Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Murray Energy Corp. v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

August 23, 2019

Murray Energy Corporation, Petitioner
v.
Environmental Protection Agency, Respondent American Lung Association, et al., Intervenors

          Argued December 18, 2018

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

          Seth L. Johnson argued the cause for Public Health and Environmental Petitioners. With him on the briefs were Joshua Stebbins, Joshua Berman, David S. Baron, and Paul Cort.

          Dominic E. Draye, Deputy Solicitor General, Office of the Attorney General for the State of Arizona, argued the cause for State Petitioners. With him on the briefs were Mark Brnovich, Attorney General, John R. Lopez, IV, Solicitor General, Keith Miller, Associate Solicitor, Joshua L. Kaul, Attorney General, Office of the Attorney General for the State of Wisconsin, Misha Tseytlin, Solicitor General, Daniel P. Lennington, Assistant Attorney General, Leslie C. Rutledge, Attorney General, Office of the Attorney General for the State of Arkansas, Lee Rudofsky, Solicitor General, Jamie L. Ewing, Assistant Attorney General, Jeff Landry, Attorney General, Office of the Attorney General for the State of Louisiana, Steven B. “Beaux” Jones, Assistant Attorney General, Wayne Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, Margaret I. Olson, Assistant Attorney General, Peter S. Glaser, Carroll W. “Mack” McGuffey, Andy Beshear, Attorney General, Office of the Attorney General for the Commonwealth of Kentucky, Joseph A. Newberg, II, Assistant Attorney General, Lara Katz, Assistant Attorney General, Office of the Attorney General for the State of New Mexico, Ken Paxton, Attorney General, Office of the Attorney General for the State of Texas, Priscilla M. Hubenak, Chief, Craig J. Pritzlaff, Assistant Attorney General, E. Scott Pruitt, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Oklahoma, P. Clayton Eubanks, Deputy Solicitor General, and Sean Reyes, Attorney General, Office of the State of Utah. Mithun Mansinghani, Attorney, Office of the Attorney General for the State of Oklahoma, Lisa M. Mitchell, Assistant Attorney General, Office of the Attorney General for the State of Texas, Oramel H. Skinner, III, Solicitor, Office of the Attorney General for the State of Arizona, Sarah Adkins and Samuel R. Flynn, Assistant Attorneys General, and Gregory T. Dutton, Counsel, Office of the Attorney General for the Commonwealth of Kentucky, Steven C. Kilpatrick, Assistant Attorney General, Office of the Attorney General for the State of Wisconsin, Elizabeth B. Murrill and Harry J. Vorhoff, Assistant Attorneys General, Office of the Attorney General for the State of Louisiana, entered appearances.

          James R. Bieke argued the cause for Industry Petitioners. With him on the briefs were Roger R. Martella, Joel F. Visser, Scott C. Oostdyk, E. Duncan Getchell, Jr., Michael H. Brady, Thomas A. Lorenzen, Robert J. Meyers, Linda E. Kelly, Quentin Riegel, Leland P. Frost, Michael B. Schon, Elizabeth L. Horner, Lucinda Minton Langworthy, Aaron M. Flynn, Steven P. Lehotsky, Sheldon B. Gilbert, Stacy Linden, and Richard S. Moskowitz. Peter C. Tolsdorf entered an appearance.

          Hope M. Babcock and Sarah J. Fox were on the brief for amici curiae American Thoracic Society, et al. in support of petitioners Sierra Club, et al.

          Thomas J. Ward was on the brief for amicus curiae The National Association of Home Builders in support of Industry and State Petitioners.

          Justin Heminger and Simi Bhat, Trial Attorneys, U.S. Department of Justice, argued the causes for respondent. With them on the brief were John C. Cruden, Assistant Attorney General at the time the brief was filed, and David Orlin, Steven Silverman, and Brian Doster, Attorneys, U.S. Environmental Protection Agency. Jon M. Lipshultz, Attorney, U.S. Department of Justice, entered an appearance.

