United States Court of Appeals, District of Columbia Circuit
September 11, 2018
Petitions for Review of an Action of the United States
Environmental Protection Agency
Ukeiley argued the cause and filed the briefs for petitioners
Samuel Masias, et al.
K. Perfetto argued the cause for petitioner Sierra Club. With
her on the briefs were Thomas J. Cmar and Joshua D. Smith.
Lane argued the cause and filed the briefs for petitioner
Kansas City Board of Public Utilities.
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.
WILLIAMS SENIOR CIRCUIT JUDGE.
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.
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
"unclassifiable/attainment," we use the simpler,
congressionally created category throughout this opinion.)
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).
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.
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
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)).
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.
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.
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