LEXSEE 294 F.3D 155

SIERRA CLUB, PETITIONER v. ENVIRONMENTAL PROTECTION AGENCY

AND CHRISTINE TODD WHITMAN, ADMINISTRATOR RESPONDENTS

Nos. 01-1070 & 01-1158

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

294 F.3d 155; 352 U.S. App. D.C. 357; 2002 U.S. App. LEXIS 13141; 32 ELR 20760

February 4, 2002, Argued

July 2, 2002, Decided

SUBSEQUENT HISTORY: Related proceeding at

Sierra Club v. EPA, 360 U.S. App. D.C. 1, 356 F.3d 296,

2004 U.S. App. LEXIS 1560 (2004)

PRIOR HISTORY: [**1] On Petitions for Review of

an Order of the Environmental Protection Agency.

DISPOSITION: Petition for review was granted.

Vacated and remanded.

COUNSEL: David S. Baron argued the cause for

petitioner. With him on the briefs was Howard I. Fox.

Martin F. McDermott, Attorney, U.S. Department of

Justice, argued the cause for respondents. With him on

the brief were John C. Cruden, Assistant Attorney

General, and Sara Schneeberg, Attorney, U.S.

Environmental Protection Agency. David A. Carson,

Attorney, U.S. Department of Justice, entered an

appearance.

Thurbert E. Baker, Attorney General, State of Georgia,

Patricia T. Barmeyer, Special Assistant Attorney General,

Jeremiah W. (Jay) Nixon, Attorney General, State of

Missouri, James R. Layton, Solicitor, James E. Ryan,

Attorney General, State of Illinois, A. Benjamin Goldgar,

Assistant Attorney General, and Donald Trahan were on

the brief for amici curiae State of Georgia, et al., in

support of respondent. Katherine L. Rhyne entered an

appearance.

Randolph A. Beales, Attorney General, Commonwealth

of Virginia, Roger L. Chaffe, Senior Assistant Attorney

General, and Carl Josephson, Assistant Attorney General,

were on the brief for amicus curiae Commonwealth of

Virginia, in support of respondent.

Albert [**2] M. Ferlo, Jr., Sheila D. Jones, and John J.

Bosley were on the brief for amicus curiae Metropolitan

Washington Air Quality Committee, in support of

respondent.

JUDGES: Before: GINSBURG, Chief Judge,

EDWARDS and SENTELLE, Circuit Judges. Opinion

for the Court filed by Chief Judge GINSBURG.

OPINION BY: GINSBURG

OPINION

[*158] GINSBURG, Chief Judge: The Sierra Club

petitions for review of a decision by the Environmental

Protection Agency approving revisions to the state

implementation plans for ozone in the Washington, D.C.

Metropolitan Area. The Club contends the EPA was

without authority to approve revised SIPs that extend the

Area's deadline for attainment and do not provide for the

States concerned to adopt reasonably available control

measures, annual rates of progress in reducing emissions,

Page 1
and specific contingency measures to take effect should

the Area fail to achieve scheduled reductions in

emissions.

We hold that the EPA exceeded its authority and that

its decision is otherwise arbitrary and capricious in the

above respects. Therefore, we grant the petition and

remand this matter to the EPA for further proceedings.

I. Background

Section 109 of the Clean Air Act directs the EPA to

promulgate [**3] National Ambient Air Quality

Standards (NAAQS) for ozone, see 42 U.S.C. § 7409, and

Title V of the Act delegates to the states primary

responsibility for implementing those standards, see id.

§§ 7407, 7410. A state discharges this responsibility by

developing and enacting a state implementation plan

(SIP) that provides for "implementation, maintenance,

and enforcement" of the standards in each "air quality

control region" within its jurisdiction, subject to the

EPA's approval and supervision. Id. § 7410(a)(1).

