United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 2008 Decided March 20, 2009
No. 07-1151
NATURAL RESOURCES DEFENSE COUNCIL,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
AMERICAN FARM BUREAU FEDERATION, ET AL.,
INTERVENORS
Consolidated with 08-1057
On Petitions for Review of Final Actions
of the Environmental Protection Agency
Colin C. O'Brien argued the cause for petitioner. With him
on the briefs was John Walke.
Joshua M. Levin, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief was
John C. Cruden, Deputy Assistant Attorney General.
Peter S. Glaser argued the cause for intervenor. With him
2
on the brief were Norman W. Fichthorn, Julie Anna Potts, and
Harold P. Quinn Jr. Richard E. Schwartz entered an
appearance.
Before: HENDERSON, RANDOLPH and ROGERS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
Opinion concurring in part and dissenting in part filed by
Circuit Judge ROGERS.
RANDOLPH, Circuit Judge: State authorities submit air
pollution emissions data to the Environmental Protection
Agency. EPA monitors the data in order to evaluate regional
compliance with national air pollution standards. In 2007, EPA
promulgated a regulation governing the exclusion of emissions
data during “exceptional events” such as natural disasters. The
Natural Resources Defense Council (NRDC) brought petitions
for review, seeking to set aside the rule’s definition of “natural
events” and to vacate several statements in the preamble to the
rule concerning types of events that may qualify as
“exceptional.”
I.
The Clean Air Act commands EPA to promulgate national
air quality standards for certain air pollutants. States develop
and implement plans to comply with EPA’s air quality
standards. 42 U.S.C. §§ 7408–7410. The states have
established a network of air quality monitoring stations to
measure regional compliance with EPA’s national standards.
Based on this data, EPA designates areas as being in either
“attainment” or “nonattainment” and imposes more rigorous
3
pollution control measures in “nonattainment” areas. See 42
U.S.C. §§ 7407(d), 7502.
In 2005, Congress amended the Clean Air Act to require
EPA to promulgate regulations governing air quality monitoring
during “exceptional events.” See 42 U.S.C. § 7619(b). The
amended statute defined “exceptional event” as an event that “(i)
affects air quality; (ii) is not reasonably controllable or
preventable; (iii) is an event caused by human activity that is
unlikely to recur at a particular location or a natural event; and
(iv) is determined by the Administrator . . . to be an exceptional
event.” Id. § 7619(b)(1)(A). EPA published a final exceptional
events rule, accompanied by a lengthy preamble, in March 2007.
Treatment of Data Influenced by Exceptional Events, 72 Fed.
Reg. 13,560 (Mar. 22, 2007) (codified at 40 C.F.R. §§ 50.1,
50.14, 51.930). The final rule’s definition of “exceptional
events,” codified at 40 C.F.R. § 50.1(j), repeated the statutory
language. In the next subsection, the rule defined “natural
event” – as used in 42 U.S.C. § 7619(b)(1)(A)(iii) – as “an event
in which human activity plays little or no direct causal role.” 40
C.F.R. § 50.1(k). The rule also provided that states may “flag”
anomalous data caused by exceptional events, and that EPA will
then review the flagged data and determine whether to exclude
it from the set of data used in reviewing compliance with its air
quality standards. 40 C.F.R. § 50.14.
NRDC argues against EPA’s definition of “natural event,”
against its description in the rule’s preamble of a “final rule
concerning high wind events,” and against its list, again in the
preamble, of examples of potentially exceptional events.
II.
NRDC’s complaint is that EPA should not have defined
“natural event” in 40 C.F.R. § 50.1(k) to include events in which
4
human activities play “little” causal role. As NRDC sees it, a
“natural event” within the meaning of § 7619 is something that
occurs without the slightest human influence. EPA says this
objection was never raised during the rulemaking and is
therefore barred.