          James R. Bieke argued the cause for Industry Respondent-Intervenors. With him on the brief were Roger R. Martella, Joel F. Visser, Lucinda Minton Langworthy, Aaron M. Flynn, Thomas A. Lorenzen, Robert J. Meyers, Stacy Linden, Richard S. Moskowitz, Steven P. Lehotsky, Sheldon B. Gilbert, Linda E. Kelly, Quentin Riegel, Leland P. Frost, Michael B. Schon, Elizabeth Horner, and Leslie A. Hulse. Peter C. Tolsdorf entered an appearance.

          Seth L. Johnson argued the cause for Health and Environmental Respondent-Intervenors. With him on the brief was David S. Baron. Joshua A. Berman and Joshua R. Stebbins entered appearances.

          Jonathan Weiner, Deputy Attorney General, Office of the Attorney General for the State of California, argued the cause for State Amici in support of respondent. With him on the brief were Kamala D. Harris, Attorney General at the time the brief was filed, Robert W. Byrne, Senior Assistant Attorney General, and Gavin G. McCabe, Supervising Deputy Attorney General. Melinda Pilling, Attorney, entered an appearance.

          Richard L. Revesz, Denise A. Grab, Jack Lienke, Michael A. Livermore, and Jason A. Schwartz were on the brief for amicus curiae The Institute for Policy Integrity at New York University School of Law in support of respondent.

          Before: Griffith, Pillard and Wilkins, Circuit Judges.

          OPINION

          PER CURIAM.

         In this opinion, we consider various challenges to the Environmental Protection Agency's 2015 revisions to the primary and secondary national ambient air quality standards for ozone. For the reasons given below, we deny the petitions, except with respect to the secondary ozone standard, which we remand for reconsideration, and grandfathering provision, which we vacate.

         I. Background

         A. Statutory and Procedural Background

         Congress enacted the modern version of the Clean Air Act (the "Act"), codified at 42 U.S.C. § 7401 et seq., in 1970 to control and reduce contaminants responsible for air pollution with the overarching goal to protect human health and the environment. Pursuant to Title I, EPA must establish, publish, and periodically review primary and secondary national ambient air quality standards ("NAAQS") for air pollutants that "may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7408(a)(1)(A). The primary NAAQS are to be set at levels "the attainment and maintenance of which in the judgment of the Administrator, . . . allowing an adequate margin of safety, are requisite to protect the public health." Id. § 7409(b)(1). The secondary NAAQS "shall specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator, . . . is requisite to protect the public welfare from any known or anticipated adverse effects." Id. § 7409(b)(2). Thus, primary NAAQS protect the public health, while the secondary NAAQS protect the public welfare. "Public health" includes adverse health effects for both the population at large and sensitive populations such as children, older adults, and people with asthma or other lung diseases. The term "public welfare" encompasses a wide variety of effects on soil, plants, wildlife and biota, property damage, aesthetic concerns, and other non-health-related impacts such as hazards to economic values and personal comfort. Id. § 7602(h).

         Pursuant to section 109(d) of the Clean Air Act, EPA must complete a "thorough" review of the NAAQS every five years. Id. § 7409(d)(1). During this review, EPA must revise the criteria and standards or promulgate new standards as appropriate. Id. To assist in this process, the Clean Air Scientific Advisory Committee ("CASAC") undertakes an examination of the current air quality criteria, primary NAAQS, and secondary NAAQS, and submits recommendations to EPA for "any new [NAAQS] and revisions of existing criteria and standards as may be appropriate." Id. § 7409(d)(2)(A)-(B). Congress required EPA to take CASAC's recommendations into account when promulgating revised NAAQS and to fully explain its reasons when it departs from CASAC's advice. However, the ultimate decision to revise the NAAQS-and the determination of the new level-rests with the Administrator. Id. § 7407(d)(3).