If an area "does not meet the NAAQS or it

contributes to ambient air quality in a nearby area that

does not meet the NAAQS," then the EPA designates the

area as one of "nonattainment," id. § 7407(d)(1)(A), and

classifies the degree of nonattainment in the area as

marginal, moderate, serious, severe, or extreme, see id.§

7511(a), (b)(2). This classification determines both the

date by which the area must attain the NAAQS and the

stringency of the measures that the area must implement

in the meantime to reduce emissions of volatile organic

compounds (VOCs) and oxides of nitrogen (NOx), both

of which are the precursors of ozone. [**4] See id. §

7511(a).

All states were required to revise their SIPs to bring

any areas of "serious" nonattainment into attainment "as

expeditiously as practicable but not later than" November

15, 1999. Id. §§ 7511(a)(1), 7511a(c)(2)(A). The Act

specifies that a revised SIP must contain certain elements,

including: "the implementation of all reasonably

available control measures [RACM]," id. § 7502(c)(1);

annual demonstrations of "reasonable further progress,"

id. § 7502(c)(2), defined--with an exception not here

relevant--as a reduction in the emission of VOCs at a rate

of "at least 3 percent of baseline emissions each year," id.

§ 7511a(c)(2)(B)(i); and contingency measures "to be

undertaken if the area fails to make reasonable further

progress, or to attain" the NAAQS by November 15,

1999, id. § 7502(c)(9). The states were [*159] required

to submit the revised SIPs to the EPA for approval, which

the Agency was required to grant if the "revision [met] all

the requirements ? [and] would be adequate to attain and

maintain the [NAAQS] by the attainment date specified."

Id. § 7509a(a)(1), (2).

An area of serious nonattainment that failed to reach

attainment [**5] by the deadline was to be reclassified

by operation of law to "severe" nonattainment status. See

id. § 7511(b)(2)(i). The deadline for attainment would

then be extended until November 15, 2005, see id. §

7511(a)(1), but the area would be required again to revise

its SIP to implement still more rigorous programs for

monitoring and reducing emissions, see id. §

7511(b)(2)(A)(i).

The Washington, D.C. Metropolitan Area comprises

the District of Columbia and several counties each in

Maryland and Virginia. In 1991 the EPA declared the

Washington Area to be in "serious" nonattainment of the

NAAQS for ozone. See Designation of Areas for Air

Quality Planning Purposes, 56 Fed. Reg. 56,694, 56,738,

56,772, 56,841 (Nov. 6, 1991) (codified respectively at

40 C.F.R. §§ 81.309, .321, .347 (2002)). In response, the

District of Columbia Department of Health, the Maryland

Department of the Environment, and the Virginia

Department of Environmental Quality (hereinafter

referred to as "the States") submitted nonattainment SIPs

for the Washington Area, see Approval & Promulgation

of Air Quality Implementation Plans, 66 Fed. Reg. 586

[**6] (Jan. 3, 2001) (Approval), pursuant to section

172(b) of the Act, 42 U.S.C. § 7502(b).

The three proposed SIPs did not provide for

attainment by November 15, 1999. See Proposed Rule,

Approval & Promulgation of Air Quality Implementation

Plans, 64 Fed. Reg. 70,460, 70,476-77 (Dec. 16, 1999)

(Proposed Approval). Instead, the States requested that

the EPA extend the attainment deadline for the

Washington Area until November 15, 2005 without

reclassifying as "severe" the nonattainment status of the

Area. See id. The EPA previously had recognized that for

certain "downwind areas, transport [of ozone] from

upwind areas had interfered with their ability to

demonstrate attainment" by the deadlines established in

the Act. Extension of Attainment Dates for Downwind

Transport Areas, 64 Fed. Reg. 14,441, 14,442 (Mar. 25,

1999). As a result, according to the EPA, many

downwind areas "faced the prospect of being reclassified

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2002 U.S. App. LEXIS 13141, **2; 32 ELR 20760
... to a higher nonattainment classification in spite of the

fact that pollution that is beyond their control contributes

to the levels of ozone they experience." Id. With this in

mind, the Agency granted the States' [**7] request for

an extension, see Approval, 66 Fed. Reg. at 630-31,

determining that the transport of ozone and its precursors

into the Washington Area could delay the date by which

the Area would reach attainment, id.

