Environmental Defense v. Environmental Protection Agency (489 F.3d 1320, 2007)

Opinion for the court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge ROGERS.

KAREN LECRAFT HENDERSON, Circuit Judge.

As part of the Clean Air Act (CAA), the Congress created a program entitled “Prevention of Significant Deterioration of Air Quality” (PSD), which is designed to protect air quality in national parks and similar scenic and recreational areas. 42 U.S.C. ch. 85, subch. I, pt. C (CAA §§ 160-169b, 42 U.S.C. §§ 7470-92). In 1988 the Environmental Protection Agency (EPA) promulgated regulations to implement the PSD program for nitrogen oxides (NOx). Prevention of Significant Deterioration for Nitrogen Oxides, 53 Fed.Reg. 40,656 (October 17, 1988) (1988 Rule). In 1990, the court reviewed the 1988 Rule and remanded the regulations to EPA. Envtl. Def. Fund, Inc. v. EPA 898 F.2d 183 (D.C.Cir.1990). EPA issued a new final rule in 2005. Prevention of Significant Deterioration for Nitrogen Oxides, 70 Fed.Reg. 59,582 (Oct. 12, 2005) (codified at 40 C.F.R. §§ 51.166, 52.21) (2005 Rule). Petitioner Environmental Defense seeks review of the 2005 Rule. Because EPA followed our directives in Environmental Defense Fund and its regulations reflect a reasonable interpretation of the applicable CAA PSD provisions, we deny the petition for review.

I.

The CAA requires that EPA promulgate a primary and a secondary National Ambient Air Quality Standard (NAAQS) for each air pollutant for which EPA has issued “air quality criteria” pursuant to CAA section 108, 42 U.S.C. § 7408. 42 U.S.C. § 7409(a); see generally Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 462, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). After the NAAQS is established for a particular pollutant, each state must submit to EPA a list of all areas in the state, designating each area as “attainment” (i.e., it meets the NAAQS); “nonattainment” (i.e., it does not meet the NAAQS) or “unclassifiable” (i.e., it “cannot be classified on the basis of available information as meeting or not meeting the [NAAQS]”). 42 U.S.C. § 7407. The state must then develop and submit to EPA a “State Implementation Plan” (SIP) which “provides for implementation, maintenance, and enforcement of [the NAAQs].” Id. § 7410(a)(1).

In 1977, the Congress amended the CAA to add the PSD provisions in order to “protect the air quality in national parks and similar areas of special scenic or recreational value, and in areas where pollution was within the national ambient standards, while assuring economic growth consistent with such protection.” Envtl. Def. Fund, 898 F.2d at 184 (citing CAA § 160, 42 U.S.C. § 7470). The PSD provisions require that each applicable SIP “shall contain emission limitations and such other measures as may be necessary, as determined under regulations promulgated under this part, to prevent significant deterioration of air quality in each region (or portion thereof) designated pursuant to section 7407 of [title 42] as attainment or unclassifiable.” 42 U.S.C. § 7471. The PSD establishes three classes of subject attainment or unclassifiable areas:

Class I — comprising mainly large national parks and national wilderness areas; Class II — regions where the ambient air quality levels more than meet the national standards; and Class Ill-regions meeting the definition of Class I or Class II areas but redesignated at the behest of a state for higher levels of industrial development.

Envtl. Def. Fund, 898 F.2d at 185 (citing CAA §§ 162, 164, 42 U.S.C. §§ 7472, 7474). For each of the three Classes, the Congress required that EPA establish numerical emission limits for specific pollutants.

For “Set I” pollutants — i.e., sulfur oxide and particulate matter — CAA § 163 establishes for each Class “maximum allowable increases” — called “increments” and expressed in micrograms per cubic meter (