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1. Am. Corn Growers Ass’n v. Epa, 291 F.3d 1

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Ann Lyons
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Am. CornGrowers Ass’n v. Epa

United States Court of Appeals for the District of Columbia Circuit

February 25, 2002, Argued ; May 24, 2002, Decided

No. 99-1348, Consolidated with Nos. 99-1349, 99-1350, 99-1351, 99-1352, 99-1357, 99-1358,

99-1359, 01-1111, 01-1112, 01-1113

Reporter: 291 F.3d 1; 2002 U.S. App. LEXIS 9931; 351 U.S. App. D.C. 351; 54 ERC (BNA) 1417;

32 ELR 20658

AMERICAN CORN GROWERS

ASSOCIATION, PETITIONER v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT; STATE OF MICHIGAN,

DEPARTMENT OF ENVIRONMENTAL

QUALITY, ET AL., INTERVENORS

Subsequent History: [**1] Rehearing Denied

September 19, 2002, Reported at: 2002 U.S.

App. LEXIS 20119. Rehearing En Banc Denied

September 19, 2002, Reported at: 2002 U.S.

App. LEXIS 20120.

Disposition: Court vacated the rule in part and

sustained it in part.

Core Terms

visibility, impairment, haze rule, haze, pollutant,

air, regional, technology, emission, progress,

emit, anticipate, national park, degrade, retrofit,

transport, air quality, downwind, promulgate,

wilderness area, deteriorate, group-bart,

implementation plan, statutory factors,

source-by-source, stationary, install, mandatory,

deadline, notice

Case Summary

Procedural Posture

The Environmental Protection Agency (EPA)

promulgated a final rule to address regional haze

(the Haze Rule), (July 1, 1999), which called for

states to design and implement regional haze

programs to clear the air in national parks and

wilderness areas. 40 C.F.R. §§ 81.401 through

81.437. Various petitioners challenged the Haze

Rule and its Best Available Retrofit Technology

(BART) requirements, 40 C.F.R. § 51.308(e).

Overview

The EPA’s Haze Rule called for states to play the

lead role in designing and implementing regional

haze programs to clear the air in national parks

and wilderness areas. 40 C.F.R. §§ 81.401

through 81.437. Upon review, the court of

appeals conclude that the Haze Rule’s BART

provisions were contrary to the text, structure

and history of § 169A of the Clean Air Act

(CAA), 42 U.S.C.S. § 7491, because the rule

isolated 42 U.S.C.S. § 7491(g)(2)’s benefit

calculation and constrained authority Congress

conferred on the states. Although the petitioners

also contended that no concept of a group or

area-wide BART determination could ever be

consistent with the CAA, the court chose not to

decide that broad issue. The court held only that

the Haze Rule’s treatment of § 7491(g)(2)’s

benefit calculation and its infringement on

states’ authority under the CAA rendered the

BART provisions of the Haze Rule

impermissible. Accordingly, the court denied the

petitions for review of the natural visibility goal,

42 U.S.C.S. § 7491(a)(1), and the no degradation

requirement, 42 U.S.C.S. § 7491(a)(4).

Outcome

The Environmental Protection Agency’s Haze

Rule was remanded back to the agency for

reconsideration.

Ann Lyons
LexisNexis® Headnotes

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

Governments > Public Lands > General Overview

Governments > Public Lands > National Parks

HN1 The Haze Rule, (July 1, 1999), requires

states to play the lead role in designing and

implementing regional haze programs to clear

the air in national parks and wilderness areas that

have been classified as ′′mandatory class I

Federal areas,′′ such as Yellowstone National

Park, Grand Canyon National Park, and

Shenandoah National Park. 40 C.F.R. §§ 81.401

through 81.437 (listing areas that have been

designated as Class I areas where visibility is an

important value). ′′Class I′′ areas include all

international parks, national wilderness areas

which exceed 5,000 acres in size, national

memorial parks which exceed 5,000 acres in

size, and national parks which exceed 6,000

acres in size and which were in existence on

August 7, 1977. 42 U.S.C.S. § 7472(a). The term

′′mandatory class I Federal areas′′ is defined as

′′Federal areas which may not be designated as

other than class I.′′ 42 U.S.C.S. § 7491(g)(5). At

the time was promulgated, there were 156 Class

I areas across the United States .

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

Environmental Law > Air Quality > State

Implementation Plans

Governments > Public Lands > General Overview

Governments > Public Lands > National Parks

HN2 In 1977, in response to a growing

awareness that visibility was rapidly

deteriorating in many places, such as wilderness

areas and national parks, Congress added §

169A to the Clean Air Act, 42 U.S.C.S. § 7491.

Section 169A established as a national goal the

prevention of any future, and the remedying of

any existing, impairment in visibility in

mandatory class I areas which impairment

results from man-made air pollution. 42 U.S.C.S.

§ 7491(a)(1). Congress directed Environmental

Protection Agency (EPA) to issue regulations

requiring states to submit State Implementation

Plans containing emission limits, schedules of

compliance, and other measures necessary to

make reasonable progress toward meeting the

national visibility goal. 42 U.S.C.S. §

7491(b)(2)). In addition, Congress required

states to address possible visibility impairment

caused by currently-operating large stationary

sources which had been in operation between

1962 and 1977. 42 U.S.C.S. § 7491(b)(2)(A).

Congress also gave EPA the responsibility of

promulgating regulations under § 169A to assure

reasonable progress toward meeting the national

goal. 42 U.S.C.S. § 7491(a)(4). The EPA issued

its first regulations in 1980. (Dec. 2, 1980).

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

HN3 The Environmental Protection Agency

(EPA’s) 1980 visibility regulations, (Dec. 2,

1980), which apply to states containing at least

one Class I area, 42 U.S.C.S. § 7472(a),

addressed visibility impairment reasonably

attributable to one source, or to a small number

of sources. EPA limited the reach of the 1980

regulations to impairment attributable to specific

sources and deferred any action on regional haze

attributable to multiple sources located across

broad geographic regions because there was

insufficient data regarding the relationship

between emitted pollutants, pollutant transport

and visibility impairment.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

Governments > Public Lands > General Overview

Governments > Public Lands > National Parks

HN4 In 1990, Congress amended the Clean Air

Act, adding § 169B in an attempt to prompt the

Environmental Protection Agency (EPA) to

further address visibility impairment in national

parks and wilderness areas. 42 U.S.C.S. § 7492).

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291 F.3d 1, *1; 2002 U.S. App. LEXIS 9931, **1

Ann Lyons
Section 169B requires, among other things, that

EPA undertake research to identify ′′sources′′ and

′′source regions′′ of visibility impairment in

Class I areas, consider designating transport

commissions to study the interstate movement of

pollutants, and establish a transport commission

for the Grand Canyon National Park. 42 U.S.C.S.

§ 7492.

Environmental Law > Air Quality > General Overview

HN5 The Environmental Protection Agency

(EPA) established the Grand Canyon Visibility

Transport Commission (GCVTC) in 1991 to

assess information about the adverse impacts on

visibility in and around sixteen Class I areas on

the Colorado Plateau region and to provide

policy recommendations to EPA to address such

impacts. (Nov. 12, 1991). The GCVTC issued its

report to EPA in 1996. Then in 1997 EPA issued

a notice of proposed rulemaking with regard to

regional haze, (July 31, 1997), noting that

advances in scientific and technical knowledge,

including analyses provided by the GCVTC, had

made it possible for EPA to target region-wide

visibility impairment.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > State

Implementation Plans

Governments > Public Lands > General Overview

Governments > Public Lands > National Parks

HN6 The final Haze Rule, (July 1, 1999),

reaches all states because, the Environmental

Protection Agency (EPA) concluded, all states

contain sources whose emissions are reasonably

anticipated to contribute to regional haze in a

Class I area. Fed. Reg. 35,721. Under the Haze

Rule, a state must develop and submit a State

Implementation Plan (SIP) that provides for

reasonable progress toward achieving ′′natural

visibility conditions′′ in the national parks and

wilderness areas in that state. 40 C.F.R. §

51.308(d)(1). SIPs addressing regional haze in

an ′′attainment′′ area must be submitted within

one year of the date the area is designated as

′′attainment,′′ and revised SIPs for

′′non-attainment′′ areas must be submitted within

three years after the designation. 40 C.F.R. §§

51.308(b)(1) and (2).

Environmental Law > Air Quality > General Overview

Environmental Law > ... > Emission Standards >

Stationary Emission Sources > New Stationary

Emission Sources

Environmental Law > Air Quality > State

Implementation Plans

HN7 The Haze Rule, (July 1, 1999), does not

specify what control measures a state must

implement in its initial State Implementation

Plan (SIP). (noting that the determination of

what specific control measures must be

implemented can only be made by a State once it

has conducted the necessary technical analyses

of emissions, air quality, and the other factors

that go into determining reasonable progress.

But the rule does require states to: (1) provide

for an improvement in visibility in the 20 percent

most impaired days; (2) ensure that there is no

degradation in visibility during the 20 percent

clearest days; and (3) determine the annual rate

of visibility improvement that would lead to

′′natural visibility′′ conditions in 60 years. 40

C.F.R. § 51.308(d)(1); 40 C.F.R. § 51.301; A

state may not adopt a rate of improvement that

would achieve natural visibility conditions in

more than 60 years unless it demonstrates that

the 60-year rate is unreasonable. 40 C.F.R. §

51.308(d)(1)(ii).

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > State

Implementation Plans

HN8 The Haze Rule, (July 1, 1999), provides

that each state must develop a long-term strategy

for achieving its visibility improvement goals.

This strategy must include the identification of

all major stationary sources subject to Best

Available Retrofit Technology (BART)

requirements. 40 C.F.R. § 51.308(e). In

identifying sources subject to BART, the Haze

Rule calls for states to use a group rather than a

source-by-source approach. (providing that a

state should find a source subject to BART if it

can be shown that the source emits pollutants

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291 F.3d 1, *1; 2002 U.S. App. LEXIS 9931, **1

Ann Lyons
within a geographic area from which pollutants

can be emitted and transported downwind to a

Class I area). In addition, when establishing

emission limits for BART sources, states must

consider the improvement in visibility that

would result if the technology were used at all

comparable BART sources (rather than the

improvement that a particular device at a

particular source would accomplish). 40 C.F.R. §

51.308(e)(1)(ii)(B).

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

HN9 Under § 169A of the Clean Air Act, each

state must review all Best Available Retrofit

Technology (BART)-eligible sources - meaning

all major stationary sources built between

August 1962 and August 1977 - to determine

whether the sources emit any air pollutant which

may reasonably be anticipated to cause or

contribute to any impairment of visibility in a

Class I area. 42 U.S.C.S. § 7491(b)(2)(A). After

deciding that a BART-eligible source emits a

pollutant which may reasonably be anticipated to

cause or contribute to Class I visibility

impairment, the state then must determine what

is the best available retrofit technology for

controlling emissions from that source. 42

U.S.C.S. § 7491(b)(2)(A). Under the Clean Air

Act, states must take the following five factors

into consideration when deciding what BART

controls to place on a source: the costs of

compliance, the energy and non-air quality

environmental impacts of compliance, any

existing pollution control technology in use at

the source, the remaining useful life of the

source, and the degree of improvement in

visibility which may reasonably be anticipated to

result from the use of such technology. 42

U.S.C.S. § 7491(g)(2).