The States did not propose in their revised SIPs to

adopt any RACM, and the EPA concluded that none was

warranted because "additional emission control measures

would not advance the attainment date." Id. at 608/1. Nor

did the revised SIPs provide for annual rates of progress

(ROP) in reducing emissions for the years after 1999, see

id. at 603; or for any contingency measures "to make up

for any emission reduction shortfall, either in

achievement of ROP milestones or for failure to attain"

the NAAQS, see id. at 615/2. The EPA determined that

these omissions, too, were warranted. It deemed the ROP

requirement "unreasonable" in light of the transport of

ozone into the Washington Area, id. at 603/2, and it held

that contingency measures are not mandatory elements of

a SIP revision that establishes the attainment deadline and

ROP for an [*160] area, see id. at 615/3. Consequently,

[**8] the Agency approved the revised SIPs.

The Sierra Club now petitions for review of that

decision. Amicus briefs have been filed by the

Metropolitan Washington Air Quality Committee, the

State of Virginia, and the States of Georgia, Illinois,

Louisiana, and Missouri, all in support of the EPA's

decision approving the revised SIPs.

II. Analysis

The Sierra Club claims that the Approval is unlawful

for four reasons: (1) the EPA had no authority to extend

the attainment deadline for the Washington Area; (2) the

EPA applied an unreasonable standard for determining

whether a control measure is "reasonably available" for

purposes of § 172(c)(2) of the Act; (3) the Act prohibits

the EPA from approving a SIP that does not provide for

ROP reductions; and (4) the Act prohibits the EPA from

approving a SIP that does not include contingency

measures.

We review the EPA's interpretation of the Clean Air

Act under the standards set out in Chevron U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 81 L. Ed.

2d 694, 104 S. Ct. 2778 (1984). If the Congress "has

directly spoken to the precise question at issue," id. at

842, then we must "give effect to [**9] [its]

unambiguously expressed intent," id. at 843. If, however,

the intent of the Congress is ambiguous with respect to

the question before us, then we defer to the Agency's

interpretation if it is "based on a permissible construction

of the statute." Id.

A. Extension of the Attainment Deadline

We agree with the Sierra Club that the plain terms of

the Act preclude an extension of the sort the EPA granted

here. Pursuant to § 181(a)(1), 42 U.S.C. § 7511(a)(1),

"each" area of "serious" nonattainment was required to

meet the NAAQS by November 15, 1999. That deadline

could be extended in certain limited circumstances or

when an area was reclassified as one of "severe"

nonattainment. Id. § 7511(b)(2)(i), (3). In this case, the

EPA neither determined that the Washington Area fit

those limited circumstances nor acknowledged that the

Area was reclassified as "severe."

The EPA characterizes the issue before the court as

follows: "whether an attainment date extension is

available without an accompanying reclassification to

'severe' nonattainment status where the Washington area's

ability to attain has been demonstrably compromised by

[**10] upwind emissions outside its control." Fair

enough, but as the Sierra Club points out, the Act details

the conditions in which the EPA may extend the

attainment deadline, without reclassification, to account

for upwind emissions that compromise an area's ability to

come into attainment, and none of them is implicated

here. For example, the Act exempts from the attainment

deadlines any area that would be in attainment "but for

emissions emanating from outside of the United States,"

42 U.S.C. § 7509a(b); and "any ozone nonattainment area

that does not include, and is not adjacent to, any part of a

Metropolitan Statistical Area," id. § 7511a(h)(1),

provided the "emissions within the area do not make a

significant contribution to the ozone concentrations

measured in the area or in other areas," id. § 7511a(h)(2).

We cannot but infer from the presence of these specific

exemptions that the absence of any other exemption for

the transport of ozone was deliberate, and that the

Agency's attempt to grant such a dispensation is contrary

to the intent of the Congress.

The EPA also contends the Approval "falls within

this Court's parameters for [*161] when it will look

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2002 U.S. App. LEXIS 13141, **6; 32 ELR 20760
[**11] beyond a 'literal' reading of a statute," but the

Agency does not show that this is one of those "rare cases

[in which] the literal application of a statute will produce

a result demonstrably at odds with the intentions of its

drafters." Engine Mfrs. Ass'n v. EPA, 319 U.S. App. D.C.

