On Petitions for Review of an Order of the Environmental Protection Agency
Before: GINSBURG, HENDERSON and ROGERS, Circuit Judges.
Opinion concurring in part and dissenting in part filed by Circuit Judge ROGERS.
In 1997, the EPA revised the National Ambient Air Quality Standard (NAAQS) for ozone from a 1-hour standard to an 8-hour standard. These consolidated petitions for review challenge aspects of the Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard - Phase 2, 70 Fed. Reg. 71,612 (2005) (Phase 2 Rule), and Phase 2 of the Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard - Notice of Reconsideration, 72 Fed. Reg. 31,727 (2007) (Reconsideration Notice). We hold the Phase 2 Rule is inconsistent with the Clean Air Act (CAA or Act) in allowing participation in a regional cap-and-trade program to satisfy an area-specific statutory mandate. We further hold the EPA arbitrarily eliminated one safeguard and violated the anti-backsliding provision of the Act insofar as it eliminated another from its regulations governing review of new sources of pollution. We therefore grant the petitions with respect to those aspects of the Phase 2 Rule. In view of our decision in North Carolina v. EPA, 531 F.3d 896 (2008), in which we granted a petition for review of the Clean Air Interstate Rule (CAIR), we defer consideration of the Phase 2 Rule and Reconsideration Notice insofar as they relate to the CAIR program. We deny the petitions in all other respects.
The Act requires the EPA to designate areas as attainment, nonattainment, or unclassifiable for each NAAQS. CAA § 107(d)(1)(B), 42 U.S.C. § 7407(d)(1)(B). States have primary responsibility for implementing those standards, and must submit a state implementation plan (SIP) that specifies how the state will achieve and maintain compliance with the NAAQS. Id. § 7407(a). Part D of the Act provides the SIP for a nonattainment area must include certain control measures. Id. § 7501 et seq. Subpart 1 applies to all nonattainment areas, id. §§ 7501-7509a, whereas Subpart 2 specifies additional requirements for ozone nonattainment areas, id. §§ 7511-7511f. Section 181 of the Act classifies ozone nonattainment areas from "marginal" to "extreme" based upon the degree to which the ozone level in the area exceeds the NAAQS. Id. § 7511. An area that exceeds the NAAQS by a greater margin is given more time to meet the standard but is subjected to progressively more stringent emissions controls for ozone precursors, namely, volatile organic compounds (VOCs) and oxides of nitrogen (NOX). See CAA § 182, 42 U.S.C. § 7511a.
In 1997, the EPA determined the NAAQS for ozone, expressed as the amount of ozone in the ambient air averaged over one hour, was inadequate to protect public health. The EPA therefore promulgated a new NAAQS of .08 ppm of ozone averaged over eight hours. Under the 8-hour standard, some ozone nonattainment areas are subject only to the more flexible requirements of Subpart 1, while areas with higher levels of ozone are subject to the additional requirements of Subpart 2. See S. Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 893-95 (D.C. Cir. 2006).
The EPA implemented the 8-hour NAAQS in two phases; the Phase 2 Rule and Reconsideration Notice here under review implement the requirements of Subpart 1 and Subpart 2 for areas not attaining the 8-hour NAAQS. The consolidated petitions challenge those rules as follows. The Natural Resources Defense Council, the States of New Jersey, Connecticut, and New York, and the National Petrochemical and Refiners Association challenge provisions implementing the statutory requirement that each nonattainment area provide for such emissions reductions as may be obtained by the adoption of reasonably available control technology (RACT). The NRDC and New Jersey challenge provisions governing review of new sources of pollution. The NRDC also challenges two provisions implementing the statutory requirements that a SIP for a nonattainment area provide for specific percentage reductions in emissions and for contingency measures. Finally, the Chamber of Greater Baton Rouge and affiliated petitioners*fn1 challenge the imposition of reformulated gasoline requirements in the Baton Rouge area.
