Sierra Club v. EPA

Nos. 03-2839 & 03-3329

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

375 F.3d 537; 2004 U.S. App. LEXIS 13810; 58 ERC (BNA) 1848;

34 ELR 20043

June 1, 2004, Argued

July 6, 2004, Decided

[*538] EASTERBROOK, Circuit Judge.

Changes to the environmental laws in

1990 reduced the allowable levels of

ozone pollution and set deadlines for

attainment. Clean Air Act Title I,

Part D, subpart 2, 42 U.S.C. §§ 7511

to 7511f. The St. Louis metropolitan

area, initially classified as a

"moderate" nonattainment zone, had

until November 15, 1996, to comply. 42

U.S.C. § 7511(a)(1). A moderate

jurisdiction that missed this deadline

was to be reclassified automatically

as a "serious" nonattainment area, 42

U.S.C. § 7511(b)(2)(A). That change

requires additional costly

anti-pollution steps. One of the

principal differences between the 1990

legislation and its predecessor was

this mandatory reclassification; the

legislation leaves the EPA less

discretion with respect to ozone than

other pollutants. See Whitman v.

American Trucking Associations, Inc.,

531 U.S. 457, 481-86, 149 L. Ed. 2d 1,

121 S. Ct. 903 (2001). Nonetheless,

when St. Louis failed to meet the

deadline, the EPA decided that it had

done well enough that its status

should remain unchanged. In Sierra

Club v. EPA, 311 F.3d 853 (7th Cir.

2002), we held that dispensation

unlawful and directed the EPA to apply

the statute as written. See also

Sierra Club v. EPA, 352 U.S. App. D.C.

357, 294 F.3d 155 (D.C. Cir. 2002).

Delay in compliance required a turn of

the screw even though St. Louis was

making progress.

While the proceedings that led to

our 2002 decision were under way, St.

Louis finally met the ozone standards.

It asked the EPA for a formal decision

that it satisfies the requirements for

ozone. Before designating any area as

in compliance, the EPA must make five

determinations:

The Administrator may not

promulgate a redesignation

of a nonattainment area (or

portion thereof) to

attainment unless--

(i) the

Administrator

determines that

the area has

attained the

national ambient

air quality

standard;

(ii) the

Administrator has

fully approved the

applicable

implementation

plan for the area

under section

7410(k) of this

title;

(iii) the

Administrator

determines that

the improvement in

air quality is due

to permanent and

enforceable

Page 1
reductions in

emissions

resulting from

implementation of

the applicable

implementation

plan and

applicable Federal

air pollutant

control

regulations

[*539] and other

permanent and

enforceable

reductions;

(iv) the

Administrator has

fully approved a

maintenance plan

for the area as

meeting the

requirements of

section 7505a of

this title; and

(v) the State

containing such

area has met all

requirements

applicable to the

area under section

7410 of this title

and part D of this

subchapter.

42 U.S.C. § 7407(d)(3)(E) . The EPA

made all of these findings in 2003 for

the St. Louis metropolitan area (which

spans the border between Missouri and

Illinois, and hence requires

consideration of multiple state

plans). See 68 Fed. Reg. 25418 (May

12, 2003) (Missouri), 68 Fed. Reg.

25442 (May 12, 2003) (Illinois). The

Sierra Club asks us to set aside these

decisions. It does not contest the

agency's finding that the St. Louis

area now meets the national ambient

air quality standard for ozone. Nor

does it challenge the vital third

finding: that "the improvement in air

quality is due to permanent and

enforceable reductions in emissions".

But it insists that St. Louis lacks a

proper "applicable implementation plan

for the area under section 7410(k)"

(requirement (ii)) and that the area's

maintenance plan (requirement (iv))

does not meet all requirements of §

7505a. We start with the challenge to

the maintenance plan.

A maintenance plan must take into

account the sort of things, such as

population growth and changes to the

industrial base, that might cause

existing pollution-control measures to

become inadequate in the future even

if they served well in the past. Ozone

at or near ground level comes

principally from chemical reactions

involving its precursors, nitrous

oxides (NO[x]) and volatile organic

compounds. Both implementation plans

and maintenance plans thus must

provide for controls on the emission

of these precursors. But what

emissions are likely in the future,

and what steps could reduce them by

the required amount? Accurate

projections depend on supplying good

data to good models. All concrete

requirements of § 7505a, to which

requirement (iv) refers, have been

satisfied. But a maintenance plan

serves as an amendment to the local

implementation plan, and 42 U.S.C. §

7511a(c)(2)(A) and (j)(1) thus may

affect it. These subsections require

both multi-state areas and serious

nonattainment areas to "use

photochemical grid modeling or any

other analytical method determined [by

the EPA], in [its] discretion, to be

at least as effective." Missouri and

Illinois have not promised to use

photochemical grid modeling as part of

their maintenance endeavors. The

Sierra Club insists that all

multi-state areas must use

photochemical grid modeling as long as

their maintenance plans are in effect.