Section 307 of the Clean Air Act states: “Only an objection
to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any
public hearing) may be raised during judicial review.” 42
U.S.C. § 7607(d)(7)(B). Similar provisions are common with
respect to other agencies. See Wash. Ass’n for Television &
Children v. FCC, 712 F.2d 677, 682 n.6 (D.C. Cir. 1983). Their
purpose is to ensure that the agency and other interested persons
have been alerted to the commenter’s objection to the proposed
rule. The agency then may correct or modify the rule it
proposed or explain why it disagrees with the objection. See
Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449, 462 (D.C.
Cir. 1998). Other parties also may contribute to the agency’s
deliberations by endorsing or opposing the objection and by
providing information and arguments in support of their
position.
NRDC thinks the following portion of its nine-page, single
spaced letter to EPA constituted an objection to EPA’s proposed
definition of “natural event”:
Under no circumstance can the clean-up
associated with a natural disaster itself be considered a
“natural event.” EPA’s suggestion to the contrary flies
in the face of the plain statutory language. The statute
clearly and explicitly distinguishes between “natural
event[s]” (events that do not have a human origin) and
“events caused by human activity.” A natural event is
one that is not the result of human activity . . . While the
5
level of human activity that discharges pollutants may
increase in the wake of a natural disaster, emissions
from clean-up activities (such as debris burning,
operation of diesel equipment, and demolition activities)
are clearly events caused by human activity, and may
not be classified as “exceptional events” unless they
meet each of the requirements of section 319 for
qualifying anthropogenic events.
In short, the activities themselves that are
responsible for the emissions (and possible violations of
the NAAQS) are of human origin, and by definition not
natural events. The fact that a natural event precipitates
the need for human activity cannot and does not
transform the human activity itself into a natural event.
Thus, the Act clearly precludes EPA from identifying
emissions from clean-up activities as “natural events”
that qualify as exceptional events.
NRDC Comments, at 4–5.
Given the context, no EPA official would have guessed that
NRDC was complaining about the agency’s proposed definition
of “natural event.” Those familiar with the proceedings would
have taken NRDC’s remarks as a criticism of the one sentence
in the notice of proposed rulemaking dealing with clean-up
activities after a natural disaster (such as the eruption of Mt. St.
Helens in 1980 or Hurricane Katrina in 2005). The sentence
read: “For the purpose of flagging, major natural disasters, such
as hurricanes and tornadoes for which State, local, or Federal
relief has been granted, and clean-up activities associated with
these events may be considered exceptional events.” Treatment
of Data Influenced by Exceptional Events, 71 Fed. Reg. 12,592,
12,596 (Mar. 10, 2006). It is not apparent that EPA even rested
its view about clean-up activities on the proposed definition of
6
“natural event” in 40 C.F.R. § 50.1(k) rather than on the clause
in another proposed subsection defining “exceptional events” to
include human activities “unlikely to recur at a particular
location,” id. § 50.1(j).
There are additional reasons why NRDC’s critique, quoted
above, would not have alerted the careful reader to the
complaint it now makes about § 50.1(k). NRDC’s comments
said that a natural event could not have a “human origin” and
could not be “the result of human activity.” These comments
are not necessarily inconsistent with § 50.1(k)’s definition of
natural events as ones in which human activity plays “little or no
direct causal role.” No one would say that the “origin” of the
tornado was human activity because the storm spread man-made
air pollutants throughout the countryside. The definition of
“natural event” in proposed § 50.1(k) was only a few words
long, yet NRDC did not quote the portion it now finds
objectionable. NRDC never even identified the rule by section
number or placement in the notice of proposed rulemaking. We
have held that Section 307 of the Clean Air Act bars litigants
from arguing against a particular section of a rule on judicial
review if they failed to identify the particular section in their
comments during the rulemaking. See Mossville Envtl. Action
Now v. EPA, 370 F.3d 1232, 1240 (D.C. Cir. 2004); Motor &
Equip. Mfrs., 142 F.3d at 462. A citation to the section of the
rule or a description of it may be all that is needed. If a
comment lacking even that low level of specificity sufficed, the
agency would be subjected to verbal traps. Whenever the
agency failed to detect an obscure criticism of one aspect of its
proposal, the petitioner could claim not only that it had complied
with Section 307 but also that the agency acted arbitrarily
because it never responded to the comment. Rulemaking
proceedings and the legal doctrines that have grown up around
them are intricate and cumbersome enough. Agency officials
should not have to wade through reams of documents searching
7
for “‘implied’ challenges.” Mossville, 370 F.3d at 1239. It is
not too much to expect interested persons to point to the
particular portion of the proposed rule they are arguing against.