Environmental Law > Air Quality > General Overview

HN10 The Haze Rule, (July 1, 1999), requires

states to find that a Best Available Retrofit

Technology (BART)-eligible source is

′′reasonably anticipated to cause or contribute′′

to regional haze if it can be shown that the

source emits pollutants within a geographic area

from which pollutants can be emitted and

transported downwind to a Class I area. In other

words, states must subject BART-eligible

sources to BART requirements even absent

empirical evidence of that source’s individual

contribution to visibility impairment in a Class I

area so long as the source is located within a

region that may contribute to visibility

impairment. The EPA explained in the preamble

to the Haze Rule that this sort of ′′collective

contribution′′ approach was consistent with that

taken in the programs for acid rain and ozone,

programs which also address regional air quality

problems caused by transported pollutants.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

Environmental Law > Air Quality > State

Implementation Plans

HN11 The Haze Rule, (July 1, 1999), provides

that once a state has decided that a particular

source is subject to Best Available Retrofit

Technology (BART) and is considering what

BART controls to place on that source, the state

must analyze the degree of visibility

improvement that would be achieved in each

mandatory Class I Federal area as a result of the

emission reductions achievable from all sources

subject to BART located within the region that

contributes to visibility impairment in the Class

I area. 40 C.F.R. § 51.308(e)(1)(ii)(B). This

means that of the five statutory factors to be

considered by states when determining BART

controls, 42 U.S.C.S. § 7491(g)(2), only four

factors (the costs of compliance, the

environmental impacts of compliance, any

existing pollution control technology in use at

the source, and the remaining useful life of the

source) are considered on a source-specific

basis. The Haze Rule requires states to consider

the fifth statutory factor (the degree in

improvement) on a group or ′′area wide′′ basis.

Environmental Law > Air Quality > General Overview

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291 F.3d 1, *1; 2002 U.S. App. LEXIS 9931, **1

Ann Lyons
Environmental Law > Air Quality > Prevention of

Significant Deterioration

Environmental Law > Air Quality > State

Implementation Plans

Transportation Law > Commercial Vehicles > Emission

Control

HN12 In the Haze Rule, (July 1, 1999), the

Environmental Protection Agency (EPA)

extracts one of the five statutory factors listed in

the Clean Air Act § 169A(g)(2), 42 U.S.C.S. §

7491(g)(2), and treats it differently than the other

four. (providing that only ′′the degree in

improvement in visibility that would be expected

at each Class I area as a result of imposing Best

Available Retrofit Technology (BART) is to be

considered on a group rather than a

source-specific basis). In effect, the EPA

bifurcates the states’ determination of the

appropriate BART emission limitations for

specific sources. States must first estimate

possible emission reductions on a

source-by-source basis based on the application

of the technology, the cost, time for compliance,

energy and non-air environmental impacts, and

the remaining useful life of the source. 40 C.F.R.

§ 51.308(e)(1)(ii)(A). Taking these factors into

account allows the State to arrive at an estimate

of the ’best system’ of retrofit control

technology for a particular source. States must

then calculate the degree in improvement in

visibility that would be expected at each Class I

area as a result of imposing BART on all sources

subject to BART. 40 C.F.R. § 51.308(e)(1)(ii)(B).

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

Governments > Legislation > Effect & Operation >

Retrospective Operation

HN13 The Haze Rule’s splitting of the statutory

factors pursuant to is consistent with neither the

text nor the structure of the Clean Air Act. 42

U.S.C.S. § 7491(g)(2). All five the Clean Air

Act’s § 169A(g)(2) factors, 42 U.S.C.S. §

7491(g)(2), inform the states’ inquiries into what

Best Available Retrofit Technology (BART)

controls are appropriate for particular sources.

Although no weights were assigned, the factors

were meant to be considered together by the

states. The language of § 169A(g)(2) can be read

in no other way. To treat one of the five statutory

factors in such a dramatically different fashion

distorts the judgment Congress directed the

states to make for each BART-eligible source.

Environmental Law > Air Quality > General Overview

Governments > Public Lands > General Overview

Governments > Public Lands > National Parks

HN14 The Environmental Protection Agency’s

(EPA’s) Haze Rule, (July 1, 1999), requires

states to consider the cost of compliance in terms

of the likely emission reductions which would be

achieved by the imposition of Best Available

Retrofit Technology (BART), no matter whether

this reduction would enhance visibility in

downwind national parks. (explaining that the

four factors, including cost, should be taken into

account for each source subject to BART in

order to compare tradeoffs between the control

efficiencies and costs associated with various

control alternatives). The preamble to the rule

provides very little guidance about how states

are to calculate the degree of improvement in

visibility under the regime EPA contemplates.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

Governments > Federal Government > Property

HN15 The Best Available Retrofit Technology

(BART) provisions of the Environmental

Protection Agency’s (EPA’s) Haze Rule, (July 1,

1999), are inconsistent with the Clean Air Act’s

provisions giving the states broad authority over

BART determinations. 42 U.S.C.S. §

7491(b)(2)(A); 42 U.S.C.S. § 7491(g)(2). The

Haze Rule ties the states’ hands and forces them

to require BART controls at sources without any

empirical evidence of the particular source’s

contribution to visibility impairment in a Class I

area. If the Haze Rule contained some kind of a

mechanism by which a state could exempt a

BART-eligible source on the basis of an

individualized contribution determination, then

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291 F.3d 1, *1; 2002 U.S. App. LEXIS 9931, **1

Ann Lyons
perhaps the plain meaning of the Clean Air Act

would not be violated. But the Haze Rule

contains no such mechanism. 42 U.S.C.S. §

7491(c)(1) does not provide the states with a

means by which they can exempt sources based

on individual contribution determinations.

Environmental Law > Air Quality > General Overview

HN16 The Haze Rule, (July 1, 1999), attempts

to deprive the states of some of their authority to

decide which sources impair visibility and what

Best Available Retrofit Technology controls

should apply to those sources in contravention of

the Clean Air Act.

Administrative Law > Agency Rulemaking > Rule

Application & Interpretation > Binding Effect

Administrative Law > Judicial Review > Standards of

Review > General Overview

Administrative Law > Judicial Review > Standards of

Review > Arbitrary & Capricious Standard of Review

Administrative Law > Separation of Powers >

Legislative Controls > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

HN17 In a case where there is an express

delegation of authority to the agency to elucidate

a specific provision of the statute by regulation,

any ensuing regulation is binding in the courts

unless procedurally defective, arbitrary or

capricious in substance, or manifestly contrary

to the statute.

Administrative Law > Judicial Review > Standards of

Review > General Overview

Administrative Law > Judicial Review > Standards of

Review > Arbitrary & Capricious Standard of Review

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

HN18 The natural visibility goal of the Clean

Air Act § 169A(a)(1) is quite clear: the

prevention of any future, and the remedying of

any existing, impairment of visibility, 42

U.S.C.S. § 7491(a)(1), and is neither manifestly

contrary to the statute nor arbitrary or capricious

in substance. Indeed, the goal is an eminently

reasonable elucidation of the statute.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

Environmental Law > Air Quality > State

Implementation Plans

HN19 The Environmental Protection Agency

(EPA’s) the natural visibility goal, 42 U.S.C.S. §

7491(a)(1), is not a mandate, it is a goal. As EPA

has explained, this goal serves as the foundation

for analytical tools to be used by the states to set

reasonable progress goals. The statute

specifically calls for regulations to assure

reasonable progress toward meeting the national

goal′′ of remedying any current and preventing

any future impairment of visibility. 42 U.S.C.S. §

7491(a)(4). The no degradation provision

requires implementation plans to provide for an

improvement in visibility for the most impaired

days over the period of the implementation plan

and ensure no degradation in visibility for the

least impaired days over the same period. 40

C.F.R. § 51.308(d)(1). This regulation plainly

and permissibly serves to assure the reasonable

progress sought by Congress.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

HN20 The prevention of significant

deterioration (PSD) program was adopted

pursuant to the 1977 amendments to the Clean

Air Act. The program generally controls any

additional deterioration of air quality by

establishing maximum allowable increases of

certain pollutants in specified areas. 42 U.S.C.S.

§ 7473(b). Therefore, the PSD program may

sometimes allow for limited air quality

deterioration.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

HN21 The prevention of significant

deterioration (PSD) program, 42 U.S.C.S. §

7473(b), does not require that visibility

deterioration occur. Nor does it create an

entitlement to degrade air quality in general or

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291 F.3d 1, *1; 2002 U.S. App. LEXIS 9931, **1

Ann Lyons
visibility in particular, because nothing in the

Clean Air Act provides for issuance of a PSD

permit as a matter of right.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

HN22 See 42 U.S.C.S. § 7491(g)(1).

Administrative Law > Agency Rulemaking > General

Overview

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

HN23 The Clean Air Act commands the

Environmental Protection Agency (EPA) to

promulgate regulations assuring reasonable

progress toward meeting the national ′′natural

visibility′′ goal. 42 U.S.C.S. § 7491(a)(4). The

national goal includes the prevention of any

future impairment of visibility. 42 U.S.C.S. §

7491(a)(1). The no degradation requirement

simply elucidates ′′reasonable progress.′′ The

requirement does not, however, in any way alter

the list of 42 U.S.C.S. § 7491(g)(1) criteria. In

fact, the cited statutory factors do not include

′′degradation.′′ Therefore, the States will be able

to comply with the no degradation requirement

while applying the § 7491(g)(1) criteria.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

Environmental Law > Air Quality > State

Implementation Plans

Environmental Law > Hazardous Wastes & Toxic

Substances > CERCLA & Superfund > Cleanup

Standards

HN24 There is no material inconsistency

between the statutory goal enunciated in the

Clean Air Act’s § 169A(a)(1), 42 U.S.C.S. §

7491(a)(1), and the regulatory goal of ′′natural

visibility.′′ The latter is a ′′logical outgrowth′′ of

the former.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

Environmental Law > Air Quality > State

Implementation Plans

HN25 The Clean Air Act requires states to

submit, by the 1-year deadline, State

Implementation Programs (SIPs) containing

such emission limits, schedules of compliance,

and other measures as may be necessary to carry

out the haze regulations. 42 U.S.C.S. §

7492(e)(2). A commitment SIP, which by

definition addresses neither the Haze Rule’s

′′core requirements for regional haze,′′ nor its

′′requirements for Best Available Retrofit

Technology (BART),′′ 40 C.F.R. § 51.308(c),

does not satisfy the statutory requirement.

Similarly, under the Clean Air Act § 110(k)(4),

the Environmental Protection Agency (EPA)

cannot satisfy its responsibility to determine

whether a state plan submission complies with

the CAA unless the submission ′′contains

something more than a mere promise to take

appropriate but unidentified measures in the

future,′′ and that a submission containing

nothing more than such a commitment cannot

extend the statutory deadline).

Counsel: Peter Glaser argued the cause for

Industry petitioners and intervenors on the

BART Issues in Case Nos. 99-1348, 99-1349,

99-1350, 99-1351, 99-1352, 99-1356, 99-1357,

99-1358 and 99-1359. With him on the joint

briefs were Paul M. Seby, Henry V. Nickel, F.

William Brownell, Michael L. Teague, Kevin L.

Fast, David M. Flannery, Kathy G. Beckett,

Scott D. Goldman, Harold P. Quinn, Jr., William

H. Lewis, Jr., and Michael A. McCord.

Kevin L. Fast argued the cause for Industry

petitioners in Case Nos. 01-1111, 01-1112 and

01-1113. With him on the joint briefs were Peter

Glaser, Paul M. Seby, Henry V. Nickel, F.

William Brownell, and Michael L. Teague.

David S. Baron argued the cause and filed the

briefs for petitioner Sierra Club.

Jennifer M. Granholm, Attorney General, State

of Michigan, Thomas L. Casey, Solicitor

General, and John Fordell Leone, Assistant

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291 F.3d 1, *1; 2002 U.S. App. LEXIS 9931, **1

Ann Lyons
Attorney General, were on the briefs for

intervenor State of Michigan.

Pamela S. Tonglao, Kenneth C. Amaditz, and H.

Michael Semler, Attorneys, U.S. Department of

Justice, argued the causes for respondents. With

them on the brief was M. Lea Anderson,

Attorney, U.S. Environmental Protection

Agency.

Erick Titrud argued [**2] the cause for

intervenors State of Maine, State of New

Hampshire, State of Vermont, and Tribal and

Environmental intervenors. With him on the

joint brief were Ann Brewster Weeks, Vickie L.

Patton, William G. Grantham, G. Steven Rowe,

Attorney General, State of Maine, Philip T.

McLaughlin, Attorney General, State of New

Hampshire, Maureen D. Smith, Senior Assistant

Attorney General, and William H. Sorrell,

Attorney General, State of Vermont.

Peter Glaser, Henry V. Nickel, F. William

Brownell, Michael L. Teague, Kevin L. Fast,

Paul M. Seby, Harold P. Quinn, Jennifer M.