The EPA thinks that other tools can

suffice--and the Sierra Club does not

dispute this at the factual level. It

contends, rather, that photochemical

grid modeling is essential no matter

Page 2

375 F.3d 537, *538; 2004 U.S. App. LEXIS 13810;

58 ERC (BNA) 1848; 34 ELR 20043
how thorough and rigorous the

maintenance plan may be. Unless the

EPA makes a formal determination that

some other modeling system is "at

least as effective"--and the EPA did

not make such a finding, even though

it appears to believe that the St.

Louis region's methods are at least as

effective--then the method named in

the statute is indispensable.

Thus we have a straightforward

issue: must every multi-state area use

photochemical grid modeling

continually (at least until a formal

equivalence finding has been made)?

The EPA's view does not contradict the

statute: § 7511a does not refer to

maintenance plans at all, and it is

only through the back door (because

the maintenance plan amends the

implementation plan) that this section

enters the picture. What is more, §

7511a deals with [*540]

pre-attainment requirements. This is

the foundation of the agency's view

that an area need not use

photochemical grid modeling as part of

a maintenance plan. That is not an

inevitable reading of the statute, but

the EPA receives the benefit of

deference under Chevron U.S.A. Inc. v.

Natural Resources Defense Council,

Inc., 467 U.S. 837, 81 L. Ed. 2d 694,

104 S. Ct. 2778 (1984), which American

Trucking held applicable to the ozone

subchapter. See 531 U.S at 481.

Congress required nonattainment areas

to shoulder more substantial burdens.

St. Louis, like any other place that

wants to keep a valuable attainment

designation, has every incentive to

choose adequate modeling tools. If it

does not, and as a result slips out of

compliance as its population or

industry changes, then it must pay a

steep price for backsliding. It is

sensible for the federal agency to

give localities that must pay the

piper some opportunity to call the

tune. Methods of projecting

developments differ in accuracy and

cost; allowing the affected region to

make a cost-benefit comparison has

much to recommend it. Recall that the

Sierra Club does not contend that

Missouri and Illinois have chosen

irresponsibly, but only that the

statute grants them (and the EPA) no

option. The EPA's approach has

received the approbation of the Sixth

Circuit. See Wall v. EPA, 265 F.3d

426, 436 (6th Cir. 2001). We see no

reason to create a conflict.

Nor are we persuaded by the Sierra

Club's argument that the maintenance

plans fail to describe all contingency

measures that may be applied if

problems arise. The statute does not

call for any particular degree of

precision in the period after

attainment (contrast § 7502(c)(9),

which demands "specific measures" in

the pre-attainment period), so again

the EPA (and the affected states) had

choices to make, choices that may be

gainsaid only if obviously misguided.

Intelligent decisions may depend on

the nature of future developments.

Missouri and Illinois have committed

themselves to action; that they have

reserved some discretion about the

means does not spoil their plans. See

Greenbaum v. EPA, 370 F.3d 527, 2004

U.S. App. LEXIS 10785 *24-38 (6th Cir.

June 3, 2004). Cf. BCCA Appeal Group

v. EPA, 355 F.3d 817 (5th Cir. 2003).

Let us turn, then, to requirement

(ii): that "the Administrator has

fully approved the applicable

implementation plan for the area under

section 7410(k) of this title". This

mentions § 7410(k), but the

cross-reference is unilluminating. It

does not answer one vital question:

what kind of implementation plan is

"applicable"? Although the parties

have disputed many technical issues,

most of their disagreement boils down

to a single question: Is an

"applicable" plan the same as the

area's pre-attainment plan (as Sierra

Club contends), or is it limited to

those measures that have proved to be

necessary to achieve compliance (the

EPA's view)? The Sierra Club contends

that every attainment plan for an area

at the serious level must specify the

Page 3

375 F.3d 537, *539; 2004 U.S. App. LEXIS 13810;

58 ERC (BNA) 1848; 34 ELR 20043
implementation of all reasonably

available control measures (though the

D.C. Circuit disagrees, see Sierra

Club, 294 F.3d at 162-63), and must

ensure a 15% reduction in the emission

of volatile organic compounds (though

the Tenth Circuit disagrees, see

Sierra Club v. EPA, 99 F.3d 1551,

1555-56 (10th Cir. 1996)), but these

are sidelights. The real dispute is

whether St. Louis, having been

promoted to the serious category by

delay in meeting the national ozone

standard, must use control measures

appropriate to a serious nonattainment

area as a condition of being

designated as an attainment area.

In a nutshell, the EPA's view is

that the "applicable" plan requires an

area to continue doing whatever

worked, and [*541] nothing more. In

other words, the EPA wants the plan to

contain all provisions that required

some set of controls to be in place

before the date the area met the

national standard. Here's a concrete

example, and a principal bone of

contention between the parties.

