LEXSEE 375 F.3D 537

SIERRA CLUB, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY,

Respondent. Intervening Respondents: State of Illinois; State of Missouri

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

PRIOR HISTORY: [**1] Petitions to Review Orders

of the Environmental Protection Agency.

COUNSEL: For SIERRA CLUB, Petitioner: Douglas R.

Williams, ST. LOUIS UNIVERSITY, School of Law, St.

Louis, MO USA. Kathleen G. Henry, Bruce A. Morrison,

GREAT RIVERS ENVIRONMENTAL LAW CENTER,

St. Louis, MO USA.

For ENVIRONMENTAL PROTECTION AGENCY,

Respondent: David A. Ullrich, ENVIRONMENTAL

PROTECTION AGENCY, Region 5, Office of the

Regional Counsel, Chicago, IL USA. Eileen T.

McDonough, DEPARTMENT OF JUSTICE,

Environment & Natural Resources Division, Washington,

DC USA.

For STATE OF ILLINOIS, Intervenor: Mary E. Welsh,

OFFICE OF THE ATTORNEY GENERAL, Civil

Appeals Division, Chicago, IL USA.

For STATE OF MISSOURI, Intervenor: Timothy P.

Duggan, Jefferson City, MO USA.

JUDGES: Before EASTERBROOK, KANNE, and

ROVNER, Circuit Judges.

OPINION BY: EASTERBROOK

OPINION

[*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 [**2] 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 [**3] the ozone

standards. It asked the EPA for a formal decision that it

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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 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) [**4] . 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 [**5] 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 [**6]

the Sierra Club does not dispute this at the factual level. It

contends, rather, that photochemical grid modeling is

essential no matter how thorough and rigorous the

maintenance plan may be. Unless the EPA makes a

formal determination that some other modeling system is

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

58 ERC (BNA) 1848; 34 ELR 20043
"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 [**7] 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 [**8] 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 [**9] 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

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

[**10] 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

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375 F.3d 537, *539; 2004 U.S. App. LEXIS 13810, **6;

58 ERC (BNA) 1848; 34 ELR 20043
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, [**11] "

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"

[**12] 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 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 [**13]

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 [**14] 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.

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58 ERC (BNA) 1848; 34 ELR 20043