United States Court of Appeals, District of Columbia Circuit
Argued September 16, 2015
On Petitions for Review of Actions of the United States Environmental Protection Agency.
William W. Mercer argued the cause for petitioner Treasure State Resource Industry Association. Douglas A. McWilliams argued the cause for petitioner United States Steel Corporation. With them on the briefs were John D. Lazzaretti, Emily C. Schilling, Marie Bradshaw Durrant, and Michael P. Manning.
Norman J. Mullen, Special Assistant Attorney General, Office of the Attorney General for the State of Montana, was on the brief for amicus curiae State of Montana in support of remedy of reversal urged by petitioner Treasure State Resource Industry Association in 13-1263 and 14-1164.
Amanda Shafer Berman, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief were John C. Cruden, Assistant Attorney General, and Mike Thrift, Counsel, U.S. Environmental Protection Agency.
Before: GRIFFITH and MILLETT, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Williams, Senior Circuit Judge.
The Clean Air Act, 42 U.S.C. § § 7401-7671q, directs the Environmental Protection Agency to establish air concentration levels above which certain pollutants may endanger public health and welfare, called National Ambient Air Quality Standards (" NAAQS" ), id. § § 7408-7409. On June 22, 2010 EPA exercised this authority to issue a new standard for sulfur dioxide, SO2. 75 Fed.Reg. 35,520/1. The new NAAQS imposes a 1-hour ceiling of 75 parts per billion, based on the 3-year average of the annual 99th percentile of 1-hour daily concentrations. Id. (Because the stringency of the changes derives largely from the ways in which compliance is calculated rather than from the raw concentration numbers, it is almost impossible to give a meaningful statement of the degree by which the standard increased stringency. See Sulfur Dioxide (SO2) Primary Standards -- Table of NAAQS, http://www3.epa.gov/ttn/ naaqs/standards/so2/s_so2_history.html. )
States were then to develop state implementation plans (" SIPs" ) to guide them in imposing requirements on pollution sources in order to implement the NAAQS. 42 U.S.C. § § 7502(c), 7503(a).
Within two years after a new NAAQS is established (extendable as in this case to three for want of adequate data), id. § 7407(d)(1)(B)(i), EPA must designate all parts of the country as being in " attainment," in " nonattainment," or " unclassifiable" with respect to the air quality standards, id. § 7407(d)(1)(A). " Nonattainment" areas either fail to satisfy the NAAQS themselves or contribute to pollution in another area that does not satisfy the NAAQS. " Attainment" areas both satisfy the NAAQS and do not contribute to nonattainment status for another area. In " unclassifiable" areas, EPA lacks adequate information to make a determination either way. Id. § 7407(d)(1)(A)(i)-(iii).
On August 5, 2013 EPA designated 29 areas as not meeting its new SO2 standards. Air Quality Designations for the 2010 Sulfur Dioxide (SO2) Primary National Ambient Air Quality Standard, 78 Fed.Reg. 47,191/3 (" Final Rule" ). Each of the two petitioners now before us, Treasure State Resource Industry Association and United States Steel Corporation, challenges one of these 29 designations: the Association attacks the one for part of Yellowstone County, Montana, and U.S. Steel challenges the one for part of Wayne County, Michigan. Each sought reconsideration by EPA, unsuccessfully. 79 Fed.Reg. 18,248/3 (Apr. 1, 2014); 79 Fed.Reg. 50,577/3 (Aug. 25, 2014).
We deny the petitions for review. Except insofar as both are attacks on EPA's August 2013 designations with respect to the 2010 SO2 NAAQS, the two claims have virtually nothing in common. We take Montana first, then Michigan.
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The Association is " a trade association comprised of natural resource industries and associations, labor unions, consulting firms and law firms, and recreation organizations located throughout Montana." Petitioners' Br. iii. Its standing is clear and uncontested; its members are located within the nonattainment area and are subject to regulations resulting from the designation. The Association's primary arguments are: (1) that the data on which EPA relied were so unreliable that its reliance was arbitrary and capricious, 42 U.S.C. § 7607(d)(9)(A), and (2) that EPA's application of the Act was retroactive within the meaning of Landgraf v. U.S.I. Film Products, 511 ...