We review the EPA's interpretation of the Act pursuant to Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984): We ask first whether the Congress has "directly spoken to the precise question at issue." Id. at 842. If so, then we must "give effect to the unambiguously expressed intent of Congress." Id. at 843. If, however, the "statute is silent or ambiguous with respect to the specific issue," then we defer to the EPA's interpretation as long as it is "based on a permissible construction of the statute." Id. The Act requires us to review the Phase 2 Rule deferentially to determine only whether it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." CAA § 307(d)(9)(A), 42 U.S.C. § 7607(d)(9)(A); see Bluewater Network v. EPA, 372 F.3d 404, 410 (D.C. Cir. 2004) ("We give particular deference to the EPA when it acts under unwieldy and science-driven statutory schemes like the Clean Air Act") (internal quotation marks omitted).
II. Reasonably Available Control Technology
Section 172(c)(1) of the Act requires that the SIPs for nonattainment areas "provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology)." 42 U.S.C. § 7502(c)(1) (emphasis added). Ozone nonattainment areas that are subject to Subpart 2 of Part D are subject to more specific reasonably available control technology requirements. E.g., id. § 7511a(b)(2)(C); id. § 7511a(f). Petitioners challenge three aspects of the implementation of the RACT requirement in the Phase 2 Rule. First, the NRDC challenges the rule providing that RACT is satisfied for Subpart 1 areas by SIPs "demonstrating that the area has adopted all control measures necessary to demonstrate attainment as expeditiously as possible," Phase 2 Rule, 70 Fed. Reg. at 71,701 (codified at 40 C.F.R. § 51.912(c)(1)). Second, the State of New Jersey challenges the EPA's decision to allow states to meet the RACT requirement under the 8-hour NAAQS by certifying that RACT is met under the 1-hour NAAQS, see id. at 71,652-53. Third, the NRDC, New Jersey, the States of Connecticut and New York, and the National Petrochemical and Refiners Association challenge the EPA's conclusion that states may satisfy the RACT requirement by participating in two cap-and-trade programs, the NOX SIP Call and CAIR, see id. The court has stayed consideration of the CAIR-RACT determination.*fn2
A. RACT in Subpart 1 Nonattainment Areas
The NRDC challenges the Phase 2 Rule's treatment of the "reasonably available control technology" requirement of CAA § 172(c)(1), 42 U.S.C. § 7502(c)(1). Under the Phase 2 Rule, nonattainment areas governed by Subpart 1 that request an attainment deadline within five years of their designation "shall meet the RACT requirement by submitting an attainment demonstration SIP demonstrating that the area has adopted all control measures necessary to demonstrate attainment as expeditiously as practicable." Phase 2 Rule, 70 Fed. Reg. at 71,701/3 (codified at 40 C.F.R. § 51.912(c)(1)). The NRDC contends that this provision is an unlawful waiver of the RACT requirement of § 172(c)(1) because, under the Phase 2 Rule, a state need not require RACT at all in such areas. It views the statutory phrase "at a minimum" as imposing an unambiguous requirement for all nonattainment areas. The NRDC thus contends the Phase 2 Rule violates the plain text of § 172(c)(1) by doing away with this requirement in some nonattainment areas. However, we conclude that the term "reasonably available control technology" is ambiguous in context and that the EPA's interpretation is reasonable.
The court has previously concluded that the term "reasonably available" in the analogous phrase "reasonably available control measure" (RACM) in § 172(c)(1) is ambiguous and "clearly bespeaks [the Congress's] intention that the EPA exercise discretion in determining which control measures must be implemented . . . ." Sierra Club v. EPA, 294 F.3d 155, 162-63 (D.C. Cir. 2002). The court explained that the statute did not specify which control measures would be deemed "reasonably available" and did not "compel a state to consider whether any measure is 'reasonably available' without regard to whether it would expedite attainment in the relevant area." Id. at 162. Thus, the EPA had discretion to conclude that a measure was not "reasonably available" if it would not expedite attainment. Id. Because the same is true of the phrase "reasonably available control technology," the term "reasonably available" within RACT is also ambiguous. Moreover, even if the phrase "at a minimum" requires that at least RACT-level reductions be achieved in all nonattainment areas, the phrase does not specify the content of the RACT requirement. Given this ambiguity, the EPA has discretion reasonably to define the controls that will demonstrate compliance.