Granholm, Attorney General, State of Michigan,

John Fordell Leone, Assistant Attorney General,

David M. Flannery, Kathy G. Beckett, William

H. Lewis, Jr., and Michael A. McCord were on

the joint brief for Industry and State intervenors,

in support of respondents.

Mark L. Shurtleff, Attorney General, State of

Utah, Fred Nelson, Assistant Attorney General,

and Susan M. McMichael were on the brief for

amici curiae State of Utah and State of New

Mexico Environment Department, in support of

respondent EPA.

Judges: Before: EDWARDS, RANDOLPH, and

GARLAND, Circuit Judges. Opinion concurring

in part and dissenting in part [**3] filed by

Circuit Judge GARLAND.

Opinion

On Petitions for Review of an Order of the

Environmental Protection Agency

[*2] PER CURIAM: In 1999, the

Environmental Protection Agency promulgated a

final rule to address regional haze. See Regional

Haze Regulations, 64 Fed. Reg. 35,714 (July 1,

1999). HN1 The Haze Rule calls for states to

play the lead role in designing and implementing

regional haze programs to clear the air in

national parks and wilderness areas that have

been classified as ′′mandatory class I Federal

areas,′′

1

such as Yellowstone [*3] National

Park, Grand Canyon National Park, and

Shenandoah National Park. See40 C.F.R. §§

81.401-.437 (listing areas that have been

designated as Class I areas where visibility is an

important value). Numerous petitioners now

challenge the Haze Rule. We vacate the rule in

part and sustain it in part.

[**4] I. Introduction

′′Regional haze,′′ as EPA defines it, is visibility

impairment caused by geographically dispersed

sources emitting fine particles and their

precursors into the air. See64 Fed. Reg. at

35,715. The emission and movement of sulfur

dioxide, oxides of nitrogen, and fine particulate

matter from sources, such as power plants,

contribute to haze. See id. Fine particulate matter

scatters and absorbs light. See id.

Haze has degraded visibility in most of the

country’s national parks and wilderness areas.

See id. The average visual range in many Class I

areas in the western United States is 100 to 150

kilometers - which is just one-half to two-thirds

the estimated visual range that would exist

without man-made air pollution. See id. In most

1

′′Class I′′ areas include all international parks, national wilderness areas which exceed 5,000 acres in size, national memorial

parks which exceed 5,000 acres in size, and national parks which exceed 6,000 acres in size and which were in existence on August

7, 1977. See42 U.S.C. § 7472(a). The term ′′mandatory class I Federal areas′′ is defined as ′′Federal areas which may not be

designated as other than class I.′′ Id.§ 7491(g)(5). At the time the Haze Rule was promulgated, there were 156 Class I areas across

the country. See64 Fed. Reg. at 35,714.

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of the eastern United States, the average visual

range is less than 30 kilometers - or about

one-fifth the visual range that would exist under

estimated natural conditions. See id.

Before 1977, the Clean Air Act (the ′′CAA′′ or

the ′′Act′′) ′′did not elaborate on the protection of

visibility as an air-quality-related value.′′

Chevron U.S.A., Inc. v. EPA, 658 F.2d 271, 272

(5th Cir. 1981). [**5] But HN2 in 1977, ′′in

response to a growing awareness that visibility

was rapidly deteriorating in many places, such as

wilderness areas and national parks,′′ id. at 272,

Congress added § 169A to the Act. See Clean Air

Act Amendments of 1977, Pub. L. No. 95-95, §

128, 91 Stat. 685, 742 (current version at 42

U.S.C. § 7491). Section 169A established as a

national goal the ′′prevention of any future, and

the remedying of any existing, impairment in

visibility in mandatory class I areas which

impairment results from man-made air

pollution.′′ See 91 Stat. at 742 (current version at

42 U.S.C. § 7491(a)(1)). Congress directed EPA

to issue regulations requiring states to submit

State Implementation Plans (′′SIPs′′) containing

emission limits, schedules of compliance, and

other measures necessary to make reasonable

progress toward meeting the national visibility

goal. See 91 Stat. at 743 (current version at 42

U.S.C. § 7491(b)(2)). In addition, Congress

required states to address possible visibility

impairment caused by currently-operating large

stationary sources which had been in operation

between [**6] 1962 and 1977. See 91 Stat. at

743 (current version at 42 U.S.C. §

7491(b)(2)(A)).

Congress also gave EPA the responsibility of

promulgating regulations under § 169A to

′′assure ... reasonable progress toward meeting

the national goal.′′ See 91 Stat. at 742-43 (current

version at 42 U.S.C. § 7491(a)(4)). EPA issued

its first regulations in 1980. See45 Fed. Reg.

80,084 (Dec. 2, 1980). HN3 The 1980 visibility

regulations, which apply to states containing at

least one Class I area, addressed visibility

impairment reasonably attributable to one

source, or to a small number of sources. See id.

at 80,085. EPA limited the reach of the 1980

regulations to impairment attributable to specific

sources and deferred any action on regional haze

attributable to multiple sources located across

broad geographic regions because there was

insufficient data regarding the relationship

between emitted pollutants, pollutant transport

and visibility impairment. See id. at 80,086.

[*4] HN4 In 1990, Congress amended the Clean

Air Act again, adding § 169B in an attempt to

prompt EPA to further address visibility [**7]

impairment in national parks and wilderness

areas. See Clean Air Act Amendments, Pub. L.

No. 101-549, § 816, 104 Stat. 2695 (1990)

(current version at 42 U.S.C. § 7492). Section

169B requires, among other things, that EPA

undertake research to identify ′′sources′′ and

′′source regions′′ of visibility impairment in

Class I areas, consider designating transport

commissions to study the interstate movement of

pollutants, and establish a transport commission

for the Grand Canyon National Park. See42

U.S.C. § 7492.

HN5 EPA established the Grand Canyon

Visibility Transport Commission (′′GCVTC′′) in

1991 to assess information about the adverse

impacts on visibility in and around sixteen Class

I areas on the Colorado Plateau region and to

provide policy recommendations to EPA to

address such impacts. See56 Fed. Reg. 57,522

(Nov. 12, 1991). The GCVTC issued its report to

EPA in 1996. Then in 1997 EPA issued a notice

of proposed rulemaking with regard to regional

haze, see62 Fed. Reg. 41,138 (July 31, 1997),

noting that advances in scientific and technical

knowledge, including analyses provided by the

GCVTC, [**8] had made it possible for EPA to

target region-wide visibility impairment. After

receiving more than 1,300 comments to the

proposed rule, EPA published the final Haze

Rule on July 1, 1999. See64 Fed. Reg. at 35,714.

HN6 The final Haze Rule reaches all states

because, EPA concluded, all states contain

sources whose emissions are ′′reasonably

anticipated to contribute to regional haze in a

Class I area.′′ Id. at 35,721. Under the Haze

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Rule, a state must develop and submit a SIP that

provides for reasonable progress toward

achieving ′′natural visibility conditions′′ in the

national parks and wilderness areas in that state.

See40 C.F.R. § 51.308(d)(1). SIPs addressing

regional haze in an ′′attainment′′ area must be

submitted within one year of the date the area is

designated as ′′attainment,′′ and revised SIPs for

′′non-attainment′′ areas must be submitted within

three years after the designation. See id.§

51.308(b)(1)-(2).

HN7 The Haze Rule, for the most part, does not

specify what control measures a state must

implement in its initial SIP. See64 Fed. Reg. at

35,721 (noting that the determination of what

specific [**9] control measures must be

implemented ′′can only be made by a State once

it has conducted the necessary technical analyses

of emissions, air quality, and the other factors

that go into determining reasonable progress′′).

But the rule does require states to: (1) provide

for an improvement in visibility in the 20 percent

most impaired days; (2) ensure that there is no

degradation in visibility during the 20 percent

clearest days; and (3) determine the annual rate

of visibility improvement that would lead to

′′natural visibility′′ conditions in 60 years. See40

C.F.R. § 51.308(d)(1); see also id.§ 51.301; 64

Fed. Reg. at 35,734. A state may not adopt a rate

of improvement that would achieve natural

visibility conditions in more than 60 years unless

it demonstrates that the 60-year rate is

unreasonable. See40 C.F.R. § 51.308(d)(1)(ii).

HN8 The Haze Rule also provides that each state

must develop a long-term strategy for achieving

its visibility improvement goals. This strategy

must include the identification of all major

stationary sources subject to Best Available

Retrofit Technology (′′BART′′) requirements.

[**10] See id.§ 51.308(e). In identifying sources

subject to BART, the Haze Rule calls for states

to use a group rather than a source-by-source

approach. See64 Fed. Reg. at 35,740 (providing

that a state should find a source subject to BART

′′if it can be shown that the source emits

pollutants [*5] within a geographic area from

which pollutants can be emitted and transported

downwind to a Class I area′′) (italics added). In

addition, when establishing emission limits for

BART sources, states must consider the

improvement in visibility that would result if the

technology were used at all comparable BART

sources (rather than the improvement that a

particular device at a particular source would

accomplish). See40 C.F.R. § 51.308(e)(1)(ii)(B).

The various petitioners and intervenors in this

consolidated case raise numerous challenges to

the Haze Rule. In Part II we address the claim

that EPA acted contrary to law in establishing a

group rather than a source-by-source approach to

BART determinations. In Part III we address the

claims of industry petitioners in Case Nos.

01-1111, 01-1112, and 01-1113 that EPA acted

without legal authority [**11] and in an

arbitrary and capricious manner in promulgating

the ′′natural visibility′′ goal and the ′′no

degradation′′ requirement in the regional haze

regulations. Finally, in Part IV, we address the

challenges raised by the Sierra Club - namely

that EPA failed to set reasonable criteria for

measuring or assuring reasonable progress, and

that EPA acted contrary to law in extending the

statutory deadline for submission of state haze

control plans.

II. BART Issues

HN9 Under § 169A of the Act, each state must

review all BART-eligible sources - meaning all

major stationary sources built between August

1962 and August 1977 - to determine whether

the sources emit ′′any air pollutant which may

reasonably be anticipated to cause or contribute

to any impairment of visibility′′ in a Class I area.

2

42 U.S.C. § 7491(b)(2)(A). After deciding that a

BART-eligible source emits a pollutant which

may reasonably be anticipated to cause or

contribute to Class I visibility impairment, the

state then must determine what is the best

2 A ′′major stationary source′′ is a source that has the potential to emit 250 tons or more of any pollutant. See42 U.S.C. §

7491(g)(7).

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available retrofit technology for controlling

emissions from that source. See id. Under the

Act, states must take the following five factors

into consideration [**12] when deciding what

BART controls to place on a source:

the costs of compliance, the energy

and non-air quality environmental

impacts of compliance, any existing

pollution control technology in use at

the source, the remaining useful life of

the source, and the degree of

improvement in visibility which may

reasonably be anticipated to result

from the use of such technology.

Id.§ 7491(g)(2).

The Haze Rule interprets and implements these

statutory BART provisions in two main ways.

First, HN10 the Haze Rule requires states to

′′find that a BART-eligible source is ’reasonably

anticipated to cause or contribute’ to regional

haze if it can be shown that the source emits

pollutants within a geographic area from which

pollutants can be emitted and transported

downwind to a Class I area.′′ 64 Fed. Reg. at

35,740 (italics added). [**13] In other words,

states must subject BART-eligible sources to

BART requirements even absent empirical

evidence of that source’s individual contribution

to visibility impairment in a Class I area so long

as the source is located within a region that may

contribute to visibility impairment. See id. at

35,740; see also Br. for EPA at 26-27. EPA

explained in the preamble to the Haze Rule that

this sort of ′′collective contribution′′ approach

was ′′consistent with that taken in the programs

for acid rain and ozone, [*6] programs which

also address regional air quality problems caused

by transported pollutants.′′ 64 Fed. Reg. at

35,740; see also 63 Fed. Reg. at 57,376.