         These petitions concern EPA's promulgation of revised NAAQS related to ozone. Ozone is a colorless gas that occurs both in the Earth's upper atmosphere and at ground level. Although ozone is an "essential presence in the atmosphere's stratospheric layer," ground-level ozone is an air pollutant that is harmful to breathe and damages crops, trees, and other vegetation. S. Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 887 (D.C. Cir. 2006); see Allied Local & Reg'l Mfrs. Caucus v. EPA, 215 F.3d 61, 66 (D.C. Cir. 2000). Ground-level ozone is not a direct product of human activity, but instead forms when atmospheric pollutants (including nitrogen oxides and volatile organic compounds) react in the presence of sunlight. See Mississippi v. EPA, 744 F.3d 1334, 1340 (D.C. Cir. 2013). These precursor atmospheric pollutants are created primarily from emissions produced by cars, power plants, and chemical solvents. NRDC v. EPA, 777 F.3d 456, 459 (D.C. Cir. 2014).

         In 1979, EPA issued primary and secondary NAAQS for ozone with a limit of 0.12 parts per millions (ppm), and a one-hour averaging time. See id. This "one-hour standard" measured average ozone levels over one-hour periods, and EPA would deem an area in compliance with this standard if it did not exceed the level for more than one day per calendar year. Id. EPA next revised the ozone NAAQS in 1997, having determined that no revisions to the standards were necessary in 1993. National Ambient Air Quality Standards for Ozone, 58 Fed. Reg. 13, 008 (Mar. 9, 1993). The agency replaced the one-hour, 0.12 ppm standard with a 0.08 ppm standard measured over eight hours. National Ambient Air Quality Standards for Ozone, 62 Fed. Reg. 38, 856 (July 18, 1997). EPA also altered the form of compliance to the annual fourth-highest daily maximum 8-hour concentration, averaged over three years. Id.

         In 2008, EPA lowered the primary and secondary standards to 0.075 ppm but kept the same eight-hour averaging time and form as in 1997. NRDC, 777 F.3d at 462-63; National Ambient Air Quality Standards for Ozone, 73 Fed. Reg. 16, 436 (Mar. 27, 2008). In developing the 2008 standards, EPA relied on scientific evidence showing that ozone causes health effects at and above 0.08 ppm and examined two new clinical studies that found negative health effects from ozone at lower levels. See Mississippi, 744 F.3d at 1340. While CASAC reviewed this same evidence and recommended a primary level between 0.06 ppm and 0.07 ppm, EPA departed from this advice and explained that the scientific data regarding negative health effects at 0.06 ppm was too limited and inconclusive to support a standard below 0.075 ppm. See id. at 1340-41. We upheld EPA's primary standard on this basis but found that EPA had not adequately explained its revision of the secondary standard. Id. at 1359-62. We noted that EPA had not properly determined what level of air quality was requisite to protect the public welfare. Id. Accordingly, we remanded for further explanation and reconsideration of the secondary level.

         Following the promulgation of the 2008 ozone NAAQS, EPA undertook another comprehensive review of the ozone standards and scientific data. EPA consolidated its review on remand of the 2008 secondary standard with its ongoing review for the 2015 ozone NAAQS. After conducting public hearings and receiving approximately 430, 000 written comments on its proposed revision of the primary and secondary ozone NAAQS, EPA published its final 2015 ozone NAAQS on October 26, 2015. National Ambient Air Quality Standards for Ozone ("2015 Rule"), 80 Fed. Reg. 65, 292 (Oct. 26, 2015). For both the primary and secondary standards, EPA lowered the level from 0.075 ppm to 0.07 ppm, while retaining the 2008 indicator (ozone), averaging time (8 hours), and form (three-year average of the fourth-highest daily maximum 8-hour concentration). See id. at 65, 294, 65, 301, 65, 347, 65, 349-50, 65, 352.

         Based on scientific data and CASAC's recommendation, the Administrator concluded that the 2008 primary ozone standard (0.075 ppm) was not at a level requisite to protect public health while allowing an adequate margin of safety. Id. at 65, 326, 65, 344, 65, 346. The Administrator placed significant weight on new clinical studies linking short-term ozone exposure with respiratory effects, including lung inflammation. See id. at 65, 302-03, 65, 341, 65, 352, 65, 359. EPA conducted its own exposure study and found that a revised primary NAAQS standard of 0.07 ppm would "eliminate the occurrence of two or more exposures of concern to [ozone] concentrations at and above [0.08 ppm]" and would "virtually eliminate the occurrence of two or more exposures of concern to [ozone] concentrations at and above [0.07 ppm], even in the worst-case urban study area and year evaluated." Id. at 65, 353. The Administrator additionally found that a level of 0.07 ppm would "protect the large majority of children in the urban study areas (i.e., about 96% to more than 99% of children in individual urban study areas) from experiencing two or more exposures of concern at or above the [0.06 ppm] benchmark." Id. at 65, 353, 65, 360-64. EPA also evaluated hundreds of epidemiologic studies that provided statistically relevant information about a broader population of individuals who are exposed to uncontrolled air pollution. See id. at 65, 304, 65, 364.