The EPA's interpretation, construing "reasonably available" as meaning only control technologies that advance attainment, is reasonable in light of the statute's accompanying text and structure. Section 172(c)(1) requires all nonattainment areas to achieve RACM "as expeditiously as practicable (including such reductions . . . as may be obtained through the adoption, at a minimum, of reasonably available control technology) . . . ." 42 U.S.C. § 7502(c)(1). To the extent an area is already achieving attainment as expeditiously as possible, imposition of additional control technologies would not hasten achievement of the NAAQS. In such a situation, the EPA may reasonably conclude that no control technologies are reasonably available and the area need not implement further technologies to satisfy the RACT requirement. Sierra Club v. EPA, 294 F.3d 155 (D.C. Cir. 2002), supports the reasonableness of the EPA's interpretation. In Sierra Club, the court held reasonable the EPA's interpretation of RACM as requiring only those control measures that would contribute to timely and expeditious attainment. 294 F.3d at 162; see also Sierra Club v. EPA, 314 F.3d 735, 743-45 (5th Cir. 2002). The court explained, in part, that the "Act 'use[s] the same terminology in conjunction with the RACM requirement' as it does in requiring timely attainment." Sierra Club, 294 F.3d at 162. The § 172(c)(1) RACM requirement, like the timely attainment requirement of CAA § 181(a)(1), 42 U.S.C. § 7511(a)(1), requires implementation of RACM "as expeditiously as practicable." Thus, the court concluded, the RACM requirement could reasonably be understood as a means of meeting the attainment deadline. 294 F.3d at 162. Because the RACT requirement is located in a parenthetical modifying RACM and because the RACM requirement is described as "including" the RACT requirement, the RACT requirement is likewise linked to the timely attainment terminology. Given this textual linkage, the EPA may reasonably extend to the RACT requirement its interpretation of RACM as requiring only those control measures that would facilitate expeditious attainment of the NAAQS.
Contrary to the NRDC's arguments, the RACT requirement does not lose all meaning under the EPA's definition. When control technology is necessary to advance attainment, it is "reasonably available" under the definition and would be required under the rule. The fact that the RACT requirement was previously located in a separate section and not in a parenthetical modifying the RACM requirement does not support the NRDC's position. Compare CAA § 172(b)(2), 42 U.S.C. § 7502(b)(2), (3) (1977), with CAA § 172(c)(1), 42 U.S.C. § 7502(c)(1) (1990). Rather, the fact that the Congress moved the requirement to a parenthetical modifying the RACM requirement supports the EPA's conclusion that the RACT requirement could be interpreted in the same manner as the RACM requirement. Although both the NRDC and the EPA point to legislative history purportedly supporting their positions, neither points to legislative history bearing on the meaning of "reasonably available." See H.R. REP. NO. 101-490, reprinted in 2 LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1990, at 223. The term "reasonably available" is ambiguous, and the EPA's interpretation is a permissible construction of the statute.
B. Certifying 8-Hour RACT Based Upon 1-Hour RACT
The Phase 2 Rule provides that a control measure approved as RACT under the 1-hour standard will be approved as RACT under the 8-hour standard absent information indicating it should not be approved. Phase 2 Rule, 70 Fed. Reg. at 71,652/3. Rather than reassessing what constitutes RACT, a state can certify that controls that previously satisfied the RACT requirement also satisfy the requirement under the 8-hour standard. New Jersey contends this provision is contrary to the Act and arbitrary and capricious. In New Jersey's view the EPA should require a re-analysis for all sources, not just those for which no controls had been considered RACT under the 1-hour standard, see id. at 71,655, because what is "reasonably available" changes over time. Without a re-analysis, New Jersey maintains there is no basis for states to certify that the initial RACT analysis meets the RACT requirement under the 8-hour NAAQS and states may apply outdated RACT controls. New Jersey thus claims that the EPA should have either updated its RACT guidance documents or at least provided uniform criteria for states to use in making RACT certifications.