12, 88 F.3d 1075, 1088 (D.C. Cir. 1996). Because our

"role is not to 'correct' the text so that it better serves the

statute's purposes," id., we will not "ratify an

interpretation that abrogates the enacted statutory text

absent an extraordinarily convincing justification,"

Appalachian Power Co. v. EPA, 346 U.S. App. D.C. 38,

249 F.3d 1032, 1041 (D.C. Cir. 2001). Here the EPA

asserts that "as a matter of 'logic and statutory structure,'

Congress 'almost surely' could not have meant to require"

the Agency to treat the Washington Area as one of severe

nonattainment merely because its "attainment has been

temporarily stalled due to transported pollution." This

assurance does nothing to persuade us that, although §

181(a)(1), 42 U.S.C. § 7511(a)(1), as written sets a

deadline without an exception for setbacks owing to

ozone transport, "all the other evidence from the [**12]

statute points the other way," United States Nat'l Bank of

Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439,

455, 124 L. Ed. 2d 402, 113 S. Ct. 2173 (1993); see also

Engine Mfrs., 88 F.3d at 1088 ("there must be evidence

that Congress meant something other than what it

literally said before a court can depart from plain

meaning").

We reject also the EPA's argument that we must

accept its interpretation of the Act in order to give effect

to the "broader congressional intent not to punish

downwind areas affected by ozone transport." The most

reliable guide to congressional intent is the legislation the

Congress enacted and, as we have seen, the Act itself

reveals no intention to allow for an extension in

circumstances like those affecting the Washington Area.

Similarly, it is of no moment that the extension may be,

as the Agency claims, "a reasonable accommodation of ...

the statutory attainment date and interstate transport

provisions"; it is not the accommodation the Congress

made. An agency may not disregard "the Congressional

intent clearly expressed in the text simply by asserting

that its preferred approach would be better policy."

Engine Mfrs., 88 F.3d at 1089. [**13]

Finally, the EPA argues that our decision in Natural

Res. Def. Council, Inc. v. EPA, 306 U.S. App. D.C. 43, 22

F.3d 1125, 1135 (D.C. Cir. 1994), approving its

extension of the deadlines by which states had to submit

elements of their SIPs, compels a similar result in this

case. Although we upheld the EPA's decision in that case

to extend the deadline for compliance with a procedural

requirement of the Act, the Agency's failure to meet its

own deadline for providing guidance to the states

necessitated that we do so, see id., 22 F.3d at 1135 ("The

agency's failure to meet its November 15, 1991 deadline

... made it impossible for states ... to meet their November

15, 1992 ... submission deadline"). In extending another

procedural deadline under similar circumstances, we

since have emphasized the importance that "the

attainment deadlines remain intact, complete with

additional program obligations in the event of

nonattainment, irrespective of a state's dereliction of the

SIP process," NRDC v. Browner, 57 F.3d 1122, 1127

(D.C. Cir. 1995). Unlike the various deadlines by which

the states must submit proposals, the attainment deadlines

are [**14] "central to the ... regulatory scheme and ...

leave[] no room for claims of technological or economic

infeasibility." Union Elec. Co. v. EPA, 427 U.S. 246, 258,

49 L. Ed. 2d 474, 96 S. Ct. 2518 (1976).

In sum, to permit an extension of the sort urged by

the EPA would subvert the purposes of the Act. Cf.

NRDC v. Browner, [*162] 57 F.3d at 1128 (extension of

procedural deadline "not incompatible with the

multi-faceted statutory scheme as a whole"). Therefore,

we hold that the EPA was without authority in the Act or

in our precedent to extend the attainment deadline for the

Washington Area.

B. Reasonably Available Countermeasures

Section 172(c)(1) of the Act directs that a state's

revised SIP "shall provide for the implementation of all

reasonably available control measures [RACM] as

expeditiously as practicable." 42 U.S.C. § 7502(c)(1). As

the EPA has interpreted § 172(c)(1), a state must

"consider all potentially available measures to determine

whether they are reasonably available for implementation

in the area, and whether they would advance the [area's]

attainment date." Approval, 66 Fed. Reg. at 607 [**15]

/3. The state may "reject measures as not being RACM,"

however, if "they would not advance the attainment date,

would cause substantial widespread and long-term

adverse impacts, or would be economically or

technologically infeasible." Id. at 608/1.

