United States Court of Appeals, District of Columbia Circuit
March 22, 2018
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.
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.
M. Flynn and Lucinda Minton Langworthy were on the brief for
Caroline Lobdell was on the brief for amici curiae National
Cattlemen's Beef Association, et al. in support of
Before: Griffith and Katsas, Circuit Judges, and Edwards,
Senior Circuit Judge.
Griffith, Circuit Judge
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.
"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).
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.
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").
environmental groups filed a timely petition for review in
our court,  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,  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