The EPA promulgates two types of guidance that assist states in determining what control techniques meet the RACT requirement, control techniques guidelines (CTGs) and alternative control techniques (ACTs). Section 183 of the Act requires the EPA to issue CTGs for certain categories of sources that emit VOCs. See 42 U.S.C. § 7511b. Where CTGs exist, they establish the presumptive level of control meeting RACT. Phase 2 Rule, 70 Fed. Reg. at 71,654/3. Still, states can opt to require alternative controls rather than following the guidance in the CTGs. Notice of Final Determination and Availability of Final Control Techniques Guidelines, 71 Fed. Reg. 58,745, 58,747 (Oct. 5, 2006). Section 183(c) of the Act requires the EPA to issue ACTs for major sources of VOCs and NOX. 42 U.S.C. § 7511b(c). The ACTs "describe available control techniques and their cost effectiveness" but do not establish presumptive RACT. Phase 2 Rule, 70 Fed. Reg. at 71,654/3. Thus, neither the CTGs nor ACTs set firm RACT requirements.
Despite New Jersey's concerns, the EPA's certification provision does not conflict with the Act and is not arbitrary and capricious. Although the EPA did not revise the guidance documents, the EPA's case-by-case approach adequately ensures that RACT determinations will take into account advances in technology. First, the EPA has directed states to consider available information in addition to the CTG and ACT documents when making RACT determinations. Id. at 71,655/1. If a state is presented with information indicating that a previous RACT determination is inappropriate, the state must consider that information and modify its RACT determinations accordingly. Id. Second, when submitting RACT certifications to the EPA as part of their RACT SIP submissions, states must provide supporting information. Id. at 71,655/2. Third, if additional information is presented during notice-and-comment rulemaking, both the state and the EPA are required to consider that information as part of the rulemaking; this includes information presented during notice-and-comment rulemaking for RACT SIP submissions for previously controlled sources. Id. Because the EPA could reasonably conclude that these mechanisms will ensure the case-by-case determinations will take into account advances in technology, the EPA could also reasonably conclude "that the best way to address the possibility that CTGs or ACTs might not reflect all currently available technologies was by requiring each State to consider any new available information in making its certification, which will then be reviewed by the EPA as part of the SIP submission process," EPA Br. at 67; see also Phase 2 Rule, 70 Fed. Reg. at 71,655/1. See Nat'l Wildlife Fed'n v. EPA, 286 F.3d 554, 566-67 (D.C. Cir. 2002). Likewise, given the assurances that RACT determinations will reflect advances in technology, the EPA's approach is consistent with the statutory goal of timely attainment of the NAAQS, see CAA §§ 172, 182, 42 U.S.C. §§ 7502, 7511a.
Additionally, even if the EPA had revised the national guidelines and provided uniform criteria as New Jersey preferred, such actions would not have eliminated case-by-case inquiries by the states and the EPA. Both the CTGs and ACTs are guidance documents, see Conn. Fund for the Env't v. EPA, 672 F.2d 998, 1003 (2d Cir. 1982); United States v. Ford Motor Co., 736 F. Supp. 1539, 1543 (W.D. Mo. 1990), and neither sets firm RACT requirements. Thus, despite the existence of the CTGs, the EPA makes case-specific determinations as part of its SIP approval process. Notice of Final Determination and Availability of Final Control Techniques Guidelines, 71 Fed. Reg. at 58,747. ACTs are also merely guidelines and do not create presumptive RACT levels. Phase 2 Rule, 70 Fed. Reg. at 71,654/3. As case-by-case determinations would be necessary even if the EPA had revised the guidance documents, the EPA could reasonably determine that the costs entailed in revising the guidance documents outweighed the benefits. The EPA has discretion to consider the costs of regulation unless the relevant statute precludes such a consideration. See, e.g., Sierra Club, 294 F.3d at 162-63.