         Further, the Administrator considered CASAC's advice on the new primary ozone standard. See id. at 65, 346, 65, 361. In advance of the 2015 Rule, CASAC stated that "there is clear scientific support for the need to revise the standard" in place since 2008 and recommended setting the standard within a range of 0.06 ppm to 0.07 ppm, while leaving the form, averaging time, and indicator unchanged. Id. at 65, 322, 65, 361.

         EPA also assessed the secondary standard and concluded that the 2008 secondary standard (0.075 ppm) was not requisite to protect public welfare. Id. at 65, 382, 65, 389-90. Rather, EPA set the secondary standard at 0.07 ppm and kept the indicator, averaging time, and form the same. Id. at 65, 369, 65, 403, 65, 409-10. EPA noted that more than four hundred new studies examining the interplay between ozone and public welfare had been developed since the promulgation of the 2008 ozone NAAQS. Id. at 65, 369. These studies strengthened and expanded the scientific understanding of ozone's effects on plants. The Administrator analyzed the causal relationship between ozone exposure and vegetation effects, examining tree growth impacts, crop yield loss, and visible leaf injury. Id. at 65, 370; see id. at 65, 294, 65, 369-70. The Administrator gave "primary consideration" to tree growth impacts, judging that it was more difficult to assess the welfare significance of crop yield loss (given that crops are heavily managed) and visible leaf injury (citing the "lack of established criteria or objectives"). Id. at 65, 407.

          In setting the secondary standard, EPA departed from CASAC's recommendations as to the form and standard of the secondary ozone NAAQS. CASAC recommended using a single-year averaging approach, but EPA opted for a three-year average because "the public welfare significance of effects associated with multiple years of critical exposures are potentially greater than those associated with a single year of such exposure." Id. at 65, 404. The Administrator also rejected CASAC's recommendation to use the W126 exposure index, a cumulative, seasonal ozone exposure metric, as the form of the secondary standard, rather than the same form as the primary standard (three-year average of the fourth-highest daily level), finding that the latter form was adequate to restrict cumulative ozone exposures that are detrimental to vegetation. Id. at 65, 408.

         In addition to revising the ozone standards, the 2015 NAAQS also updated the regulations for the Prevention of Significant Deterioration ("PSD") permitting program. See id. at 65, 431-34. Under the PSD program, no construction on a major emitting facility may be commenced in an area that has attained the air quality standards for any criteria pollutant unless "the owner or operator of such facility demonstrates . . . that emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any . . . [NAAQS]." 42 U.S.C. § 7475(a)(3)(B). The permitting authority (either a state or EPA) must grant or deny a completed preconstruction permit application under the PSD program within one year of filing. Id. § 7475(c).

         EPA claimed that sections 7475(a)(3)(B) and 7475(c) have the "potential for conflict," which it was authorized under Chevron to resolve. EPA Br. 132; see also 80 Fed. Reg. at 65, 433-34. EPA worried that, for a limited subset of pending permit applications, complying with section 7475(a)(3)(B)'s demonstration requirement for the 2015 NAAQS "could hinder compliance with the requirement under section [7475](c) to issue a permit within one year of the completeness determination." 80 Fed. Reg. at 65, 434. In other words, EPA was unsure how to handle completed permit applications where sources would have complied with the NAAQS in existence at the time the application was filed (the 2008 ozone standards), but where the NAAQS were revised before the permit was approved. See id. at 65, 433. EPA resolved this apparent conflict by implementing a grandfathering provision for pending permit applications that satisfy one of two permitting criteria. See id. at 65, 431-34. These two applicable categories include: (1) permit applications that are deemed complete on or before the signature date of the final rule revising the ozone NAAQS; and (2) permit applications "for which the reviewing authority has first published a public notice of the draft permit or preliminary determination before the effective date of the revised NAAQS." Id. at 65, 431, 65, 433. If a permit application satisfies either requirement, the owner or operator must show compliance with the 2008 rather than the 2015 NAAQS before initiating construction.

