Court: Court of Appeals for the D.C. Circuit; October 29, 1999; Federal Appellate Court
The court considers several petitions for rehearing related to the Environmental Protection Agency (EPA) and intervenors New Jersey, Massachusetts, and the American Lung Association. The court partially grants the petitions from these parties while denying others, specifically that of Citizen for Balanced Transportation. The court modifies certain parts of its earlier opinion regarding the EPA’s determination of public health concerns related to pollutants, specifically addressing three key aspects:
1. The EPA failed to articulate an intelligible principle in assessing public health concerns associated with pollutant levels, as established in prior case law.
2. The court clarifies that Subpart 2, not Subpart 1, governs the classifications and attainment dates for nonattainment areas under the revised primary ozone National Ambient Air Quality Standards (NAAQS).
3. The EPA is required to consider the positive effects of pollutants when formulating air quality criteria.
In the context of the EPA's arguments, the court emphasizes that the agency did not previously assert an intelligible principle or corollaries that would limit its discretion in setting NAAQS. The EPA asserted that the standards must be "requisite" for public health protection but failed to adequately explain or demonstrate how its decisions conformed to this principle. The court notes that the Clean Air Act mandates NAAQS to be based on adequate health protections, highlighting a lack of clarity from the EPA in its previous rulemakings.
EPA has interpreted the Clean Air Act (CAA) § 109(b)(1) to establish decision-making criteria for setting air quality standards, asserting that the Act provides a sufficient 'intelligible principle' to guide its discretion. The key question regarding this intelligible principle remains unanswered, and the court has previously noted that if statutory language and agency interpretation suggest unconstitutional delegation of power, the appropriate response is to allow the agency to define a standard rather than invalidate the statute. EPA has now proposed what it believes is an intelligible principle that limits its discretion, but the court refrains from assessing its adequacy until after the EPA applies it in establishing a National Ambient Air Quality Standard (NAAQS).
The court acknowledges that Supreme Court precedent allows for ambiguous statutory principles to gain meaning from the Act's purpose and context. Examples include delegations to various agencies that were upheld based on the specific contexts and practices relevant to their functions. The court has also recognized an intelligible principle in other cases by interpreting statutes with reference to their legislative history and context.
Furthermore, the court emphasizes that choosing among permissible interpretations of ambiguous principles involves policy decisions, and since the Chevron doctrine, courts must defer to an agency's reasonable interpretations of ambiguous statutory terms and principles. This marks a shift from earlier approaches, such as in the Benzene case, where the Supreme Court itself identified an intelligible principle within an ambiguous statute, aligning with the Chevron standard.
The EPA's petition for rehearing challenges the court's earlier rulings on jurisdiction and the implementation of the revised National Ambient Air Quality Standards (NAAQS) for ozone under Subpart 2. The court first addresses jurisdiction, rejecting the EPA's argument that it lacks jurisdiction due to the absence of final agency action. It cites 42 U.S.C. 7607(b), which limits review to final actions, and emphasizes that the determination of finality is functional rather than formal. The court finds the EPA's interpretation of Subpart 2 to be clear and definitive, indicating that the agency has made a final decision regarding its authority to implement the revised ozone standard, which triggers state compliance requirements.
The court also dismisses the EPA's claim that its preamble statements are not ripe for review, arguing that the legal question of whether Subpart 2 restricts the EPA's ability to designate nonattainment areas under the new standard is suitable for judicial review. In the second part addressing Subpart 2, the court upholds its earlier interpretation that section 181(a) encompasses nonattainment designations under all subsections of 107(d), countering the EPA's new argument that only specific sections apply. The court finds the EPA's revised interpretation unconvincing, noting that all Clean Air Act nonattainment area requirements reference 107(d).
References to 42 U.S.C. sections 7502 and 7511 indicate the EPA's interpretation of designations under 107(d) is broader than previously argued, as the EPA does not limit its references solely to 107(d)(1)(C) and (d)(4). The court rejects the EPA's interpretation of 181(a) as inconsistent with the principle that identical terms in legislation should be understood consistently. However, the court acknowledges two valid points raised by the EPA regarding Subpart 2, leading to a partial grant of the EPA's rehearing petition.
The court corrects its earlier treatment of attainment dates in Subpart 2, clarifying these dates are outer limits rather than the judgment of Congress on expeditious reduction of ozone levels. The court replaces specific sentences to reflect that Subpart 2 does not prevent the EPA from requiring compliance with revised secondary ozone National Ambient Air Quality Standards (NAAQS) "as expeditiously as practicable."
Additionally, the court resolves inconsistencies in its conclusions regarding the enforcement of revised primary ozone NAAQS under Subpart 2. It revises its original opinion to clarify that the EPA can enforce revised standards only in accordance with Subpart 2 and states that the new ozone standards will not be vacated at this time, though parties can seek vacatur in the future if circumstances change.
The court maintains its stance that "all identifiable effects" under CAA 108(a)(2) include beneficial effects, dismissing the EPA's arguments to the contrary as unconvincing. The EPA's petition for rehearing is granted in part and denied in part, with final remarks on the standards for determining causation related to particulate matter.
The EPA contends that effects of ozone below 0.08 ppm are transient and reversible, thus less serious. The court referenced this observation but noted it in relation to a dissenting opinion, emphasizing that Judge Silberman criticized the use of the non-delegation doctrine in the Benzene case, suggesting it was merely a superficial justification. The court argued that lower courts should not base their rulings on the dismissal of a Supreme Court decision. The EPA has not yet designated any areas as nonattainment, and if it were correct in its jurisdictional claims, the court would lack the authority to rule that Subpart 2 does not limit the EPA's power to designate nonattainment areas under revised National Ambient Air Quality Standards (NAAQS). The EPA referenced 42 U.S.C. § 7502(a)(1)(B) to support its argument that challenges to its area classifications should wait until it takes final action on State Implementation Plans (SIPs) or triggers sanctions for non-compliance. This statute indicates that classifications of areas as attainment or nonattainment are not subject to judicial review until the Administrator takes final action. However, the court stated that this does not preclude it from determining whether the EPA has validly established a revised standard before any area classification occurs.