It is worth adding that after EPA promulgated the final rule
containing § 50.1(k) and its definition of “natural event,” NRDC
filed a petition for reconsideration. In its petition NRDC spelled
out for the first time its complaint about not excluding from
“natural event” those events in which human activity had only
a “little” causal effect. NRDC also explained that the grounds
for its objection to § 50.1(k) “arose after the period for public
comment and are of central relevance to the rule.” Petition for
Reconsideration, In the Matter of the Final Rule: Treatment of
Data Influence by Exceptional Events, No. 2060-AN40 (E.P.A.
May 21, 2007). This representation cuts against NRDC’s
current position that it objected to § 50.1(k) during the comment
period and is a further indication that NRDC failed to satisfy
Section 307’s requirement.
III.
The balance of NRDC’s case deals not with the rules EPA
promulgated but with its statements in the preamble to the rules.
We have jurisdiction to review these statements only if they
constitute final agency action. 42 U.S.C. § 7607(b)(1). A final
agency action is one that marks the consummation of the
agency’s decisionmaking process and that establishes rights and
obligations or creates binding legal consequences. Bennett v.
Spear, 520 U.S. 154, 177–78 (1997). While preamble
statements may in some unique cases constitute binding, final
agency action susceptible to judicial review, Kennecott Utah
Copper Corp. v. Dep’t of Interior, 88 F.3d 1191, 1222–23 (D.C.
Cir. 1996), this is not the norm. Agency statements “having
general applicability and legal effect” are to be published in the
Code of Federal Regulations. Federal Register Act, 44 U.S.C.
8
§ 1510(a)–(b); 1 C.F.R. § 8.1; see Brock v. Cathedral Bluffs
Shale Oil Co., 796 F.2d 533, 539 (D.C. Cir. 1986).
In one section of the preamble, EPA refers to its “final rule
concerning high wind events,” which “states that ambient
particulate matter concentrations due to dust being raised by
unusually high winds will be treated as due to uncontrollable
natural events” when certain conditions apply. 72 Fed. Reg.
13,560, 13,576. There is no such final rule. The final rule does
not mention high wind events or anything about “ambient
particulate matter concentrations.” EPA calls this a drafting
error. In light of the error, the high wind events section of the
preamble is a legal nullity. Agencies must publish substantive
rules in the Federal Register to give them effect. 5 U.S.C.
§ 552(a)(1); Morton v. Ruiz, 415 U.S. 199, 233 & n.27 (1974).
An unpublished final rule on high winds can have no legal
consequences, and neither can preamble statements mentioning
such a rule. See Brock, 796 F.2d at 539. Because there was no
“nationally applicable . . . final action taken” by EPA, 42 U.S.C.
§ 7607(b)(1), there is nothing for this court to review.
The preamble also contains a list of “examples” of events
that may be considered “exceptional” under the final rule. See
72 Fed. Reg. 13,560, 13,564–65. NRDC objects to these
examples on the basis that they treat a variety of common events
as per se exceptional in violation of 42 U.S.C. § 7619. We do
not believe the statements in the preamble amounted to final
agency action. EPA spoke in the conditional, suggesting that
events in the various categories “may be exceptional events” or
“may qualify for exclusion under this rule provided that all other
requirements of the rule are met.” 72 Fed. Reg. at 13,564–65.
Other statements were equivocal, such as the declaration,
repeated several times in different forms, that certain events are
to be evaluated “on a case-to-case basis.” Id. Giving “decisive
weight to the agency’s choice between ‘may’ and ‘will,’” Brock,
9
796 F.2d at 538, we have held that similar statements are
nonbinding and unreviewable. See Interstate Natural Gas Ass’n
of Am. v. FERC, 285 F.3d 18, 60 (D.C. Cir. 2002); Appalachian
Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000).
