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Natural Resources Defense Council v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

July 20, 2018

Natural Resources Defense Council and Sierra Club, Petitioners
v.
Environmental Protection Agency and Andrew Wheeler, Respondents American Petroleum Institute, Intervenor

          Argued March 22, 2018

          On Petition for Review of a Final Agency Action of the United States Environmental Protection Agency

          Margaret T. Hsieh argued the cause for petitioners. With her on the briefs were Sanjay Narayan, John Walke, and Emily K. Davis. Nancy S. Marks entered an appearance.

          Sue Chen, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief was Jeffrey H. Wood, Acting Assistant Attorney General.

          Aaron M. Flynn and Lucinda Minton Langworthy were on the brief for intervenor-respondent.

          Caroline Lobdell was on the brief for amici curiae National Cattlemen's Beef Association, et al. in support of respondents.

          Before: Griffith and Katsas, Circuit Judges, and Edwards, Senior Circuit Judge.

          OPINION

          Griffith, Circuit Judge

         The Clean Air Act calls upon the Environmental Protection Agency to protect air quality by enforcing state and local limits on the amount of pollution. The agency need not count against those limits pollution caused by "exceptional events." In this case, Natural Resources Defense Council and Sierra Club challenge a rule the agency uses to determine whether an event caused by recurring activity is "natural," and thus "exceptional," or "caused by human activity," and thus not. 42 U.S.C. § 7619(b)(1)(A)(iii). We think the agency's rule is permitted by the Clean Air Act.

         I

         To "protect the public health," 42 U.S.C. § 7409(b)(1), the Clean Air Act (the "Act") established a nationwide policy for limiting air pollution on the state and local level, id. § 7410. The Act directs the Environmental Protection Agency (EPA) to set uniform levels of concentrations of various pollutants, National Ambient Air Quality Standards (NAAQS), that local areas must not exceed. Id. § 7409. Each state must earn EPA's approval of a state implementation plan (SIP), which commits the state to recording levels of specified pollutants using a network of air-quality monitors. Id. § 7410(a). By recording the concentration levels of these pollutants, the monitors identify areas that exceed the NAAQS. States report pollutant levels to EPA quarterly and receive from the agency "attainment" designations when the levels are below the NAAQS and "nonattainment" designations, accompanied by additional air-quality regulations, when the levels exceed the NAAQS. Id. § 7407; see also, e.g., 40 C.F.R. § 50.6 (establishing the NAAQS for large particulate matter, setting attainment to be exceeding a 24-hour average concentration of 150 µg/m3 no more than one day within a calendar year).

         Since 1977, EPA has recognized that "[f]ederal, [s]tate, and local air pollution control officials have expressed a great deal of concern" that counting emissions caused by "exceptional events" inflates reported levels of pollutants, which sometimes pushes an area otherwise in attainment to be designated as nonattainment. EPA, EPA-450/4-86-007, Guideline on the Identification and Use of Air Quality Data Affected by Exceptional Events 1 (1986). To avoid this, EPA suggested in a series of informal guidelines that state and federal agencies need not include in their pollution reports those pollutants emitted from exceptional events. See, e.g., EPA, OAPQS No. 1.2-008, Guideline for the Interpretation of Air Quality Standards (1977). The agency considered events to be exceptional if "they are not expected to recur routinely at a given location, or they are possibly uncontrollable or unrealistic to control through the [SIP] process." EPA-450/4-86-007 at 1. In 2005, Congress added this practice to the Act. Act of Aug. 10, 2005, Pub. L. No. 109-59, sec. 6013(a), § 319, 119 Stat 1144, 1882-884 (codified as amended at 42 U.S.C. § 7619(b)) ("Air quality monitoring data influenced by exceptional events."). Since then, EPA has had statutory authority to exclude from a state's reported pollutant levels emissions that result from exceptional events. Id.

         The Act sets out several requirements that events must satisfy to be exceptional. Id. § 7619(b)(1)(A). However, one of those requirements applies only to events "caused by human activity" and not "natural event[s]." Id. § 7619(b)(1)(A)(iii) ("[A]n event [must be] caused by human activity that is unlikely to recur at a particular location or a natural event."). Through notice-and-comment rulemaking, EPA proposed that "natural events" include events that are caused by both natural and human activity, so long as such human activity complies with relevant environmental regulations. Treatment of Data Influenced by Exceptional Events, 80 Fed. Reg. 72, 840, 72, 854 (Nov. 20, 2015). Natural Resources Defense Council and Sierra Club (together, the "environmental groups") objected to the definition, arguing that an event caused by human activity cannot be a natural event. EPA replied that "there is not always a bright line" between natural and human-caused events, J.A. 135, and adopted the definition as a final rule, Treatment of Data Influenced by Exceptional Events, 81 Fed. Reg. 68, 216 (Oct. 3, 2016) ("2016 Rule").

         The environmental groups filed a timely petition for review in our court, [1] and we have jurisdiction to review the 2016 Rule for compliance with the Act. See 42 U.S.C. § 7607(b)(1). The American Petroleum Institute (API) moved to intervene on behalf of EPA but failed to show the required Article III standing. See Deutsche Bank National Trust Co. v. FDIC, 717 F.3d 189, 193 (D.C. Cir. 2013). API claims representational standing, [2] API Mot. to Intervene 6 n.2, but that requires "specifically identify[ing] members who have suffered the requisite harm," Chamber of Commerce of the U.S. v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (citations and internal quotation marks omitted). Nowhere in its motion or brief does API identify a single member of its organization or support with evidence its vague assertion that an adverse result in this case will injure any member. Because API failed to establish the constitutional standing required to participate ...


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