July 17, 2009


Posted on July 17, 2009 by David Flannery

On July 7, 2009, the United States Court of Appeals for the D.C. Circuit rendered its decisions in the PM2.5 Designations Litigation, Catawba County, NC v. EPA, No. 05-1064 and consolidated cases (D.C. Cir. July 7, 2009). Applying the standard of review set forth in Section 307(d)(9) of the Clean Air Act, which “requires the Court to set aside EPA’s final actions when they are excess of the agency’s statutory authority or otherwise arbitrary and capricious,” the Court denied all of the petitions for review except Rockland County, New York and remanded the designation of Rockland County to EPA for a “coherent explanation of its designation”. Slip op. at 3, 9, 53-56. 

Overall, the Court complimented EPA on its handling of “the complex task of identifying those geographic areas that contribute to fine particulate matter pollution”. Id. The Court concluded “EPA both complied with the statute and, for all but one of the 225 counties or partial counties it designated as nonattainment, satisfied – indeed, quite often surpassed – its basic obligation of reasoned decisionmaking.” Id.(emphasis added).

The Court rendered two decisions: a published per curiam opinion and an unpublished memorandum attached to the judgment. In the per curiam opinion, the Court explains its holdings rejecting the following general challenges to the designations: (1) EPA violated the Administrative Procedure Act (APA) by failing to publish both the Designations Rule and the Holmstead Memo for notice and comment; (2) EPA violated the section of the Clean Air Act governing designations, § 107(d), by applying the C/MSA presumption and nine-factor test to identify areas that contribute to nearby PM2.5 violations; (3) EPA’s analysis contained such serious “methodological deficiencies and inconsistencies,” including the carbon error, as to render the entire Designations Rule arbitrary and capricious; and (4) EPA acted arbitrarily and capriciously in making particular designations.  Id. at 10. The court in its opinion discusses in detail the New York county designations, rejects the petition as to all of the New York counties except Rockland County, and dismisses all of the other county-specific challenges in one paragraph concluding that “none of them has merit” Id. at 55. The memorandum, which will not be published pursuant to D.C. Circuit Rule 36, sets forth the Court’s rationale for rejecting the other county-specific challenges: Oakland County, Michigan; Anderson, Greenville, and Spartanburg Counties, South Carolina; Catawba County, North Carolina; Guilford County, North Carolina; Catoosa County, Georgia; Porter County, Indiana; Randolph County, Illinois; and the Ohio Townships.

On its own motion, the Court ordered the Clerk to withhold issuance of the mandate until after issuance of any timely petition for rehearing or petition for rehearing en banc. However, “any party may move for expedited issuance of the mandate for good cause shown.” Under Rule 40 of the Federal Rules of Civil Procedure, any petition for panel rehearing is due within 14 days after entry of judgment. The judgment was filed July 7, 2009. 

Among the highlights of the decision are the following:

  1. Speciation data is useful for the area designation process. It reveals the kinds of particles (carbon, sulfate, nitrate, crustal particles, etc.) that account for an area’s PM2.5 problem and suggests, by extrapolation, the kinds of sources most responsible for the problem. Id. at 11. 
  2. No petitioner challenged EPA’s decision that a county boundary would determine the extent of an area reflected by a violating PM2.5 monitor. Id. at 13. 
  3. The Court upheld the C/MSA presumption to identify those areas that, although deemed to be meeting the standard themselves, are contributing to nearby violations.
  4. Weighted emissions scores (WESs) only provide a measure for comparing counties within the same C/MSA. “Importantly, because these scores scale a county’s raw emissions based on attributes specific to individual C/MSA – i.e., the urban excess number and total level of metropolitan emissions – [WESs] only provide a measure for comparing counties within the same C/MSA.”   Id. at 15.
  5. PM2.5 designations are exempt from notice-and-comment rulemaking. Id. at 15-18.
  6. The mandate in § 107(d)(4) that EPA apply the C/MSA presumption in ozone and carbon monoxide designations, while the section pertaining to PM2.5 designations says nothing about the C/MSA presumption and instead provides that PM2.5 designations must be “based on air quality monitoring data,” does not prove that Congress intended to preclude EPA from using the C/MSA presumption in PM2.5 designations. Id. at 22-24.
  7. The word “contribute” in § 107(d)(1)(A)(i) is ambiguous. “Contribute” does not necessarily connote a significant causal relationship. EPA may not designate a county as contributing to nonattainment even if “corrective measures in [the county] will do nothing to address the problem or help achieve compliance in the nonattainment area.” Id. at 29. A contribution may simply exacerbate a problem rather than cause it. Id. 
  8. EPA “is free to adopt a totality-of-the-circumstances test to implement a statute that confers broad discretionary authority, even if that test lacks a definite ‘threshold’ or ‘clear line of demarcation to define an open-ended term’.” Id. (citations omitted). To be reasonable such an “all-things-considered standard” must simply define and explain the criteria the agency is applying. The Holmstead Memo and the Technical Support Document satisfied this test “in spades”.  Id. at 30-31.
  9. EPA does not owe to the states “substantive deference”. EPA has “no obligation to give any quantum of deference to a designation that ‘it deems necessary’ to change.” Id. at 32. 
  10. EPA did not err in refusing to consider emissions reductions from CAIR and the NOx SIP Call. With respect to CAIR, there was no “assurance” when EPA promulgated its PM2.5 designations in December 2004 as to “which power plants would reduce SO2 and NOx emissions and how they would do so,” i.e., installation of controls or trading, “near term,” and the NOx SIP Call “has nothing to do with reducing SO2”. Id. at 37-39. EPA may account for future emissions reductions in contribution designations only when “it is evident that federally enforceable pollution controls will yield significant near-term reductions in emissions.”  Id. at 37.
  11. The carbon error did not render the designations arbitrary and capricious because EPA “used the best available information”. Id. at 39. “EPA was not obligated to upend the designation process when it discovered a mistake in its speciation profile for certain power plants. EPA used the best information available in making its designations, and that is all our precedent requires.” Id. at 41.

Tags: Water


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