Moderate nonattainment areas must

ensure that every source of more than

100 tons (annually) of precursor

chemicals takes prescribed steps to

curtail their emission. For serious

nonattainment areas, the threshold

falls to 50 tons. 42 U.S.C. §

7511a(c). Our 2002 decision concluded

that St. Louis must be treated as a

serious nonattainment area--although

it was classified as a moderate area

in 2000, when it filed the application

to be reclassified as an attainment

area. Even the plan applicable to a

serious nonattainment area would allow

newly covered sources some lead time

to limit their emissions. 42 U.S.C. §

7511(a)(1), (a)(5). Before that time

arrived, St. Louis met the national

ozone standard. Sierra Club believes

that businesses in the 50 to 100-ton

range still must implement controls;

the EPA believes that an "applicable"

implementation plan need not require

this. The Sierra Club's definition of

"applicable, " by contrast, is

"whatever should have been in the plan

at the time of attainment" rather than

"whatever actually was in the plan and

already implemented or due at the time

of attainment."

Because the statute does not define

"applicable," there is no ineluctable

basis for a choice between these

options. See Wall, supra, 265 F.3d at

438-40. Both are conceivable

understandings of the law. Chevron

therefore affords the EPA leeway. (The

St. Louis designation is the result of

notice-and-comment rulemaking under

explicit statutory delegation; this is

the core of Chevron's domain. See

United States v. Mead Corp., 533 U.S.

218, 150 L. Ed. 2d 292, 121 S. Ct.

2164 (2001).) The EPA's view is at

least as sensible as the Sierra

Club's, likely more so. Requirement

(ii) reads: "the Administrator has

fully approved the applicable

implementation plan for the area under

section 7410(k)". That's a curiously

indirect way of requiring a plan to

continue without change, or become

more onerous. Why didn't the statute

say: "the Administrator has determined

that the area will continue to abide

by the implementation plan that was,

or should have been, in place"? A word

such as "applicable" implies that

there may be differences between the

contents of the pre-attainment plan

and those required for the

post-attainment period. Against this

the Sierra Club points to the way

"applicable" is used in other parts of

the Clean Air Act (e.g., § 7511a(i)),

but that statute is too complex a

compromise, and has been amended too

many times, to indulge the assumption

that all of its words must be used

consistently in all of its

subsections. "Applicable" is a protean

word that takes color from context; it

lacks a single, enduring meaning.

Under the Sierra Club's view,

compliance does not have a payoff: the

residents and businesses of St. Louis

must take the same costly steps that

would be required had the area been

Page 4

375 F.3d 537, *540; 2004 U.S. App. LEXIS 13810;

58 ERC (BNA) 1848; 34 ELR 20043
less successful. As the reason to take

additional steps was to achieve an

adequate reduction in ozone, it would

be odd to require them even when they

turned out to be unnecessary. Some

parts of the Clean Air Act forbid

cost-benefit analysis, see Union

Electric Co. v. EPA, 427 U.S. 246, 49

L. Ed. 2d 474, 96 S. Ct. 2518

(1976)--and subpart (2) on ozone is

one of these, to the extent it

mandates the progression to more

severe controls until compliance has

been achieved--but when the statute is

ambiguous the EPA is free to take

costs into account. That's the upshot

of Chevron. See also Cass R. Sunstein,

Risk and Reason: Safety, Law, and the

Environment (2002); Stephen Breyer,

Breaking the Vicious [*542] Circle:

Toward Effective Risk Regulation

(1993). The agency's approach strikes

us as sensible.

Much of the Sierra Club's argument

assumes that reclassification of St.

Louis to serious nonattainment was

some sort of punishment that its

residents should not be allowed to

escape. Not at all. "The St. Louis

region" is an abstraction, a

convenient collective phrase for

millions of people whose own lives and

fortunes are at issue.

Reclassification was a combination of

(a) goad (clean up or suffer expensive

measures), and (b) palliative (sterner

measures expedite compliance). Once an

area has meet the national air quality

standard, neither rationale calls for

extra stringency; indeed, the

statutory system would not be much of

a goad if the tighter controls must

continue even after attainment. It is

not as if neighborhood bakeries and

other smallish point sources were

themselves blameworthy and in need of

20 lashes for transgressions.

One final subject requires brief

comment. While the EPA was considering

St. Louis's request for designation as

an attainment area for ozone, the D.C.

Circuit vacated some elements of the

EPA's national regulations for the

control of nitrous oxides (known as

the NO[x] SIP Call). See Michigan v.

EPA, 341 U.S. App. D.C. 306, 213 F.3d

663, 685, 695 (D.C. Cir. 2000). After

redesignating St. Louis, the EPA

revised the NO[x] SIP Call. See 69

Fed. Reg. 21604 (Apr. 21, 2004). If

the regulation adopted in 2004 implies

a revision of the implementation and

maintenance plans for the St. Louis

region, the EPA will need to take

action. But the Sierra Club's

petitions for review do not raise any

question about the implementation of

the NO[x] SIP Call in St. Louis.

The petitions for review are

denied.

Page 5

375 F.3d 537, *541; 2004 U.S. App. LEXIS 13810;

58 ERC (BNA) 1848; 34 ELR 20043