Second, HN11 the Haze Rule provides that once

a state has decided that a particular source is

subject to BART and is considering what BART

controls to place on that source, the state must

analyze ′′the degree of visibility improvement

that would be achieved in each mandatory Class

I Federal area as a result of the emission

reductions achievable from all sources subject to

BART located within the region that contributes

to visibility impairment in the Class I area.′′ 40

C.F.R. § 51.308(e)(1)(ii)(B) [**14] (italics

added). This means that of the five statutory

factors to be considered by states when

determining BART controls, see42 U.S.C. §

7491(g)(2), only four factors (the costs of

compliance, the environmental impacts of

compliance, any existing pollution control

technology in use at the source, and the

remaining useful life of the source) are

considered on a source-specific basis. The Haze

Rule requires states to consider the fifth statutory

factor (the degree in improvement) on a group or

′′area wide′′ basis.

Industry petitioners attack EPA’s decision to use

a group rather than a source-by-source BART

approach, arguing that the language, statutory

structure, and legislative history of § 169A make

it clear that the Haze Rule runs afoul of the Act.

See Br. for Industry Pet’rs and Intervenor in Case

Nos. 99-1348, et al. at 13. For the reasons that

follow, we grant the petition for review, vacate

the BART rules, and remand to EPA.

HN12 In the Haze Rule, EPA extracts one of the

five statutory factors listed in § 169A(g)(2) and

treats it differently than the other four. See64

Fed. Reg. at 35,741 (providing that only ′′the

degree in improvement [**15] in visibility that

would be expected at each Class I area as a result

of imposing BART′′ is to be considered on a

group rather than a source-specific basis). In

effect, EPA bifurcates the states’ determination

of the appropriate BART emission limitations

for specific sources. States must first estimate

possible emission reductions on a

source-by-source basis based on the application

of the technology, the cost, time for compliance,

energy and non-air environmental impacts, and

the remaining useful life of the source. See id.;

see also40 C.F.R. § 51.308(e)(1)(ii)(A). ′′Taking

these factors into account allows the State to

arrive at an estimate of the ’best system’ of

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Ann Lyons
retrofit control technology for a particular

source.′′ 64 Fed. Reg. at 35,741. States must then

calculate the degree in improvement in visibility

that would be expected at each Class I area as a

result of imposing BART on all sources subject

to BART. See id.; see also40 C.F.R. §

51.308(e)(1)(ii)(B).

EPA argues that its bifurcated approach to

determining appropriate BART controls is

permissible because § 169A(g)(2) is unclear

about [**16] how a state must analyze

anticipated visibility improvement. See Chevron

U.S.A., Inc. v. Natural Res. Def. Council, 467

U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct.

2778 (1984). We cannot agree. HN13 The Haze

Rule’s splitting of the statutory factors is

consistent with neither the text nor the structure

of the statute. See42 U.S.C. § 7491(g)(2). All

five § 169A(g)(2) factors inform the states’

inquiries into what BART controls are

appropriate for particular sources. Although no

weights were assigned, the factors were meant to

be considered together by the states. The

language of § 169A(g)(2) can be read in no other

way. To treat one of the five statutory factors in

such a dramatically different fashion distorts the

judgment Congress directed the states to make

for each BART-eligible source. This is [*7]

most apparent with respect to the states’ duty to

take into account ′′the costs of compliance′′ in

deciding not only whether to order an individual

source to install any new pollution control

equipment, but also what type of equipment - or

as the statute puts it, what type of ′′retrofit

technology.′′ How is a state to determine what is

too costly [**17] (and what is not) for a

particular source? The statute answers that the

state must consider the degree of improvement

in visibility in national parks and wilderness

areas that would result from the source’s

installing and operating the retrofit technology.

EPA has a far different answer: in assessing the

cost of compliance imposed on a source, the

state may not consider the degree to which new

equipment at a particular source would help cure

the haze in some distant national park. Under

EPA’s take on the statute, it is therefore entirely

possible that a source may be forced to spend

millions of dollars for new technology that will

have no appreciable effect on the haze in any

Class I area. 3 A similar problem arises when a

state considers, as it must, the ′′existing pollution

control technology in use at the source.′′ How is

a state to decide whether the source already has

installed sufficient devices without determining

how much, if at all, the source is contributing to

visual impairment in downwind Class I areas?

As the industry petitioners correctly note, there

is no point during the Haze Rule’s BART

determination ′′in which it could be

demonstrated that the degree of improvement

[**18] in visibility obtained from installing a

particular set of emissions controls at a source

with ’exceedingly low’ or even merely

theoretical visibility impacts is not justified by

the cost of BART in light of those low or

3 HN14 EPA’s rule requires states to consider the cost of compliance in terms of the likely emission reductions which would

be achieved by the imposition of BART, no matter whether this reduction would enhance visibility in downwind national parks. See64

Fed. Reg. at 35,741 (explaining that the four factors, including cost, ′′should be taken into account for each source subject to

BART in order to compare tradeoffs between the control efficiencies and costs associated with various control alternatives′′). The

preamble to the rule provides very little guidance about how states are to calculate the degree of improvement in visibility

under the regime EPA contemplates. The preamble tells the states only this:

To calculate the degree of improvement in visibility that would be expected at each Class I area as a result of

imposing BART on all sources subject to BART, the State should estimate the possible emissions reductions resulting

from the application of BART at all subject sources located within the region that contributes to visibility impairment

in the Class I area. The State should work on its own or in conjunction with other States, such as a regional

planning body, to determine the geographic scope of the region that contributes to each Class I area. The States

should consult with one another to determine the emission reductions achievable from sources subject to BART in

other states.

Id.

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theoretical impacts.′′ Br. for Industry Pet’rs and

Intervenor in Case Nos. 99-1348, et al. at 17-18.

[**19] The Haze Rule’s treatment of §

169A(g)(2)’s degree-of-improvement

calculation is, the industry petitioners argue, not

the only respect in which the rule is inconsistent

with the Act. As they see it, the Haze Rule also

unlawfully constrains the states’ statutory

authority because under the Act it is the states -

not EPA - who must determine which

BART-eligible sources should be subject to

BART. See42 U.S.C. § 7491(b)(2)(A) (providing

that each BART-eligible source that, ′′as

determined by the State ... emits any air

pollutant which may reasonably be anticipated to

cause or contribute to any impairment of

visibility,′′ shall install and operate the best

available retrofit technology (italics [*8]

added)); see also id.§ 7491(g)(2) (listing the

factors that ′′the State ... shall take into

consideration′′ in determining BART controls

(italics added)).

We agree with these petitioners that HN15 the

Haze Rule’s BART provisions are inconsistent

with the Act’s provisions giving the states broad

authority over BART determinations. See id.§

7491(b)(2)(A); see also id.§ 7491(g)(2). The

Haze Rule ties the states’ hands and forces them

to require BART controls [**20] at sources

without any empirical evidence of the particular

source’s contribution to visibility impairment in

a Class I area. See64 Fed. Reg. at 35,740; see

also Br. for EPA at 26-27. If the Haze Rule

contained some kind of a mechanism by which a

state could exempt a BART-eligible source on

the basis of an individualized contribution

determination, then perhaps the plain meaning of

the Act would not be violated. But the Haze Rule

contains no such mechanism. Section

169A(c)(1) - on which EPA relies - is a

procedure by which the Administrator, with the

approval of federal land managers, can exempt a

source from BART requirements. See42 U.S.C. §

7491(c)(1) (′′The Administrator may, by rule,

after notice and opportunity for public hearing,

exempt any major stationary source from [the

BART requirements], upon his determination

that such source does not or will not, by itself or

in combination with other sources, emit any air

pollutant which may reasonably be anticipated to

cause or contribute to a significant impairment

of visibility in any mandatory class I Federal

area.′′); see also id.§ 7491(c)(3). It does not

provide the [**21] states with a means by which

they can exempt sources based on individual

contribution determinations.

Our conclusion that the Haze Rule’s BART

provisions impermissibly constrain state

authority is reinforced by the Conference Report

on the 1977 amendments to the Act. See Demby

v. Schweiker, 217 U.S. App. D.C. 1, 671 F.2d

507, 510 (D.C. Cir. 1981). The Report explains:

The agreement clarifies that the State,

rather than the Administrator,

identifies the source that impairs

visibility in the Federal class I areas

identified....

In establishing emission limitations for

any source which impairs visibility,

the State shall determine what

constitutes ′′best available retrofit

technology′′ ... in establishing

emission limitations on a

source-by-source basis to be included

in the State implementation plan so as

to carry out the requirements of this

section.

H.R. CONF. REP. NO. 95-564 (1977),

reprinted in 3 SENATE COMM. ON

ENV’T AND PUB. WORKS, A

LEGISLATIVE HISTORY OF THE

CLEAN AIR ACT AMENDMENTS OF

1977, at 535 (1978) [hereinafter ′′1977

Legislative History′′]. The ′′agreement′′ to

which the Conference Report refers was an

agreement to reject the House [**22] bill’s

provisions giving EPA the power to

determine whether a source contributes to

visibility impairment and, if so, what BART

controls should be applied to that source.

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See id. at 533-35. Pursuant to the

agreement, language was inserted to make

it clear that the states - not EPA - would

make these BART determinations. See id.

at 533-35; see also H.R. Res. 4151, 95th

Cong. (1977), reprinted in 1977 Legislative

History at 1985, 2325-30. The Conference

Report thus confirms that Congress

intended the states to decide which sources

impair visibility and what BART controls

should apply to those sources. HN16 The

Haze Rule attempts to deprive the states of

some of this statutory authority, in

contravention of the Act.

In sum, we conclude that the Haze Rule’s BART

provisions are contrary to the text, structure and

history of § 169A [*9] of the Act because the

rule isolates § 169A(g)(2)’s benefit calculation

and constrains authority Congress conferred on

the states. Although petitioners also contended

that no concept of a group or area-wide BART

determination could ever be consistent with the

Act, 4 we need not decide that broad issue today.

We hold only that the Haze Rule’s treatment

[**23] of § 169A(g)(2)’s benefit calculation

and its infringement on states’ authority under

the Act render the BART provisions of the rule

impermissible.

III. The ′′Natural Visibility′′ Goal and the ′′No

Degradation′′ Requirement

The industry petitioners in Case Nos. 01-1111,

01-1112, and 01-1113 (′′Reconsideration

Petitioners′′) cite four grounds in support of their

[**24] claim that the ′′natural visibility′′ goal

and the ′′no degradation′′ requirement in the

Haze Rule should be vacated as ′′arbitrary and

capricious′′ and otherwise not in accordance with

law: (1) EPA exceeded its authority under §

169A(a)(1) and adopted regulations that conflict

with the PSD program in establishing ′′natural

visibility′′ as the goal of the regional haze

program; (2) the regulations impermissibly

constrain state discretion in requiring that the

states develop their visibility programs using the

′′no degradation′′ requirement as a bench mark;

(3) EPA has no authority to impose upon the

states the goal of achieving ′′natural visibility′′

conditions, and thereby restrict the opportunity

of some states to participate in the planning

process aimed at addressing regional haze; and

(4) EPA promulgated the Haze Rule without

providing adequate notice and an opportunity for

comment. We find no merit in these claims and,

accordingly, deny industry petitioners’ challenge

to the ′′natural visibility′′ goal and the ′′no

degradation′′ requirement.

Before we turn to the merits of petitioners’

claims, we must first address EPA’s contentions

that petitioners’ challenge to the natural

visibility goal [**25] and their claims of

inadequate notice are barred because they were

not properly raised before the agency. We find

no merit in EPA’s contentions. Petitioners

argued that the Haze Rule conflicted with the

PSD program in both their comments to the

agency before the regulations were issued and in

their petition for reconsideration. See

Supplemental Comments of the Utility Air

Regulatory Group at 22, reprinted in Joint

Appendix (′′J.A.′′) 156; Petition for

Reconsideration of the Regional Haze

Regulations Submitted by Utility Air Regulatory

Group & National Mining Ass’n at 10-11,

reprinted in J.A. 97-98. Petitioners also sought

notice and comment in connection with these

portions of the Haze Rule in their petition for

reconsideration. See Petition for Reconsideration

of the Regional Haze Rule Submitted by the

Center for Energy and Economic Development

at 11-14, reprinted in J.A. 116-19.