         Petitioners from the oil and gas industry ("Industry Petitioners") and from several states ("State Petitioners") claim that the primary and secondary NAAQS are too protective. Conversely, petitioners from public health and environmental groups ("Environmental Petitioners") claim that these NAAQS are not protective enough. Environmental Petitioners also contend that EPA's decision to allow limited grandfathering of certain permit applications was inconsistent with the Clean Air Act.

         This opinion proceeds in five parts. Part II considers the challenges to the primary standard, and Part III the challenges to the secondary standard. Part IV reviews the cross-cutting challenges to EPA's promulgation of the NAAQS, and Part V addresses the challenge to the grandfathering provision.

         B. Jurisdiction and Standard of Review

         This court has jurisdiction to review EPA's 2015 Rule pursuant to 42 U.S.C. § 7607(b)(1). Under section 7607, agency action may be reversed if it is arbitrary, capricious, an abuse of discretion, not in accordance with law, or in excess of statutory authority. Id. § 7607(d)(9)(A), (C); see Am. Petroleum Inst. v. EPA, 684 F.3d 1342, 1347 (D.C. Cir. 2012). To withstand review, an agency must have examined all relevant facts and data, and articulated a rational explanation for its decision, including a reasonable connection between the facts and ultimate outcome. See Allied Local, 215 F.3d at 68. We cannot look at EPA's decision as would a scientist, but instead must exercise our "narrowly defined duty of holding agencies to certain minimal standards of rationality." Mississippi, 744 F.3d at 1342 (quoting Nat'l Envtl. Dev. Ass'n's Clean Air Project v. EPA, 686 F.3d 803, 810 (D.C. Cir. 2012)); see id. at 1348 ("We repeat: it is not our job to referee battles among experts; ours is only to evaluate the rationality of EPA's decision . . . .").

         On questions of statutory interpretation, the court must review EPA's actions in accordance with the standard set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984). See Michigan v. EPA, 135 S.Ct. 2699, 2706-07 (2015); NRDC, 777 F.3d at 463. Chevron deference involves a two-step analysis. First, if a statute is clear, the court must give effect to Congress's unambiguous language and intent. Chevron, 467 U.S. at 842-43. Where a statute that an agency administers is ambiguous, the court must turn to the second Chevron principle and give deference to the agency's reasonable interpretation of the statute. Id. at 843; see also S. Coast Air Quality Mgmt. Dist., 472 F.3d at 891.

         II. Primary Standard Challenges

         Industry and State Petitioners contend that EPA's promulgation of the 2015 Rule's primary standard was arbitrary and capricious because, they say, EPA failed to provide a reasoned explanation for departing from the 2008 NAAQS. Environmental Petitioners argue that the primary ozone standard is too lenient because it occasionally permits ozone levels to exceed 0.07 ppm and will allegedly tolerate adverse health effects. For the reasons below, we hold that these arguments lack merit.

         A. Industry and State Petitioners' Challenge

         The Clean Air Act requires EPA to set primary NAAQS that are "requisite" to protect public health with an adequate margin of safety. 42 U.S.C. § 7409(b)(1). The term "requisite" means "sufficient, but not more than necessary." See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 473 (2001). While the determination of what is "requisite" may require a contextual assessment of acceptable risk, our precedent is clear that prior NAAQS are not sacrosanct and are not granted presumptive validity. See Mississippi, 744 F.3d at 1343. Prior NAAQS need not remain the governing standard until every aspect of those prior NAAQS is undermined. Id. To hold otherwise "would bind EPA to potential deficiencies in past reviews because discrepancies between past and current judgments as easily reflect problems in the past as in the present." Id. Thus, when EPA reviews and revises the NAAQS, it does so against current policy considerations and existing scientific knowledge. Id. Accordingly, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.