The EPA's approach also addresses New Jersey's concern that allowing states to make RACT determinations by relying on 15-year-old CTGs plus new information, if any, provided by the public in comments is "an inadequate substitute" for requiring each state to undertake a new RACT determination for each source category. As noted, the EPA has directed states to submit supporting documentation along with RACT certifications. Phase 2 Rule, 70 Fed. Reg. at 71,655/2. Thus, the EPA will have available the information needed to verify states' determinations that the previous controls are still appropriate under the 8-hour standard. Additionally, persons disagreeing with a particular RACT certification can seek judicial review of a particular SIP approval. A state may also complete an entirely new RACT analysis if it so chooses. Id. at 71,652/3.
In sum, we hold that the EPA's decision to forego a revision of the nationwide guidelines in favor of case-by-case RACT certifications was reasonable and not inconsistent with the statutory goal of expeditious attainment. Because the Phase 2 Rule requires each state to verify that previously-required RACT controls still satisfy the RACT requirement, we need not address the EPA's assertion that a new RACT determination will likely "result in the same or similar control technology as the initial RACT determination under the 1-hour standard because the fundamental control techniques . . . are still applicable." Id. at 71,654/1. The EPA did not rest the rule upon this ground; each state must "consider new information" - information that may prove the EPA wrong - when the state determines whether previously-required controls "still represent an appropriate RACT level of control." Id. at 71,655/1.
C. Meeting RACT via NOX SIP Call
The NOX SIP Call is a cap-and-trade program that regulates NOX emissions. The program covers 22 states in the Northeast and the District of Columbia, and was intended to address the interstate transport of ozone. See generally Final Rule, Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone, 63 Fed. Reg. 57,356 (Oct. 27, 1998); Michigan v. EPA, 213 F.3d 663, 675, 685-86 (D.C. Cir. 2000). The NOX SIP Call established for each state a "NOX emissions budget," which limits total emissions during the ozone season. Phase 2 Rule, 70 Fed. Reg. at 71,656/3. The EPA also adopted a rule allowing interstate trading of emissions allowances, and all states covered by the NOX SIP Call elected to participate in the interstate program. Thus, a source within a state could meet its emissions target either by installing controls or by purchasing allowances from other sources located anywhere in the region covered by the NOX SIP Call. See id.
The Phase 2 Rule provides that to meet the NOX RACT requirement, "the State need not perform (or submit) a NOX RACT analysis for sources subject to the state's emission cap-and-trade program" where that program meets the NOX SIP Call requirements or, in states achieving CAIR reductions solely from Electricity Generating Units, CAIR requirements. Id. at 71,652/3. Petitioners and intervenors persuasively challenge this provision as being contrary to the express terms of the statute.
Section 172(c)(1) of the Act requires that nonattainment areas achieve "such reductions in emissions from existing sources in the area" as can be achieved by the adoption of RACT. 42 U.S.C. § 7502(c)(1). Thus, the RACT requirement calls for reductions in emissions from sources in the area; reductions from sources outside the nonattainment area do not satisfy the requirement. See id.; see also CAA § 182(b)(2), 42 U.S.C. § 7511a(b)(2) (requiring implementation of RACT with respect to certain VOC sources "in the area" for moderate and above nonattainment areas). Accordingly, participation in the NOX SIP Call could constitute RACT only if participation entailed at least RACT-level reductions in emissions from sources within the nonattainment area. In the preamble to the proposed rule the EPA stated that "the overall emission reductions from sources in the NOX SIP Call cap-and-trade program will achieve more emissions reductions in the nonattainment area than would application of RACT to each of those units," Proposed Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard, 68 Fed. Reg. 32,802, 32,839 (June 2, 2003) (Proposed Rule). The preamble to the final rule does not go as far. Rather, the final preamble states only that the "NOX SIP Call is estimated to achieve a beyond-RACT degree of control regionally," Phase 2 Rule, 70 Fed. Reg. at 71,657. Such regionwide RACT-level reductions in emissions do not meet the statutory requirement that the reductions be from sources in the nonattainment area. Because the EPA has not shown that NOX SIP Call compliance will result in at least RACT-level reductions in emissions from sources within each nonattainment area, the EPA's determination that compliance with the NOX SIP Call satisfies the RACT requirement is inconsistent with the "in the area" requirement and thus violates the plain text of § 172(c)(1).