Even if the statements in the preamble were reviewable
under the Clean Air Act, they are not ripe for review at this time.
The statements about exceptional events are “hypothetical and
non-specific.” Kennecott, 88 F.3d at 1223. NRDC has not
demonstrated that any of the statements has immediate legal or
practical consequences. How EPA will use or rely on or
interpret what it said in the preamble is uncertain. See
Kennecott, 88 F.3d at 1223; Pub. Citizen, Inc. v. U.S. Nuclear
Regulatory Comm’n, 940 F.2d 679, 683 (D.C. Cir. 1991). We
can see no significant hardship to the parties from waiting for a
real case to emerge. As EPA points out in its brief, the Clean
Air Act “provides for judicial review of any EPA decision to
determine the attainment status of an area, or to designate or
redesignate an area, based on EPA’s decision to exclude
exceptional events data or other information.” Resp’ts Br. at 39;
cf. Clean Air Implementation Project v. EPA, 150 F.3d 1200,
1204 (D.C. Cir. 1998).
The petitions for review are therefore dismissed.
So ordered.
ROGERS, Circuit Judge, concurring in part and dissenting in
part: When an agency receives comments that object to its
application of a statutory term as being contrary to the plain text
of the statute, what is the agency to understand is the target of
the objection? The specific application or the agency’s
underlying interpretation of the term or both? The court
responds only the application. But the answer depends on how
the comments are phrased. If, as here, the comments address a
specific application by pointing out that it reflects an
interpretation of a statutory term that contradicts the plain text
of the statute, how can the agency respond to the comments
without considering whether its definition is consistent with the
statute, much less how would it not be on notice that the
comments extended to the agency’s interpretation of the
statutory term?
The NRDC objected to EPA’s interpretation of the term
“natural event,” 42 U.S.C. § 7619(b)(1)(A)(iii),1 as applied to
emissions arising from clean-up activities associated with
natural disasters, explaining that such an interpretation was
inconsistent with the statutory text and the legislative history.
It offered these comments in the context of addressing EPA’s
list of examples of “natural events” in the preamble to the notice
of proposed rulemaking, The Treatment of Data Influenced by
1
The Clean Air Act defines “exceptional event” as an event
that —
(i) affects air quality;
(ii) is not reasonably controllable or preventable;
(iii) is an event caused by human activity that is unlikely to
recur at a particular location or a natural event; and
(iv) is determined by the Administrator through the process
established in the regulations promulgated under paragraph (2)
to be an exceptional event.
42 U.S.C. § 7619(b)(1)(A) (emphasis added).
2
Exceptional Events (“NPRM”), 71 Fed. Reg. 12,592, 12,596
(Mar. 10, 2006). NRDC Comments, at 4-5. Given the stated
reason for the objection to the application and the context, it is
unclear what rule follows from the court’s approach for there is
no heightened comment requirement under the Administrative
Procedure Act, the Clean Air Act, or our precedent.
Although section 307’s exhaustion requirement is “strictly”
enforced, Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449,
462 (D.C. Cir. 1998), our precedent explains that “commenters
must be given some leeway in developing their argument before
this court, so long as the comments to the agency were adequate
notification of the general substance of the complaint.” S. Coast
Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 891 (D.C. Cir.
2006). Likewise, our precedent rejects the idea that the
exhaustion requirement calls for hair-splitting. E.g.,
Appalachian Power Co. v. EPA, 135 F.3d 791, 817 (D.C. Cir.
1998). For example, in National Petrochemical & Refiners
Association v. EPA, 287 F.3d 1130 (D.C. Cir. 2002), the court
concluded that although the comments did not specifically
mention the cold-start portion of the Federal Test Procedure,
they did “raise the underlying issue of poor performance at
certain temperatures,” id. at 1139, and consequently the
comments were “close enough to have put the EPA on notice
that it had to defend the performance of the NOx adsorbers at all
relevant temperatures and conditions,” id. at 1139-40. So too
here, where the comments and the structure of the NPRM both
indicate that EPA was put on notice of NRDC’s underlying
objection to the definition of “natural event.”
