Masias v. Environmental Protection Agency

          Argued September 11, 2018

          On Petitions for Review of an Action of the United States Environmental Protection Agency

          Robert Ukeiley argued the cause and filed the briefs for petitioners Samuel Masias, et al.

          Lisa K. Perfetto argued the cause for petitioner Sierra Club. With her on the briefs were Thomas J. Cmar and Joshua D. Smith.

          Dennis Lane argued the cause and filed the briefs for petitioner Kansas City Board of Public Utilities.

          Amanda Shafer Berman, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief was Jonathan D. Brightbill, Deputy Assistant Attorney General. John C. Cruden entered an appearance.

          Lucinda Minton Langworthy argued the cause for respondent-intervenors. With her on the brief were Renee Cipriano, J. Michael Showalter, and Aaron M. Flynn.

          Before: Tatel and Millett, Circuit Judges, and Williams, Senior Circuit Judge.

          OPINION

          WILLIAMS SENIOR CIRCUIT JUDGE.

         This case arises out of the Environmental Protection Agency's designation of 61 areas under the National Ambient Air Quality Standard for sulfur dioxide. In these consolidated cases, industry and environmental petitioners challenge EPA's determination that it could not, on the basis of "available information," classify three of the 61 areas as meeting or not meeting the air quality standard, and that it must therefore designate them as "unclassifiable." For the reasons below, we dismiss or deny the petitions for review.

         The Clean Air Act, 42 U.S.C. §§ 7401-7671q, directs EPA to set the maximum permissible concentration of certain pollutants in the ambient air. These standards are called National Ambient Air Quality Standards, or NAAQS. Id. §§ 7408-7409. Once EPA promulgates a new NAAQS for a given pollutant, states are to submit lists designating all areas in the state as being in "attainment," in "nonattainment," or "unclassifiable" with respect to that standard. Id. § 7407(d)(1)(A). "Nonattainment" areas are ones that violate the NAAQS or contribute to NAAQS violations in a nearby area; "attainment" areas meet the NAAQS; and "unclassifiable" areas are those which cannot be classified on the basis of "available information." Id. § 7407(d)(1)(A)(i)- (iii). EPA itself either promulgates the states' designations or modifies them as appropriate; the agency also makes its own designations when a state fails to do so. Id. § 7407(d)(1)(B)(i)- (ii). (EPA uses its own label-"unclassifiable/attainment"- for areas that are "attainment" or "likely attainment." 81 Fed. Reg. 45, 039, 45, 041/3 n.3 (July 12, 2016). But as there is no practical difference between "attainment" and "unclassifiable/attainment," we use the simpler, congressionally created category throughout this opinion.)

         Issuance of a new NAAQS also triggers a state duty to adopt plans for implementing, maintaining, and enforcing that air quality standard. Id. § 7410(a). These state implementation plans, or SIPs, provide a blueprint for imposing controls on pollution sources. Id. §§ 7502(c), 7503(a). For areas that EPA designates as "attainment" or "unclassifiable," SIPs must "prevent significant deterioration of air quality." Id. § 7471. For areas that EPA designates as "nonattainment," SIPs must go further, and strive for attainment of the air quality standard "as expeditiously as practicable . . . ." Id. § 7502(a)(2)(A), (c).

         On June 22, 2010, EPA issued a new standard for sulfur dioxide, or SO2. 75 Fed. Reg. 35, 520 (June 22, 2010). The new SO2 NAAQS imposed a ceiling of 75 parts per billion, based on the three-year average of the annual 99th percentile of 1-hour daily maximum concentrations. Id. at 35, 520/1. Having issued one round of area designations in 2013, EPA issued a second round in 2016, designating 61 areas in 24 states. 81 Fed. Reg. at 45, 040/3.

         Each of the three petitioners now before us challenges one of those 61 designations. Petitioner Kansas City Board of Public Utilities challenges EPA's designation of Wyandotte County, Kansas; petitioner Sierra Club objects to EPA's designation of Gallia County, Ohio; and petitioners Samuel Masias et al. take issue with EPA's designation of Colorado Springs, Colorado. (The areas at issue do not map exactly onto the legally designated boundaries of the political entities, see id. at 45, 046, 45, 049, 45, 053, but we use the simplifying labels applied by the parties.)

         In reviewing these challenges, "we apply the same standard of review . . . as we do under the Administrative Procedure Act," Nat'l Envtl. Dev. Association's Clean Air Project v. EPA, 891 F.3d 1041, 1047 (D.C. Cir. 2018) (quoting Allied Local & Regional Mfrs. Caucus v. EPA, 215 F.3d 61, 68 (D.C. Cir. 2000)), "and we will affirm EPA's action 'if the record shows EPA considered all relevant factors and articulated a rational connection between the facts found and the choice made, '" Nat'l Biodiesel Bd. v. EPA, 843 F.3d 1010, 1018 (D.C. Cir. 2016) (internal quotation marks omitted) (quoting Catawba Cnty. v. EPA, 571 F.3d 20, 41 (D.C. Cir. 2009)).

         For the reasons below, we dismiss the Board's petition for lack of standing and deny Sierra Club's and Masias's petitions on the merits. We take the Board's petition first, then those of Sierra Club and Masias.

         For a power plant operator, the Board's claim is unusual. We typically hear that EPA improperly designated an area as "nonattainment" and thus subjected a regulated party to costly (or more costly) pollution controls. In such cases, standing is "clear" and usually "uncontested." See, e.g., Treasure State Res. Indus. Ass'n v. EPA, 805 F.3d 300, 303 (D.C. Cir. 2015).

         Not so here. Because EPA designated Wyandotte County as "unclassifiable," the Board does not-and cannot-claim that it was subjected to regulatory burdens beyond those applicable under the Board's preferred designation- "attainment." The statute requires that SIPs for areas designated attainment or unclassifiable alike include measures to "prevent significant deterioration of air quality." 42 U.S.C. § 7471. That's all. Thus the statutory burdens (and the regulatory ones, see, e.g., 40 C.F.R. § 52.21(a)(2)(i)) are the same, and the Board cannot point to a heavier regulatory burden resulting from EPA's failure to make what the Board claims is the legally correct choice. Catawba Cnty. v. EPA, No. 05-1064, slip op. at 2 (D.C. Cir. July 7, 2009) (unpublished); see also, e.g., Miss. Comm'n on Envtl. Quality v. EPA, 790 F.3d 138, 145 (D.C. Cir. 2015); BP Cherry Point, 12 E.A.D. 209, 230 n.51 (EAB 2005). In these circumstances, the Board appears to meet no part of the familiar threefold standing requirement- that it has suffered a concrete and particularized ...