s scientific prowess; as acknowledged by
the Supreme Court, the approximation comes directly from the
rulemaking record, which stated that 0.09 ppm of eight-hour
ozone “generally represent[ed] the continuation of the [old] level
of protection.” See 1997 Rule, 62 Fed. Reg. at 38,858. In short,
there is every reason to believe that the gap intended by
Whitman is the gap described by the court in South Coast Air
Quality Management District, 472 F.3d at 892-93.
EPA next objects to the court’s failure to defer, under
Chevron Step 2, to EPA’s application of Subpart 1 to gap areas.
The court merely recognized that under Chevron agency action
that does not constitute a reasonable interpretation of the statute
must be vacated. See id. at 894. Because Congress sought to
reduce EPA discretion by enacting Subpart 2 as part of the 1990
amendments to the CAA, EPA could not reasonably rely upon
its preference for regulatory flexibility in setting the boundary
between Subpart 1 and Subpart 2. EPA’s claim that the court
nullified the discretion recognized by the Supreme Court in
Whitman is meritless. See Whitman, 531 U.S. at 484.
6
II.
Four petitioners seek rehearing on which aspects of EPA’s
regulation of one-hour ozone must be retained under the eight-
hour ozone NAAQS. See 42 U.S.C. § 7502(e).2 EPA
determined that “if Congress intended areas to remain subject to
the same level of control where a NAAQS was relaxed,
[Congress] also intended that such controls not be weakened
where the NAAQS is made more stringent.” 2004 Rule, 69 Fed.
Reg. at 23,972. Contrary to the rehearing petitions of the
Industry Petitioners (NPRA, Baton Rouge, and ACC), EPA’s
determination that section 172(e) supports the introduction of
anti-backsliding measures is reasonable. EPA’s interpretation
does not violate the plain text of section 172(e), which does not
specify how to proceed when the NAAQS is strengthened but
the related reclassification would result in weakened controls.
The Industry Petitioners would require a negative inference, but
their interpretation would have an absurd result, cf. Hartford
Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1,
5 (2000), because then EPA could continually “strengthen” a
NAAQS by the smallest margin and avoid ever implementing
the time-delayed controls mandated by the CAA. See S. Coast
Air Quality Mgmt. Dist., 472 F.3d at 902-03. The Industry
2
Section 172(e) of the CAA provides that
[i]f the Administrator relaxes a national primary
ambient air quality standard . . . the Administrator
shall . . . promulgate requirements applicable to all
areas which have not attained that standard as of the
date of such relaxation. Such requirements shall
provide for controls which are not less stringent than
the controls applicable to areas designated
nonattainment before such relaxation.
42 U.S.C. § 7502(e).
7
Petitioners present nothing to suggest that Congress intended
such a glaring loophole and, accordingly, the court properly
deferred to EPA’s reasonable interpretation.
EPA and the Industry Petitioners claim, however, that in
applying EPA’s interpretation of section 172(e), the court
treated the provision as legally binding and usurped EPA’s
discretion. Not so. In the rulemaking, EPA concluded that
“Congress would have intended that control obligations that
applied for purposes of the 1-hour NAAQS should remain in
place.” Phase 1 Implementation of the 8-Hour Ozone NAAQS:
Reconsideration, 70 Fed. Reg. 30,592, 30,593 (May 26, 2005).
While the Industry Petitioners renew their arguments that the
term “controls” in section 172(e) is ambiguous and that EPA’s
interpretation eliminating certain controls is entitled to Chevron
deference, they provide no basis to doubt the court’s conclusion
that the “controls” at issue had a settled meaning. See S. Coast
Air Quality Mgmt. Dist., 472 F.3d at 900-05.
III.
We grant the joint request by EPA and the Environmental
Petitioners to make explicit that the court’s reference to
conformity determinations speaks only to the use of one-hour
motor vehicle emissions budgets as part of eight-hour
conformity determinations until eight-hour motor vehicle
emissions budgets are available. See id. at 904-05.
We also grant their request that the 2004 Rule be vacated
only to the extent that the court has sustained challenges to it.
Although certain states and the District of Columbia object to
partial vacatur on the ground that this will inequitably exempt
Subpart 1 areas from regulation while the remand is pending,
complete vacatur of a partially valid rule would only serve to
stall progress where it is most needed. EPA is urged to act
8
promptly in promulgating a revised rule that effectuates the
statutory mandate by implementing the eight-hour standard,
which was deemed necessary to protect the public health a
decade ago.