The proposed revisions to the SIPs for the

Washington Area "contained no measures adopted for the

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2002 U.S. App. LEXIS 13141, **11; 32 ELR 20760
sole purpose of satisfying the RACM requirement," id. at

609/3, so the EPA reviewed on its own initiative all

control measures that could qualify as RACM under its

definition, see id. at 607/3. After considering "all

potential categories of stationary and mobile sources that

could provide additional emission reduction," id. at

611/2, the EPA "concluded that additional emission

control measures would not advance the attainment date

and therefore do not constitute RACM," id. at 608/1.

The Sierra Club maintains that treating as potential

RACM only those measures that would advance the date

at which an area reaches attainment "conflicts with the

Act's text and purpose and lacks any rational basis." This

is a misreading of both text and context.

The Act, on its [**16] face, neither elaborates upon

which control measures shall be deemed "reasonably

available," nor compels a state to consider whether any

measure is "reasonably available" without regard to

whether it would expedite attainment in the relevant area.

Further, the EPA reasonably concluded that because the

Act "uses the same terminology in conjunction with the

RACM requirement" as it does in requiring timely

attainment, compare 42 U.S.C.§ 7502(c)(1) (requiring

implementation of RACM "as expeditiously as

practicable but no later than" the applicable attainment

deadline), with id. § 7511(a)(1) (requiring attainment

under same constraints), the RACM requirement is to be

understood as a means of meeting the deadline for

attainment, Approval, 66 Fed. Reg. at 610/2. Because the

statutory provision is ambiguous and the EPA's

construction of the term "RACM" is reasonable, we defer

to the Agency. See Chevron, 467 U.S. at 843.

The Sierra Club also claims it was unreasonable for

the EPA to reject certain measures as RACM on the

ground that they could not be implemented without

"intensive and costly effort." Far from erecting thereby

[**17] an unreasonably "subjective and undefined"

standard, as the Sierra Club argues, see Pearson v.

Shalala, 334 U.S. App. D.C. 71, 164 F.3d 650, 660-61

(D.C. Cir. 1999), the EPA here did no more than give

familiar content to an insufficiently specified concept.

The Congress's choice of the phrase "reasonably

available" clearly bespeaks its intention that the EPA

exercise discretion in determining which control

measures must be implemented, and neither that phrase

[*163] nor any other in § 172(c)(1) suggests that the

Congress intended to preclude the EPA, in so doing, from

considering the costs of its decisions. Compare Natural

Res. Def. Council, Inc. v. EPA, 263 U.S. App. D.C. 166,

824 F.2d 1146, 1157 (D.C. Cir. 1987) (en banc)

(rejecting "position that, as a matter of statutory

interpretation, cost and technological feasibility may

never be considered under the Clean Air Act unless

Congress expressly so provides"), with Whitman v. Am.

Trucking Ass'n, 531 U.S. 457, 465, 149 L. Ed. 2d 1, 121

S. Ct. 903 (2001) (cost considerations precluded when

statute "instructs the EPA to set primary ambient air

quality standards 'the attainment and maintenance [**18]

of which ... are requisite to protect the public health' with

'an adequate margin of safety' ") (quoting 42 U.S.C. §

7409(b)(1)).

That the EPA's definition of RACM is valid does not

end the matter, however; as the Sierra Club points out,

the Agency failed to consider whether any particular

measures fell within that definition. In its Proposed

Approval, the EPA noted that "measures ... such as

retrofitting diesel trucks and buses, and controlling

ground service equipment at airports [could] ... if taken

together ... provide significant emission reductions for

attainment purposes." 64 Fed. Reg. at 70,468. The EPA

made no mention of these measures or measures like

them, however, either in its analysis of potential RACM

for the Washington Area or in the Approval document.