The comments at issue stated:
[1] Under no circumstances can the clean-up
associated with a natural disaster itself be considered
a “natural event.” [2] EPA’s suggestion to the contrary
3
flies in the face of the plain statutory language. [3] The
statute clearly and explicitly distinguishes between
“natural event[s]” (events that do have a human origin)
and “events caused by human activity.” [4] A natural
event is one that is not the result of human activity. [5]
For example, the Legislative History identifies only
forest fires and volcanic eruptions as examples of
natural events. [6] While the level of human activity
that discharges pollutants may increase in the wake of
a natural disaster, emissions from clean-up activities
(such as debris burning, operation of diesel equipment,
and demolition activities) are clearly events caused by
human activity, and may not be classified as
“exceptional events” unless they meet each of the
requirements of section 319 for qualifying
anthropogenic events.
[7] In short, the activities themselves that are
responsible for the emissions (and possible violations
of NAAQS) are of human origin, and by definition not
natural events. [8] The fact that a natural event
precipitates the need for human activity cannot and
does not transform the human activity itself into a
natural event. [9] Thus, the Act clearly precludes EPA
from identifying emissions from clean-up activities as
“natural events” that qualify as exceptional events.
NRDC Comments, at 4-5 (internal citation omitted) (alteration
other than numbering in NRDC comments).
It is readily apparent these comments put EPA on notice
that the NRDC was objecting to its broad interpretation of the
statutory term “natural event.” Although the comments do not
expressly refer to 40 C.F.R. § 50.1(k), which codifies EPA’s
definition of “natural event,” the introductory phrase — “[u]nder
4
no circumstances” — signals an underlying concern with EPA’s
interpretation of what can qualify as a “natural event.” So
introduced, the second sentence makes clear that the preceding
reference to a particular application is grounded in an objection
to the agency’s interpretation of what is a “natural event” as too
broad and contrary to the plain statutory text. The third sentence
explains why, pointing to the distinction in the statute between
natural events and those caused by human activity. See 42
U.S.C. § 7619(b)(1)(A)(iii). The fourth sentence states the
conclusion that follows in the commenter’s view. Support for
that view is offered in the fifth sentence’s reference to an
illustrative example in the legislative history. The sixth
sentence identifies the confusion that the agency’s broad
interpretation reflects, given the statutory distinction and
inclusion of specific exceptions. The second paragraph makes
the same point: the statute bars EPA from including such an
application in its listing of examples of a “natural event”
because clean-up activities and other events resulting from
human activity are inherently (as opposed to impliedly) human
activities and thus not a “natural event.”
Even if the entirety of the above-quoted comments did not
put EPA on notice that the NRDC was objecting to its
interpretation of “natural event,” the fourth sentence did.
Following a sentence noting the statutory distinction, the fourth
sentence states: “A natural event is one that is not the result of
human activity.” [3-5] This alone was fair warning that,
according to the NRDC, the statute precludes treating any
human-caused activity as a “natural event.” As the fourth
sentence was made in the context of addressing EPA’s
application of its definition, the comments were “close enough,”
Nat’l Petrochem. & Refiners Ass’n, 135 F.3d at 817, to have put
EPA on notice that the commenter was challenging the agency’s
definition of a statutory term. Either way EPA could not avoid
being aware that the NRDC’s comments objected to the
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underlying broad interpretation of “natural event” and so met the
Clean Air Act’s “reasonable specificity” requirement, 42 U.S.C.
§ 7607(d)(7)(B).
This is not an instance in which the agency would be
unclear as to what the comments addressed or have to “wade
through reams of documents searching for ‘implied
challenges,’” Op. at 6-7 (quoting Mossville Envtl. Action Now
v. EPA, 370 F.3d 1232, 1240 (D.C. Cir. 2004)). The comments
state on the first page that they are addressing “elements of
EPA’s March 10 proposal,” i.e., the NPRM, and explain why,
as demonstrated by one example in the preamble’s listing of
examples, EPA’s interpretation of “natural event” could not be
consistent with the plain meaning of the statute, see Op. at 6,
pointing to the statutory text and the legislative history, [3]-[5].