On the merits, we reject petitioners’ claim that

EPA had no authority under § 169A to adopt the

4

The industry petitioners argued that source-by-source BART determinations are required by the statute and that no concept of

area-wide BART determinations is permissible. See Brief for Industry Pet’rs and Intervenor in Case Nos. 99-1348, et al. at 14

(arguing that § 169A makes it clear that BART determinations ′′must be made on a source-by-source basis′′). Cf. Train v. Natural

Res. Def. Council, 421 U.S. 60, 64, 43 L. Ed. 2d 731, 95 S. Ct. 1470 (1975) (discussing the history of the Clean Air Act and

how the premise of the Act was to give states and local governments responsibility over preventing air pollution ′′at its source′′).

Page 14 of 27

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Ann Lyons
natural visibility goal. EPA acted under express

congressional authorization in promulgating the

[*10] challenged regulations. See42 U.S.C. §

7491(a)(4). HN17 In a case such [**26] as this,

where

′′there is an express delegation of

authority to the agency to elucidate a

specific provision of the statute by

regulation,′′ Chevron, 467 U.S. at

843-844, ... any ensuing regulation is

binding in the courts unless

procedurally defective, arbitrary or

capricious in substance, or manifestly

contrary to the statute.

United States v. Mead Corp., 533 U.S. 218,

227, 150 L. Ed. 2d 292, 121 S. Ct. 2164

(2001) (footnote omitted). HN18 The

natural visibility goal is neither ′′manifestly

contrary to the statute′′ nor ′′arbitrary or

capricious in substance.′′ Indeed, the goal is

an eminently reasonable elucidation of the

statute.

The statutory goal enunciated in § 169A(a)(1) is

quite clear: ′′the prevention of any future, and the

remedying of any existing, impairment of

visibility.′′ 42 U.S.C. § 7491(a)(1). Petitioners

argue that a ′′natural visibility′′ goal cannot be

gleaned from this statutory standard. This claim

is specious. Agency regulations that aim to

remedy any existing impairment of visibility and

prevent any future impairment - as the statute

commands - will of necessity aim to achieve a

state of natural [**27] visibility. There is no

material inconsistency between the statutory and

regulatory goals, for the latter merely elucidates

the former.

The petitioners also claim that Congress did not

intend for the statutory goal of § 169A(a) to

displace the objectives of the PSD program.

Therefore, according to petitioners, the natural

visibility goal and the no degradation

requirement cannot be squared with the PSD

program, because that program recognizes that

some impairment of visibility would be

acceptable in Mandatory Federal Class I areas.

We reject this argument, because EPA has

reasonably construed the PSD program and the

disputed regional haze rules as complementary

regulatory regimes.

There are two things worth noting at the outset.

First, HN19 the natural visibility goal is not a

mandate, it is a goal. As EPA has explained, this

goal serves as the foundation for analytical tools

to be used by the states to set reasonable

progress goals. 64 Fed. Reg. at 35,732-33

Petitioners’ claim that the agency is without

authority to mandate attainment of the national

goal is therefore meritless.

Second, the statute specifically calls for

regulations to assure ′′reasonable progress

[**28] toward meeting the national goal′′ of

remedying any current and preventing any future

impairment of visibility. 42 U.S.C. § 7491(a)(4).

The no degradation provision requires

implementation plans to ′′provide for an

improvement in visibility for the most impaired

days over the period of the implementation plan

and ensure no degradation in visibility for the

least impaired days over the same period.′′ 40

C.F.R. § 51.308(d)(1). This regulation plainly

and permissibly serves to assure the reasonable

progress sought by Congress.

HN20 The PSD program was adopted pursuant

to the 1977 amendments to the Act. See

generally Ala. Power Co. v. Costle, 204 U.S.

App. D.C. 51, 636 F.2d 323, 349-51 (D.C. Cir.

1979). The program generally controls any

additional deterioration of air quality by

establishing maximum allowable increases of

certain pollutants in specified areas. See42

U.S.C. § 7473(b). It is therefore true, as industry

petitioners point out, that the PSD program may

sometimes allow for limited air quality

deterioration. EPA, however, has taken pains to

explain that the PSD program and the Haze Rule

[**29] are not at odds:

Section 169A of the CAA requires the

EPA to promulgate regulations to

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Ann Lyons
ensure [*11] that the States revise

their implementation plans to contain

those measures necessary to make

reasonable progress toward the

national visibility goal. In addition to

the remedying of any existing

visibility impairment, that goal

requires the prevention of any future

visibility impairment in mandatory

Class I Federal areas. As part of the

overall strategy to effectuate that goal,

the final rule requires States to identify

all anthropogenic sources of visibility

impairment. The States accordingly

should take into account the

cumulative effect of all existing,

man-made sources of air pollution in

developing their regional haze

implementation plan as well as

potential new sources.

With respect to the comment that EPA

lacks authority to impose a

welfare-based standard which renders

other requirements of the CAA such as

PSD and NSPS largely superfluous,

EPA notes that when Congress

amended the CAA in 1977 to provide

for the protection of visibility, it was

aware of both the PSD and NSPS

provisions. Nevertheless, Congress

required EPA to issue regulations to

address visibility. In contrast, [**30]

the final regional haze rule requires

States to take into account the

visibility impact of emissions from

both existing and new sources, and

stationary and nonstationary sources.

This is only one of many instances

under the CAA in which Congress has

provided for overlapping regulation.

Indeed, the PSD and NSPS programs

both focus on the control of emissions

from new stationary sources. EPA

believes that the regional haze rule and

these other provisions are

complementary means of improving

air quality.

Commenters raised a number of

specific questions regarding the

interaction of the PSD program and

the regional haze rule. One commenter

asked the EPA to address the

relationship of allowable Class I

impacts to the proposed visibility

impact limits. All PSD areas are

categorized as Class I, II, or III. The

classification of an area determines the

corresponding maximum allowable

increases, or increment, of air quality

deterioration. Only a relatively small

increment of air quality deterioration

is permissible in Class I areas. These

increments are measured over annual,

24-hour, and/or 3-hour averaging

times. Nowhere, however, does the

CAA provide that air quality must be

allowed to deteriorate [**31] to the

full extent allowed by the Class I

increments standing alone. To read the

statute in that manner would

contravene both the general goals of

the CAA to ′′protect and enhance′′ air

quality (see section 101(b)(1)) but the

specific long-term goal of section

169A is to eventually remedy existing

visibility impairment in Class I areas.

Accordingly, we believe that allowing

localized air quality increases in the

short-term due to the emissions from

major new sources subject to PSD is

not inconsistent with the regional haze

program. The regional haze program is

focused on long-term emission

decreases from the entire regional

emission inventory, comprised of

major and minor stationary sources,

area sources and mobile sources. We

expect that long-term emission

strategies for regional haze will derive

substantial emission decreases from

the inventory as a whole, and that

these overall strategies will be able to

accommodate some localized

increases within the framework of a

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Ann Lyons
regional decrease. We also note that

the overall inventory would decrease

in cases where new sources are built

that replace older, more polluting

sources. Accordingly, we do not see

any inherent conflict between the two

[**32] programs.

[*12] While the PSD program

generally allows for a small increment

of air quality deterioration in Class I

areas, section 165 of the CAA also

provides for the additional protection

of air quality-related values,

′′including visibility,′′ in Class I

Federal areas beyond that provided by

the increments. That is, where the

FLM [Federal Land Manager]

demonstrates that emissions from a

new or modified source will have an

adverse impact on air quality-related

values (AQRVs), notwithstanding the

fact that the emissions from the source

do not cause or contribute to

concentrations in excess of the

increment for a Class I area, ′′a permit

shall not be issued.′′ Section 165(d).

Thus, under PSD there can be no

increase in emissions from the

construction or modification of a

major stationary source where that

increase would result in adverse

impacts on AQRVs in a Class I Federal

area.

Responses to Significant Comments on the

Notice of Proposed Rulemaking § I.F (Apr.

1999), reprinted in J.A. 1062-63.

The Government also reminds us that HN21 the

PSD program ′′does not require that [visibility]

deterioration occur. Nor does it create an

entitlement to degrade air quality in general

[**33] or visibility in particular, because

nothing in the CAA provides for issuance of a

PSD permit as a matter of right.′′ Br. for EPA at

59. We agree.

Petitioners cite Alabama Power in an attempt to

support their claim that the existence of the PSD

program effectively bars ′′natural visibility′′ as a

viable regulatory goal. Alabama Power supports

no such claim. Indeed, the court noted that

′′section 169A is available to protect visibility in

Class I areas where visibility is an important

characteristic, and the [agency] may choose to

invoke [its] rulemaking authority ... to address

this problem.′′ 636 F.2d at 368. In

acknowledging the availability of § 169A, the

court implicitly embraced EPA’s view that the

visibility program is a supplement to the PSD

program.

Industry petitioners additionally claim that the

no degradation requirement conflicts with §

169A(g)(1)’s list of factors that states must

consider when determining reasonable progress.

HN22 Section 169A(g)(1) states:

in determining reasonable progress

there shall be taken into consideration

the costs of compliance, the time

necessary for compliance, and the

energy and non-air quality

environmental impacts [**34] of

compliance, and the remaining useful

life of any existing source subject to

such requirements.

42 U.S.C. § 7491(g)(1). Petitioners argue

that, because ′′reasonable progress′′ could at

times involve degradation, the ′′no

degradation′′ requirement restricts the

States’ authority to apply the statutory

criteria. We disagree.

As noted above, HN23 the statute commands

EPA to promulgate regulations assuring

′′reasonable progress toward meeting the

national goal.′′ Id. § 7491(a)(4). The national

goal includes ′′the prevention of any future ...

impairment of visibility.′′ Id. § 7491(a)(1). The

no degradation requirement simply elucidates

′′reasonable progress.′′ The requirement does

not, however, in any way alter the list of §

169A(g)(1) criteria. In fact, the cited statutory

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Ann Lyons
factors do not include ′′degradation.′′ Therefore,

the States will be able to comply with the no

degradation requirement while applying the §

169A(g)(1) criteria.

Next, although the petitioners assert that the

Haze Rule somehow restricts the opportunity of

some states to participate in the planning process

aimed at addressing regional haze, we can find

no real evidence in support of this [**35] claim.

This contention certainly offers no ground upon

which to vacate the disputed regulations.

[*13] Finally, petitioners claim that they did not

have fair notice and an adequate opportunity to

comment on the regulatory goal of natural

visibility, because ′′EPA provided no notice in its

1997 proposal that it intended to require States to

achieve natural visibility conditions.′′ Br. for

Reconsideration Pet’rs at 25. Rather, according

to petitioners, EPA merely proposed regulations

patterned on the statutory goal enunciated in §

169A(a)(1), i.e., ′′’preventing any future, and

remedying any existing, impairment of

visibility.′′’ Br. for Reconsideration Pet’rs at 25

(quoting old 40 C.F.R. § 51.300(b)(1)). This

argument is meritless. As noted above, HN24

there is no material inconsistency between the

statutory goal enunciated in § 169A(a)(1) and

the regulatory goal of ′′natural visibility.′′ The

latter is a ′′logical outgrowth′′ of the former.

Fertilizer Inst. v. EPA, 290 U.S. App. D.C. 184,

935 F.2d 1303, 1311 (D.C. Cir. 1991). Therefore,

EPA did not violate any notice and comment

requirements in adopting the natural visibility

goal as a part of the Haze [**36] Rule.

If there is any tension between the Haze Rule

and the PSD program, it is EPA’s responsibility

to harmonize the regulatory requirements. It has

done so in a perfectly reasonable fashion. EPA’s

regulatory harmonization is both consistent with

the statute and reasonable. Accordingly, we deny

the petitions for review of the natural visibility

goal and the no degradation requirement.

IV. The ′′Reasonable Progress′′ Criteria and the

Extension of the Statutory Deadline

While the Industry Petitioners attack the

Regional Haze Rule as overstepping EPA’s

statutory authority, Sierra Club argues that EPA

has not gone far enough to meet its statutory

responsibilities.