This omission--whether the result of inadvertence or of

an unexplained change of course--renders the EPA's

decision arbitrary and capricious. See Motor Vehicle

Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 57, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983) ("an

agency changing its course must supply a reasoned

analysis"). Consequently, we must invalidate [**19] the

Approval of the revised SIPs and remand this matter to

the EPA to determine which measures, if any, are RACM

to be implemented by the States in this case.

C. Rate of Progress Reductions

The Sierra Club argues next that the EPA could not

approve the SIPs for the Washington Area because the

plans fail to provide for rate of progress reductions for the

years after 1999. We agree.

The Act provides that revisions to a SIP for an area

of serious nonattainment must reduce the emission of

VOCs by "at least 3 percent of baseline emissions each

year," unless the EPA determines that a lesser reduction

is called for "in light of technological achievability." 42

U.S.C. § 7511a(c)(2)(B)(i), (ii). As the Sierra Club

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2002 U.S. App. LEXIS 13141, **15; 32 ELR 20760
observes, therefore, with an attainment date in 2005, "the

rate of progress plan for the Washington area had to

demonstrate a 9% reduction in emissions from 1996 to

1999, another 9% from 1999 to 2002, and another 9%

from 2002 to 2005." Yet the SIPs provide for no

reductions after 1999, and the EPA approved the

omission on the ground that "it would be unreasonable to

lock the downwind area into fixed progress requirement

reductions from local sources, [**20] when the

combination of local reductions with upwind area source

emission reductions is what will bring the area into

attainment." Approval, 66 Fed. Reg. at 603/2.

The EPA's reason is of no moment. The Act by its

terms makes the 3% annual minimum rate of progress a

prerequisite for approval of a revised SIP. The EPA

therefore had no authority to approve the SIPs for the

Washington Area notwithstanding the omission of a rate

of progress plan for the years after 1999.

[*164] D. Contingency Measures

Finally, the Sierra Club argues that the absence of

contingency measures also precludes approval of the

revised SIPs for the Washington Area. Again, we agree.

Section 172(c)(9) of the Act requires that a revised

SIP include "specific measures to be undertaken if the

area fails to make reasonable further progress, or to attain

the national primary ambient air quality standard by the

attainment date." 42 U.S.C. § 7502(c)(9); see also id. §

7511a(c)(9) (revised SIP for area of serious

nonattainment "shall provide for the implementation of

specific measures to be undertaken if the area fails to

meet any applicable milestone"). The EPA maintains that

[**21] "contingency measures are required as part of the

overall nonattainment plan, not as a feature of each

component of that plan." Compare 42 U.S.C. §

7502(c)(9) ("plan shall provide for the implementation"

of contingency measures), with, e.g., id. § 7502(c)(1)

("plan provisions shall provide" for implementation of

RACM). Therefore, says the EPA, it lawfully could

approve the revised provisions of the SIPs for the

Washington Area despite the absence of contingency

measures therein.

The answer to the EPA's argument is, as the Sierra

Club points out, to be found in § 172(c), which lists the

elements that must be included in a revised SIP for an

area in nonattainment. That section specifically declares:

The plan provisions (including plan

items) required to be submitted under this

part shall comply with the following: ...

(9) Contingency measures

Such plan shall provide for the

implementation of specific measures to be

undertaken if the area fails to make

reasonable further progress, or to attain the

national primary ambient air quality

standard by the attainment date applicable

under this part. Such measures shall be

included in the plan [**22] revision as

contingency measures to take effect in any

such case without further action by the

State or the Administrator.

Id. § 7502(c); see also id. § 7511a(c)(9) (requiring that

contingency measures "be included in the plan revision"

for area of serious nonattainment).

As can be seen from the statute itself, the EPA

simply errs in suggesting that a state need not include

contingency measures in the revisions to the SIP it

submits for an area of nonattainment. For this reason, too,

the EPA lacked authority to approve the revised SIPs

submitted by the States in this case.

III. Conclusion

For the foregoing reasons, the EPA's approval of the

revised SIPs for the Washington Metropolitan Area is

vacated, and this matter is remanded to the Agency for

further consideration.

So ordered.

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