Even speculating — contrary to EPA’s proposal, see NPRM, 71
Fed. Reg. at 12,596 — that EPA’s view of clean-up activities
was based on the definition of “exceptional events” as including
human activities “unlikely to recur at a particular location,” see
Op. at 5-6, the comments would alert EPA to the objection that
the statute does not permit an activity with any human cause to
be an “exceptional event” unless the statutory criteria for an
“event caused by human activity” were satisfied, [6]. In fact, by
using separate sections and headings in the comments to address
each possibility, NRDC’s comments object to the proposed
rule’s treatment of clean-up activities as “exceptional events”
either as natural events or events caused by human activity.
The specified context of the comments, especially the
placement of the clean-up-activities example in that part of the
NPRM where EPA was giving examples of how its definition
of “natural event” would be applied also shows that EPA was on
notice of the objection to its interpretation of “natural event.”
The comments address a sentence in the NPRM involving
clean-up activities after a natural disaster, see Op. at 5, that
6
appears in the section of the preamble to the proposed rule
giving examples of “natural events.” NPRM, 71 Fed. Reg. at
12,596 (“5. Natural Events”). The comments thereby direct the
reader to the underlying concept that is at issue: a broad
interpretation of “natural event” that includes activities with
some human contribution. Together, the text and structure of
the comments and placement of the clean-up activities example
in the NPRM’s listing sufficed to put EPA on notice that the
NRDC was objecting to EPA’s definition of “natural event.”
Nothing in the NRDC’s petition for reconsideration suggests its
earlier comments had not raised an objection to the agency’s
interpretation of “natural event.” See Op. at 7. In the petition
the NRDC complains only that earlier comments could not have
objected to justifications for the definition that appeared for the
first time in the preamble to the final rule, namely certain
legislative history, a previous rulemaking proposal, and new
illustrative examples. In any event, the rehearing objection to
EPA’s definition of “natural event” tracks the NRDC’s earlier
comments.2
Nonetheless, although EPA was on notice that the NRDC
2
In seeking reconsideration of the final rule, NRDC stated:
The Final Rule’s interpretation of the statutory term
“natural event” is an unlawful departure from the clear
language of the statute. The statute identifies a dichotomy
whereby events are either “natural” or “caused by human
activity”. 42 U.S.C. § 7619(1)(A). Since the statute (and
logic) does not permit an event to be both natural and caused
by human activity, a ‘natural event” has no human activity.
Petition for Reconsideration of the Natural Resources Defense
Council, In the Matter of the Final Rule: Treatment of Data Influenced
by Exceptional Events, No. 2060-AN40, at 5-6 (E.P.A. May 21,
2007).
7
was objecting to its broad interpretation of “natural event” in a
manner that would include human activities, the NRDC’s
objection fails on the merits. The Clean Air Act does not define
“natural event” or specify how to categorize events with
predominantly natural causes but some human contribution.
Because the statute leaves a gap to be filled by EPA, the
statutory term is ambiguous. EPA’s definition, in turn, is
permissible. See Chevron U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837, 842-43 (1984). As EPA offers,
“human activities sometimes contribute to otherwise
spontaneous events,” Respondent’s Br. at 33; see also
Treatment of Data Influenced by Exceptional Events (“Final
Rule”), 72 Fed. Reg. 13,560, 13,563 (Mar. 22, 2007), such as a
planned forest fire that gets out of control because of unforeseen
circumstances. Still, the question whether EPA’s application of
the term “natural event” to particular circumstances will, in fact,
be permissible is for another day, as EPA’s listing of examples
is neither exhaustive, see Final Rule, 72 Fed. Reg. at 13,564,
nor binding on it, see Op. at 8-9; cf. Cement Kiln Recycling
Coal. v. EPA, 493 F.3d 207, 226-28 (D.C. Cir. 2007); Interstate
Natural Gas Ass’n of America v. FERC, 285 F.3d 18, 60 (D.C.
Cir. 2002).
Accordingly, I respectfully dissent from Part II of the
opinion and otherwise concur.