In its first cluster of attacks on the Haze Rule,

Sierra Club contends that the Rule does not

satisfy EPA’s responsibility under CAA §

169A(a)(4) to ′′promulgate regulations to assure

... reasonable progress toward meeting the

national [visibility] goal,′′ 42 U.S.C. §

7491(a)(4), its responsibility under CAA §

169B(e)(1) to establish ′′criteria for measuring

’reasonable progress’ toward the national goal,′′

42 U.S.C. § 7492(e)(1), and its obligation under

the Administrative Procedure [**37] Act not to

act in an ′′arbitrary or capricious′′ fashion, 5

U.S.C. § 706(2)(A). Sierra Club argues that the

Haze Rule’s requirements for improvement in

visibility during the 20 percent most impaired

days and for no degradation during the 20

percent least impaired days, 40 C.F.R. §

51.308(d)(1); see also64 Fed. Reg. at 35,734, do

not qualify as ′′reasonable progress′′ criteria and

are arbitrary and capricious. Similarly, it argues

that the Rule’s requirement that a state not adopt

a rate of improvement that would take more than

60 years to achieve natural visibility unless the

state demonstrates that the 60-year rate is

unreasonable, 40 C.F.R. § 51.308(d)(1)(i)(b),

(ii), does not meet the statutory mandates and

lacks ′′requisite specificity′′ because a state

would be ′′free to reject the 60 year time frame

merely by claiming that such a schedule is not

’reasonable.′′’ Reply Br. for Sierra Club at 5, 8.

We might well consider the latter attack unripe

even without reference to our decision in Part II

that the group-BART provisions of the Haze

Rule are invalid. If in the future a state does

conclude [**38] that it needs more than 60 years

to achieve natural visibility, and if EPA decides

to accept that conclusion, it will at that time be

open to Sierra Club to challenge EPA’s decision

as arbitrary and capricious. In the meantime, this

court will certainly ′′’benefit from postponing

review until the policy in [*14] question has

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Ann Lyons
sufficiently crystallized.′′’ Grand Canyon Air

Tour Coalition v. FAA, 332 U.S. App. D.C. 133,

154 F.3d 455, 472 (D.C. Cir. 1998) (quoting

Florida Power & Light Co. v. EPA, 330 U.S.

App. D.C. 344, 145 F.3d 1414, 1421 (D.C. Cir.

1998)).

But in any event, our decision to invalidate the

group-BART provisions renders this entire

cluster of challenges unripe for disposition.

Because those provisions were intimately related

to EPA’s assessment of what was necessary to

achieve the goal of natural visibility, we cannot

be sure whether on remand EPA will retain its

current criteria for evaluating reasonable

progress or adopt others. If the invalidation of

the group-BART provisions causes EPA to doubt

the efficacy of the remaining elements of the

Haze Rule, perhaps EPA will see wisdom in

some of Sierra Club’s complaints and, for

example, increase [**39] the percentage of days

during which there must be improvement in

visibility, or increase the specificity of its criteria

for reasonable progress. In light of the

uncertainty that our decision creates with respect

to the form of the rule that may emerge upon

remand, the only prudent course is for us to

decline to address Sierra Club’s challenges at

this juncture.

Sierra Club’s second major attack on the Haze

Rule challenges EPA’s determination to give

states 3 years to file haze SIPs for areas

designated ′′attainment′′ or ′′unclassifiable.′′ We

are troubled by EPA’s action, which appears to

contravene express statutory language, but in

light of our decision regarding group-BART we

leave this to EPA to reconsider on remand as

well.

The Transportation Equity Act for the 21st

Century, Pub. L. No. 105-178, 112 Stat. 107, 463

(1998) (′′TEA-21′′), provides that, for areas

designated as ′′nonattainment′′ for the new

national ambient air quality standard (NAAQS)

for fine particulate matter, EPA shall require

states to submit haze SIPs 3 years after the area

has been so designated. See TEA-21 §

6102(c)(2) (incorporating the 3-year deadline of

42 U.S.C. § 7492(e)(2)). However, [**40]

TEA-21 also expressly mandates that for any

area designated as ′′attainment′′ or

′′unclassifiable′′ for that standard, EPA ′′shall

require the [SIP] to be submitted 1 year after the

area has been so designated.′′ Id. Nonetheless,

the Haze Rule permits a state to ′′choose to defer

addressing the [Rule’s] core requirements for

regional haze ... and the requirements for

BART′′ by submitting a so-called ′′commitment

SIP,′′ containing a ′′demonstration of ongoing

participation in a regional planning process to

address regional haze, and an agreement ... to

continue participating,′′ a ′′description of the

regional planning process,′′ and a ′′list of all

BART-eligible sources within the state.′′ 40

C.F.R. § 51.308(c), (c)(1). If a state submits such

a commitment SIP, the deadline for submitting a

haze SIP is extended from 1 year to 3. Id. §

51.308(c)(2); see Br. for EPA at 87; Br. for Sierra

Club at 25.

On its face, this provision of the Haze Rule

appears to extend the express statutory deadline

for ′′attainment′′ and ′′unclassifiable′′ areas, an

action which is beyond the agency’s authority.

See Sierra Club v. EPA, 327 U.S. App. D.C. 54,

129 F.3d 137, 140 (D.C. Cir. 1997) [**41]

(holding that EPA cannot establish a ′′grace

period′′ for compliance when not authorized to

do so by the CAA); Sierra Club v. EPA, 231 U.S.

App. D.C. 192, 719 F.2d 436, 469 (D.C. Cir.

1983) (reversing an EPA implementation plan

that would have effectively extended the

statutory deadline for state submissions under

CAA amendments). HN25 The statute requires

states to submit, by the 1-year deadline, SIPs

′′containing such emission limits, schedules of

compliance, and other measures as may be

necessary to carry out′′ the haze regulations. 42

U.S.C. § 7492(e)(2) (incorporated by reference

into TEA-21 § 6102(c)(2)). A [*15]

commitment SIP, which by definition addresses

neither the Haze Rule’s ′′core requirements for

regional haze,′′ nor its ′′requirements for BART,′′

40 C.F.R. § 51.308(c), does not appear to satisfy

the statutory requirement. Cf. Natural Res. Def.

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Ann Lyons
Council, Inc. v. EPA, 306 U.S. App. D.C. 43, 22

F.3d 1125, 1134 (D.C. Cir. 1994) (holding, under

CAA § 110(k)(4), that EPA cannot satisfy its

responsibility to determine whether a state plan

submission complies with the CAA unless the

submission ′′contains something [**42] more

than a mere promise to take appropriate but

unidentified measures in the future,′′ and that a

submission containing nothing more than such a

commitment cannot extend the statutory

deadline).

Notwithstanding our doubts about the validity of

this provision, we decline to vacate it in light of

the uncertainty that our decision invalidating the

group-BART provisions of the Haze Rule will

cast upon the contents of the SIPs required of the

states. With the Rule and hence the contents of

the SIPs now altered and subject to revision on

remand, the more prudent course for this court is

simply to remand the deadline-extension issue as

well. This will permit the agency to reconsider

its decision to extend the deadline at the same

time that it decides what form the substantive

requirements of a revised Haze Rule should take.

Concur by: GARLAND (In Part)

Dissent by: GARLAND (In Part)

Dissent

GARLAND, Circuit Judge, concurring in part

and dissenting in part: In the Clean Air Act,

Congress declared a national goal of restoring

natural visibility in the country’s largest national

parks and wilderness areas. In Part II of today’s

opinion, the court adopts an interpretation of the

Act that, in the view of the [**43]

Environmental Protection Agency (EPA) and the

National Academy of Sciences, will prevent the

achievement of Congress’ goal. If that

interpretation were required by the statutory

language, we would of course be compelled to

adopt it. But such an interpretation is not

required. To the contrary, EPA’s construction of

the Clean Air Act as permitting the group-BART

provisions of the Haze Rule is a reasonable

interpretation of the legislative language. It is

therefore entitled to our deference under the

standard announced in Chevron U.S.A. Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837,

842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778

(1984). Accordingly, while concurring in most of

the court’s opinion, I dissent from the

conclusions it reaches in Part II.

A

Chevron instructs courts to apply a two-step

framework when reviewing an agency’s

construction of a statute. First, we must ask

′′whether Congress has directly spoken to the

precise question at issue,′′ in which case we

′′must give effect to the unambiguously

expressed intent of Congress.′′ Id. at 842-43.

However, if the ′′statute is silent or ambiguous

with respect to the specific issue,′′ we move to

[**44] the second step and must defer to the

agency’s interpretation as long as it is ′′based on

a permissible construction of the statute.′′ Id. at

843; accord Barnhart v. Walton, 152 L. Ed. 2d

330, 122 S. Ct. 1265, 1271-72 (2002).

My colleagues stop at Chevron’s first step,

concluding that the language of the Clean Air

Act (CAA) can be read in only one way. They

adopt the view of the industry petitioners that

under the Act, BART (′′best available retrofit

technology′′) controls cannot be imposed on a

source unless a state determines how much that

particular source contributes to visual

impairment in a downwind national park or

wilderness area, as well as how [*16] much

improvement in visibility would result from

installing BART controls at that specific source.

Op. at 10-11. EPA, by contrast, interprets the

Clean Air Act as permitting a collective

assessment of the impact that emissions from

(and controls on) sources located in upwind

regions have on visibility impairment in

downwind areas.

Before considering the grounds for the court’s

decision, it is important to understand why EPA

decided to require a collective contribution

approach, rather than a tracing [**45] of the

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Ann Lyons
effects of each individual source’s emissions.

Congress added § 169A to the Clean Air Act ′′in

response to a growing awareness that visibility

was rapidly deteriorating′′ in major national

parks and wilderness areas (′′Class I areas′′).

Chevron U.S.A., Inc. v. EPA, 658 F.2d 271, 272

(5th Cir. 1981). The section establishes a

national goal of restoring natural visibility in

such areas, 1

and expressly instructs EPA to issue

regulations to ′′assure ... reasonable progress′′

toward meeting the national goal. 42 U.S.C. §

7491(a)(4). After examining the results of

scientific studies, EPA concluded that such

reasonable progress was not possible without a

collective approach. The record compiled by

EPA showed that visibility impairment in Class I

areas is caused in large part by long-range

transport of combined emissions from multiple

sources. 2 Although it is practicable to trace

emissions from an individual source into its

surrounding region, and to model the transport

of combined pollution from that region to a

downwind Class I area, 3

it is not possible to

trace emissions from an individual source

directly to such a downwind area without great

[**46] time and expense 4

--and even then the

results would be of uncertain reliability. 5 Citing

the National [*17] Academy of Sciences’

conclusion that a program focused ′′on

determining the contribution of individual

emission sources to visibility impairment is

doomed to failure,′′

6 EPA adopted the

group-BART approach that is at issue here.

[**47] [**48]

My colleagues do not dispute that we must defer

to EPA’s expert opinion regarding the

impracticability of tracing individual source

1

Section 169A declares the national goal to be ′′the prevention of any future, and the remedying of any existing, impairment of

visibility in mandatory class I Federal areas.′′ 42 U.S.C. § 7491(a)(1). As the court holds today, agency regulations that aim to

accomplish these objectives ′′will of necessity aim to achieve a state of natural visibility.′′ Op. at 16.

2

See, e.g., CONGRESSIONAL RESEARCH SERVICE, REGIONAL HAZE: EPA’S PROPOSAL TO IMPROVE VISIBILITY

IN NATIONAL PARKS AND WILDERNESS AREAS 2 (1997) (J.A. at 242); NATIONAL ACADEMY OF SCIENCES,

NATIONAL RESEARCH COUNCIL, PROTECTING VISIBILITY IN NATIONAL PARKS AND WILDERNESS AREAS 7-8,

196-99 (1993) (J.A. at 362, 456-57) [hereinafter ′′NAS Report′′].

3

See Regional Haze Regulations, 64 Fed. Reg. 35,714, 35,718 (July 1, 1999). The court does not dispute the reasonableness

of, or support for, the latter proposition. Cf. Appalachian Power Co. v. EPA, 328 U.S. App. D.C. 379, 135 F.3d 791, 802 (D.C. Cir.

1998) (noting that ′′computer models are a useful and often essential tool for performing the Herculean labors Congress imposed

on EPA in the Clean Air Act,′′ and that ′′their scientific nature does not easily lend itself to judicial review′′ (internal quotation

marks omitted)); 135 F.3d at 814 (′′Our consideration of EPA’s use of computer models proceeds with considerable deference to

the agency’s expertise.′′).