In an analogous situation, the court invalidated the CAIR trading program because the EPA's regionwide approach made it impossible to tell whether the rule achieved a specific statutory objective. See North Carolina v. EPA, 531 F.3d 896, 906-08 (D.C. Cir. 2008). In developing CAIR, the court explained, the EPA "did not purport to measure each state's significant contribution to specific downwind nonattainment areas and eliminate them in an isolated state-by-state manner." Id. at 907. Despite a statutory provision prohibiting sources "within the State" from contributing significantly to nonattainment in "any other State," CAA § 110(a)(2)(D), 42 U.S.C. § 7410(a)(2)(D), the EPA adopted a regionwide approach to the problem. The court therefore held that the EPA was not exercising its statutory duty, reasoning that "[i]t is unclear how EPA can assure that the trading programs . . . will achieve section 110(a)(2)(D)(i)(I)'s goals if we do not know what each upwind state's 'significant contribution' is to another state." 531 F.3d at 908. Similar reasoning applies to the NOX SIP Call. The EPA has not provided assurance that the NOX SIP Call will achieve the Act's goal of "reductions from existing sources in the area," because it has not evaluated the effect of the program on each nonattainment area.
The EPA responds that its approach "gives meaning to the statute's 'in the area' language" because its technical analysis shows that the cap-and-trade programs achieve greater reductions than would the application of RACT-level controls at each source. EPA Br. at 73. However, the EPA's cited support for this proposition is the statement from the preamble to the proposed rule stating the EPA "believes" participation would "achieve more emissions reductions in the nonattainment area than would application of RACT" to all sources in the area. Proposed Rule, 68 Fed. Reg. at 32,839/2. That statement is unsupported by any record evidence and it does not appear in the preamble to the final rule. The EPA's further response that its technical analysis supports the conclusion that NOX SIP Call participation meets the RACT requirement is no more persuasive. The EPA explains that its analysis showed that sources subject to the NOX SIP Call "collectively" would achieve beyond-RACT reductions in emissions. EPA Br. at 83. But regionwide reductions do not satisfy the "in the area" requirement. The EPA explains further that it found that purchasing allowances was more costly than installing RACT-level control technology and thus "most" sources meeting the NOX SIP call, "assuming rational economic behavior," id., would opt to install controls rather than purchase allowances.
This bare assertion is insufficient to demonstrate that NOX SIP Call compliance would lead to RACT-level reductions from sources in the area. Even if most sources in a nonattainment area installed controls rather than purchasing allowances, a small number of sources purchasing allowances and increasing emissions could mean that overall emissions from sources in the area remained unchanged or even increased.
The EPA's attempt to show ambiguity in the Act is likewise unavailing. The EPA maintains the statute is ambiguous as to whether RACT must be installed at each source in an area, noting that it has previously approved the concept of averaging emissions within a nonattainment area. The EPA reads the statutory phrase "as may be obtained" to indicate that the RACT requirement does not necessarily call for implementation of controls at each and every source, but rather requires an area to achieve at least RACT-level reductions in emissions. Even if the RACT requirement could be met through an emissions-averaging approach within a nonattainment area, averaging emissions across a region does not ensure that any reductions in emissions derive from reductions at sources within a particular area. Even if the EPA were correct that "nothing in the statute precludes consideration of the air quality impact that controls under a region-wide cap-and-trade program may have on NOX within the nonattainment area," EPA Br. at 72, the EPA has not considered the impact of the NOX SIP Call on the air quality within specific nonattainment areas. Therefore the EPA has failed to demonstrate that NOX SIP Call compliance can be equated to RACT compliance.
The EPA's reliance on § 172(c)(6) is misplaced. That section provides that SIPs must include "enforceable emission limitations, and such other control measures . . . including economic incentives such as . . . auctions of emission rights . . . as may be necessary or appropriate to provide for attainment."
42 U.S.C. § 7502(c)(6). The EPA offers that its approach to RACT is consistent with this express authorization of auctions. However, § 172(c)(6) merely authorizes the EPA to approve market-based measures in addition to those controls that are required by CAA § 172(c), including the RACT requirement; it does not authorize the EPA to ...