4

See NAS Report at 240-41 (J.A. at 478) (′′It would be extremely time-consuming and expensive to try to determine the

percent contribution of individual sources to haze one source at a time.′′); Regional Haze Regulations, 64 Fed. Reg. at 35,740

(′′Establishing the contribution from one particular source to the problem of regional haze would require lengthy and expensive

studies and pose substantial technical difficulties.′′).

5

See NAS Report at 2 (J.A. at 359) (′′During transport, the emissions from many sources mix together to form a uniform,

widespread haze known as regional haze.′′); id. at 20 (J.A. at 368) (′′The extent to which [source-specific] techniques can be used

in attributing visibility impairment is uncertain, as is their usefulness in estimating the effect that different control strategies

might have on visibility.′′); id. at 25-26 (J.A. at 370-71) (′′Efforts to decide whether a particular source is contributing to regional

haze have thus far encountered grave obstacles. Studies designed to estimate the effect of a particular source on surrounding

visibility are expensive, and the results can be uncertain and controversial.′′). To take just one example, ′′the efforts to trace the

contribution of the Navajo Generating Station to haze in the Grand Canyon National Park took several years and cost millions of

dollars without leading to quantitatively definitive answers.′′ Id. at 7 (J.A. at 361).

6

EPA, Resp. to Pets. for Recons. of Regional Haze Rule 16 (Jan. 10, 2001) (J.A. at 17) (quoting NAS Report at 7 (J.A. at

361)); see also NAS Report at 240 (J.A. at 478) (′′The committee doubts ... that such attributions could be the basis for a workable

visibility protection program.′′).

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Ann Lyons
emissions. 7 Rather, they conclude that

notwithstanding EPA’s view of the facts, the

industry petitioners are correct that the Haze

Rule’s group-BART provisions violate the plain

meaning of the Clean Air Act by: (i) employing

a group rather than source-by-source standard in

determining the appropriate BART controls for a

particular source, and (ii) constraining the

authority of the states to make their own

BART-related decisions. These two contentions

are considered in Parts B and C below. Because

I conclude that there is nothing in the Clean Air

Act that bars the approach taken by EPA, and

that to the contrary the Haze Rule rests on a

reasonable interpretation of the statutory [**49]

language, I would follow the Supreme Court’s

direction in Chevron and uphold the Rule.

B

As the court notes, the Haze Rule employs a

group analysis in making two determinations

required by the Clean Air Act: (i) whether a

pollution-emitting source is subject to BART

requirements at all, and (ii) what kind of BART

controls should be placed on a subject source.

The industry petitioners contend that the Clean

Air Act prohibits the use of a group standard in

making either of these determinations.

Under the Act, a source is subject to BART

requirements, and hence a state implementation

plan must require such a source to install BART

controls, if it ′′emits any air pollutant which may

[**50] reasonably be anticipated to cause or

contribute to any impairment of visibility in any

[Class I] area.′′ CAA § 169A(b)(2)(A), 42 U.S.C.

§ 7491(b)(2)(A). Under the Haze Rule, a state

must ′′find that a BART-eligible source is

’reasonably anticipated to cause or contribute’ to

regional haze if it can be shown that the source

emits pollutants within a geographic area from

which pollutants can be emitted and transported

downwind to a Class I area.′′ Regional Haze

Regulations, 64 Fed. Reg. at 35,740. That is, a

source is subject to BART requirements, without

proof of that source’s individual contribution to

visibility impairment in a Class I area, as long as

the source emits pollutants into an upwind area

from which pollutants may be transported to a

downwind Class I area. Id.

The industry petitioners contend that CAA §

169A(b)(2) unambiguously provides that a

source is subject to BART requirements [*18]

only if a state can show the extent to which that

particular source contributes to impairment in a

Class I area. That section, however, requires

states to impose BART controls on any source

that ′′emits any air pollutant which may

reasonably be [**51] anticipated to cause or

contribute to any impairment of visibility in any

[Class I] area.′′ 42 U.S.C. § 7491(b)(2)(A)

(emphasis added). Far from plainly compelling

the petitioners’ reading, the italicized words pile

ambiguity upon ambiguity and virtually invite

the reader to adopt the construction favored by

EPA. See MERRIAM-WEBSTER’S

COLLEGIATE DICTIONARY 252 (10th ed.

1996) (defining ′′contribute′′ as ′′to give or

supply in common with others,′′ or ′′to give a part

to a common ... store′′) (emphasis added);

Central Ariz. Water Conservation Dist., 990 F.2d

1531, 1541 (9th Cir. 1993) (′′The phrase ’may

reasonably be anticipated’ suggests that

Congress did not intend to require EPA to show

a precise relationship between a source’s

emissions and all or a specific fraction of the

visibility impairment within a Class I area.′′

(quoting with approval NATIONAL

RESEARCH COUNCIL, HAZE IN THE

GRAND CANYON: AN EVALUATION OF

THE WINTER HAZE INTENSIVE TRACER

EXPERIMENT 5 (1990))). If a source is one of

several that emit pollutants into an upwind area,

and if pollution from that area is transported

7

See Appalachian Power, 135 F.3d at 801-02 (′′Our analysis is guided by the deference traditionally given to agency expertise,

particularly when dealing with a statutory scheme as unwieldy and science-driven as the Clean Air Act.′′); see also Husqvarna

AB v. EPA, 254 F.3d 195, 199 (D.C. Cir. 2001).

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downwind to a national park, 8

then it [**52]

can hardly be unreasonable to conclude that the

pollutants issued by the source ′′may reasonably

be anticipated′′ to ′′contribute′′ to ′′any′′

impairment in the park.

My colleagues wisely do not accept the industry

petitioners’ contention that § 169A(b)(2) bars a

collective determination of whether a source is

subject to BART. (As discussed in Part C infra,

they do conclude that EPA may not require the

states to employ such a mode of analysis.) They

do, however, accept the petitioners’ contention

that to determine the kind of BART controls that

should be imposed on a subject source, a state

must determine how much that particular source

contributes to visual impairment in the

downwind Class I area, Op. at 11, as well as the

degree of improvement in visibility [**53] that

would occur in the downwind area if that

particular source installed such controls, id. at

10. The Haze Rule, by contrast, provides that

once a state has concluded that a particular

source is subject to BART requirements, in

determining the kind of BART controls to place

on the source the state must consider the degree

of improvement that would be achieved in the

downwind area by imposing BART controls on

all subject sources in the contributing upwind

area. See40 C.F.R. § 51.308(e)(1)(ii)(B);

Regional Haze Regulations, 64 Fed. Reg. at

35,741.

The industry petitioners rest their contention that

the statute unambiguously bars this collective

assessment approach on § 169A(g)(2), which

states:

In determining best available retrofit

technology the State ... shall take into

consideration [1] the costs of

compliance, [2] the energy and nonair

quality environmental impacts of

compliance, [3] any existing pollution

control technology in use at the

source, [4] the remaining useful life of

the source, and [5] the degree of

improvement in visibility which may

reasonably be anticipated to result

from the use of such [**54]

technology.

42 U.S.C. § 7491(g)(2). According to both

the industry petitioners and the court, this

section requires the state to take into

consideration [*19] each of the five listed

factors on a source-by-source basis. Since

the Haze Rule does require

source-by-source consideration of the first

four factors, see Regional Haze

Regulations, 64 Fed. Reg. at 35,740-41;

Op. at 9, the only question is whether such

consideration is also required of the fifth

factor: ′′the degree of improvement in

visibility which may reasonably be

anticipated to result from the use of such

technology.′′

There is nothing in the statutory language that

requires a source-by-source application of the

fifth factor. Section 169A(g)(2) requires an

assessment of the degree of improvement that

may reasonably be anticipated ′′from the use of

such technology,′′ but it does not say whether

that improvement must be from the use of such

technology by a single source or by all sources in

the upwind area. 9 Although the court says that

the statute does not permit any of the five factors

to be treated differently from any of the others,

the statute itself does not say so. Moreover,

[**55] the first four factors are different in kind

from the fifth: the first four all go to the cost of

imposing controls on a particular source and

permit a determination of the most cost-effective

control technology for each such source.

Regional Haze Regulations, 64 Fed. Reg. at

8 Under the Haze Rule, the state must establish the first condition directly and the second through the application of computer

modeling techniques. See Regional Haze Regulations, 64 Fed. Reg. at 35,740, 35,741; supra note 3.

9

See Regional Haze Regulations, 64 Fed. Reg. at 35,741 (′′EPA interprets the language ’from the use of such technology’ to

refer to the application of BART level controls to all sources subject to BART.′′).

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35,740-41. The fifth factor, by contrast, goes to

the benefit to be derived from using the most

cost-effective controls. In EPA’s expert view,

that benefit can best be determined by

considering the total benefit that would accrue if

each source in the upwind area used the kind of

controls most cost-effective for that source.

The industry petitioners concede that §

169A(g)(2) does not require a state to undertake

a cost-benefit analysis in deciding the type of

controls to impose, or specify the weight [**56]

to be accorded to any of the five factors. 10 All

that is required is that the state ′′take into

consideration′′ the five listed factors. 42 U.S.C. §

7491(g)(2). Because the statute does not specify

how the state should take those factors into

consideration, it does not bar EPA from

employing a group rather than source-by-source

mode of analysis in considering benefits. See

Weyerhaeuser Co. v. Costle, 191 U.S. App. D.C.

309, 590 F.2d 1011, 1045 (D.C. Cir. 1978)

(holding that where ′′Congress did not mandate

any particular structure or weight′′ for the factors

EPA is to consider, ′′it left EPA with discretion to

decide how to account for the consideration

factors, and how much weight to give each

factor′′); see also New York v. Reilly, 297 U.S.

App. D.C. 147, 969 F.2d 1147, 1150 (D.C. Cir.

1992) (same).

[**57] Other related provisions of the Clean Air

Act support EPA’s reading of § 169A(g)(2) as

permitting a region-wide assessment. Section

169A(a)(3) directs EPA to undertake a study to

′′identify the classes or categories of sources ...

which, alone or in conjunction with other

sources ..., may reasonably be anticipated to

cause or contribute significantly to impairment

of visibility,′′ 42 U.S.C. § 7491(a)(3) (emphasis

added), and § 169A(b)(1) directs that the

regulations promulgated under [*20] § 169A

take into account the recommendations of that

study, 42 U.S.C. § 7491(b)(1). Similarly, §

169B(a)(1) instructs EPA to conduct research ′′to

identify and evaluate sources and source regions

of ... visibility impairment.′′ 42 U.S.C. §

7492(a)(1) (emphasis added); see id.§

7492(a)(2). These provisions not only permit,

but again appear to invite a group-BART

approach.

The court states that ′′under EPA’s take on the

statute, it is ... entirely possible that a source

may be forced to spend millions of dollars for

new technology that will have no appreciable

effect on the haze in any Class I area.′′ Op. at 10.

In accordance [**58] with the statute, however,

EPA has structured the Haze Rule to avoid this

result. The Rule creates an evidentiary

presumption that, if a source emits pollution into

an upwind region from which it can be shown

that pollution is transported downwind to a Class

I area, then it ′′may reasonably be anticipated′′

that the source ′′causes or contributes to′′

impairment in the Class I area--and hence that

limiting the source’s emissions will reduce that

impairment. 11 But the presumption is not

irrebuttable. To the contrary, the Haze Rule

10 Reply Br. for Industry Pet’rs at 8 (′′Industry Petitioners agree ... that states are free to determine the weight and significance

to be assigned to each of the CAA § 169A(g)(2) factors.′′); see Op. at 10; cf. American Textile Mfrs. Inst., Inc. v. Donovan,

452 U.S. 490, 510, 69 L. Ed. 2d 185, 101 S. Ct. 2478 (1981) (′′When Congress has intended that an agency engage in cost-benefit

analysis, it has clearly indicated such intent on the face of the statute.′′); Central Ariz., 990 F.2d at 1542 n.10 (holding that

′′Congress has not required ’cost-benefit’ analysis in the [Clean Air] Act′′).

11 The court does not dispute the reasonableness of this presumption. See American Iron & Steel Inst. v. EPA, 325 U.S. App.

D.C. 76, 115 F.3d 979, 1000 (D.C. Cir. 1997) (holding that it is reasonable for EPA to presume that if a pollutant is present in fish

tissue at a level exceeding that set by regulation, then any facility ′′that contributes a pollutant to a body of water [in which the

fish swims] ... has the reasonable potential to contribute to that exceedence′′); see also Baltimore Gas & Elec. Co. v. Natural Res.

Def. Council, Inc., 462 U.S. 87, 103, 76 L. Ed. 2d 437, 103 S. Ct. 2246 (1983) (holding that a reviewing court must be ′′at its

most deferential′′ when the agency is ′′making predictions, within its area of special expertise, at the frontiers of science′′); American

Trucking Ass’n, Inc. v. EPA, 336 U.S. App. D.C. 16, 175 F.3d 1027, 1055 (D.C. Cir. 1999) (′′We have expressly held that

EPA’s decision to adopt and set air quality standards need only be based on reasonable extrapolations from some reliable evidence.′′

(internal quotation marks omitted)), rev’d on other grounds sub nom. Whitman v. American Trucking Ass’ns, Inc., 531 U.S.

457, 149 L. Ed. 2d 1, 121 S. Ct. 903 (2001).

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incorporates the exemption provision of §

169A(c)(1), which permits EPA to

exempt any major stationary source

from the [BART] requirement of

subsection (b)(2)(A) of this section,

upon his determination that such

source does not or will not, by itself or

in combination with other sources,

emit any air pollutant which may

reasonably be anticipated to cause or

contribute to a significant impairment

of visibility in any mandatory class I

Federal area.

42 U.S.C. § 7491(c)(1); see also40 C.F.R.

§§ 51.303, .308(e)(4). Hence, a source that

emits pollution into a source region, but

that can [**59] show that BART controls

are unnecessary because its pollution does

not contribute to a significant impairment

of visibility in a Class I area, will not have

to spend money installing BART controls.

12 All that the Haze Rule does is put the

burden of proof on the polluter, rather than

on the state. Moreover, the statute’s

limitation of the exemption to a source that

does not by itself ′′or in combination with

other sources′′ contribute to a significant

impairment, 42 U.S.C. § 7491(c)(1), once

again invites the collective-assessment

approach taken by EPA.

[**60]

[*21] Finally, one more provision of § 169A

deserves repeat mention here. As discussed in

Part A above, § 169A(a)(4) instructs EPA ′′to

promulgate regulations to assure reasonable

progress toward meeting the national goal′′ of

restoring natural visibility conditions. 42 U.S.C.

§ 7491(a)(4). Yet EPA’s findings indicate that it

will not be possible ′′to assure reasonable

progress′′ if the statutory interpretation

announced today prevails: it is simply not

practicable to determine, as the court’s

interpretation requires, how much a particular

′′source is contributing to visual impairment in

[**61] downwind Class I areas,′′ or the degree

of improvement in visibility in such areas ′′that

would result from [a particular] source’s

installing and operating′′ BART controls. Op. at

11, 10; see supra notes 4, 5. Indeed, EPA

explained that it ′′avoided inclusion of any

approach in the regional haze rule that required

the assessment of the visibility improvement

attributed to an individual source because′′ the

National Academy of Sciences had determined

that such an approach was ′′doomed to failure.′′

Resp. to Pets. for Recons. of Regional Haze Rule

16 (Jan. 10, 2001) (J.A. at 17) (quoting

NATIONAL ACADEMY OF SCIENCES,

NATIONAL RESEARCH COUNCIL,

PROTECTING VISIBILITY IN NATIONAL

PARKS AND WILDERNESS AREAS 7-8,

196-99 (1993) (J.A. at 362, 456-57)). We should

not lightly assume that Congress enacted a

statute that makes it impracticable to achieve the

same statute’s stated goal. There certainly is

nothing in the language of the Clean Air Act that

requires us to adopt such a self-defeating

construction.

C

The industry petitioners’ second attack on the

Haze Rule marches under the banner of states’

rights, but in this case that banner is a false flag.

The Rule gives states great leeway to [**62]

make the BART determinations required by the

Clean Air Act, reserving to EPA no more

authority than Congress conferred upon the

agency. Moreover, as discussed above, the

industry petitioners’ insistence that both EPA

and the states are barred from using

group-BART principles will impose an

enormous unfunded mandate on the

states--requiring them to engage in lengthy,

expensive, and likely fruitless studies to trace

12 The court correctly notes that under this exemption, it is EPA rather than the state that determines whether a source has

made the required showing. EPA, however, does not rely on the exemption to answer the state-authority issue discussed in Part C

below, but rather to counter the petitioners’ claim that the Haze Rule fails to provide a source with the opportunity to demonstrate

that it makes no appreciable contribution to visibility impairment in a Class I area. Br. for EPA at 29-30, 32.

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pollutants from specific sources into specific

Class I areas. 13 It is not surprising, therefore,

that only a single state has enlisted under the

petitioner’s banner. Five others have filed briefs

in support of EPA, while the balance remain

silent.

The industry petitioners attack, as unlawfully

constraining state authority, both the provision of

the Haze Rule that concerns which sources

[**63] are subject to BART requirements, and

the provision that concerns the kind of BART

controls that must be installed on subject

sources. With respect to the former, the

petitioners emphasize § 169A’s declaration that

′′each major stationary source ... which, as

determined by the State ... emits any air

pollution which may reasonably be anticipated

to cause or contribute to any impairment of

visibility′′ in a Class I area, is subject to BART

requirements. 42 U.S.C. § 7491(b)(2)(A)

(emphasis added). With respect to the latter, they

stress that § 169A requires that each subject

source install ′′the best retrofit technology, as

determined by the State,′′ 42 U.S.C. §

7491(b)(2)(A), and that ′′in determining best

available retrofit technology the State ... shall

take into consideration′′ the five factors

discussed in Part B above, id. § 7491(g)(2)

(emphasis added). By directing [*22] the states

to employ a group-BART analysis in making

these determinations, the industry petitioners

contend, and the court agrees, that EPA has

unlawfully constrained the states’

decisionmaking authority. Op. at 11-13.

The Haze Rule, however, does not contravene

[**64] the statutory commands italicized

above. Under the Rule, it is the state and not EPA

that determines which specific sources emit

pollution that ′′may reasonably be anticipated to

cause or contribute to′′ impairment, and hence

are subject to BART requirements. All that EPA

has done, as explained in Part B, is reasonably

interpret that phrase to include sources that emit

pollution into upwind regions from which

pollution is transported to national parks. It is

still the state that must determine both that the

source emits covered pollutants, and that the

region into which the source emits such

pollutants is one from which emissions may

reasonably be anticipated to be transported to

downwind parks. See40 C.F.R. §

51.308(e)(1)(ii); Regional Haze Regulations, 64

Fed. Reg. at 35,739-41; Br. for EPA at 43.

Similarly, it is still the state that must take into

consideration the five statutory factors and the

state that must then determine the best available

retrofit technology for a particular source. All

that EPA has done, again as explained in Part B,

is reasonably interpret the fifth of those factors

to require the state to analyze [**65] the degree

of anticipated improvement on a group basis.

See Regional Haze Regulations, 64 Fed. Reg. at

35,741.

Moreover, the Clean Air Act expressly delegates

to EPA the authority to make these kinds of

judgments. As already noted, § 169A directs

EPA to promulgate regulations to assure

reasonable progress toward meeting the national

goal of restoring natural visibility. 42 U.S.C. §

7491(a)(4). It further instructs that those

regulations shall ′′provide guidelines to the

States ... on appropriate techniques and methods

for implementing′′ the section’s provisions,

including the provisions governing which

sources are subject to BART requirements and

the kind of BART controls that should be

imposed. Id.§ 7491(b)(1). The section likewise

directs EPA to ′′require each applicable

implementation plan for a State ... to contain

such emission limits, schedules of compliance

and other measures as may be necessary to make

reasonable progress toward meeting the national

goal′′ of restoring natural visibility. Id.§

7491(b)(2). Similarly, the next section of the Act,

§ 169B, orders EPA to ′′carry out [its] regulatory

responsibilities′′ under § [**66] 169A by

promulgating ′′criteria for measuring ’reasonable

13 See supra notes 4, 5; Br. for Maine, et al. at 10 (protesting that to adopt the industry petitioners’ interpretation of § 169A(g)(2)

′′would impose staggering and costly administrative burdens′′ on the states).

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progress’ toward the national goal.′′ 42 U.S.C. §

7492(e)(1). These provisions give EPA ample

authority to promulgate guidelines requiring

states to use group-BART principles to

determine both the sources that are subject to

BART requirements and the kinds of controls

those sources must install.

My colleagues contend that the Conference

Report on the 1977 Clean Air Amendments

reinforces their view that the Haze Rule

impermissibly constrains state authority. Op. at

13. But that report is a weak reed upon which to

rest a Chevron step one claim regarding the Act’s

plain meaning. As the court recounts, the report

merely states that the conference ′′agreement

clarifies that the State, rather than the

Administrator, identifies the source that impairs

visibility,′′ and that in determining the

appropriate BART controls for such a source,

′′the state shall determine what constitutes ’best

available retrofit technology’ ... in establishing

emission limitations on a source-by-source

basis.′′ H.R. CONF. REP. NO. 95-564, at 535

(1977). The report tells us nothing more about

the referenced ′′agreement′′ than can be gleaned

[**67] from these [*23] quotations, and the

quotations themselves do little more than restate

the statutory language. Moreover, as noted

above, the Haze Rule is consistent with these

quotations: under the Rule, it is the state rather

than EPA that identifies the sources that impair

visibility, and it is the state that determines the

best available retrofit technology for each such

individual source. All that the group-BART

provisions of the Rule do is effectuate EPA’s

authority to ′′provide guidelines to the states′′ for

making these determinations regarding

particular sources. 42 U.S.C. § 7491(b)(1).

14

[**68] As the Clean Air Act repeatedly

declares, restoring natural visibility to national

parks and wilderness areas is a ′′national′′ goal.

See id.§ 7491(a)(1), (a)(4), (b)(2), (b)(2)(B); id.§

7492(e)(1). It is not surprising, therefore, that

while the Act leaves many determinations

regarding particular sources to the states, it

grants EPA authority to establish national

guidelines for the kind of analysis the states must

employ in making those determinations. 15

Under the statute, those guidelines must ′′assure

... reasonable progress toward meeting the

national goal′′ of restoring natural visibility. Id.§

7491(a)(4). Because EPA has reasonably

determined that group-BART principles are

necessary to provide such assurance, the

provisions of the Haze Rule that incorporate

those principles are a permissible exercise of the

agency’s delegated power.

[**69] D

In sum, there is nothing in the language,

structure or history of the Clean Air Act that bars

EPA from promulgating the group-BART

provisions of its Haze Rule. To the contrary,

those provisions represent ′′a reasonable

interpretation of an ambiguous statute,′′ and

therefore must be given effect by this court.

Christensen v. Harris County, 529 U.S. 576, 586,

146 L. Ed. 2d 621, 120 S. Ct. 1655 (2000) (citing

Chevron, 467 U.S. at 842-844). Accordingly, I

respectfully dissent from the court’s decision to

strike down those provisions.

14 The court states that the ′′agreement′′ referred to in the report was an agreement to reject the provisions of an earlier House

bill. As there may have been many reasons for rejecting that bill, the ′′rejection of [the] proposed legislation during the course of

enactment provides a hazardous basis from which to determine legislative intent,′′ GAO v. GAO Pers. Appeals Bd., 225 U.S.

App. D.C. 350, 698 F.2d 516, 525 n.52 (D.C. Cir. 1983), and a particularly hazardous foundation for a Chevron step one claim.

In any event, the most the court can divine regarding the content of the agreement is that it was to insert language clarifying that

the states were to ′′determine whether a source contributes to visibility impairment and, if so, what BART controls should be

applied to that source.′′ Op. at 13. As noted in the text, the Haze Rule leaves both determinations in the hands of the states.

15 Cf. Appalachian Power Co. v. EPA, 346 U.S. App. D.C. 38, 249 F.3d 1032, 1047 (D.C. Cir. 2001) (holding that a state’s

development of its implementation plan under CAA § 110 is not ′′free of extrinsic legal constraints,′′ including EPA’s reasonable

construction of CAA § 126).

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