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Sierra Club v. United States Environmental Protection Agency

United States Court of Appeals, Sixth Circuit

March 18, 2015

SIERRA CLUB, Petitioner,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; GINA MCCARTHY, Administrator of the United States Environmental Protection Agency, Respondents, STATE OF OHIO; OHIO UTILITY GROUP, et al., Intervenors

Argued October 9, 2014.

Page 300

[Copyrighted Material Omitted]

Page 301

On Petition for Review of Final Rules of the United States Environmental Protection Agency. No. EPA-R04-OAR-2010-0937.

ARGUED:

Robert Ukeiley, Berea, Kentucky, for Petitioner.

Amy J. Dona, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.

Aaron S. Farmer, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Intervenor State of Ohio.

ON BRIEF:

Robert Ukeiley, Berea, Kentucky, David C. Bender, MCGILLIVRAY WESTERBERG & BENDER LLC, Madison, Wisconsin, for Petitioner.

Amy J. Dona, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.

Aaron S. Farmer, Elizabeth R. Ewing, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Intervenor State of Ohio.

Louis E. Tosi, Michael E. Born, Cheri A. Budzynski, SHUMAKER, LOOP & KENDRICK, LLP, Columbus, Ohio, for Ohio Utility Intervenors.

Before: GIBBONS and KETHLEDGE, Circuit Judges; DOW, District Judge.[*]

OPINION

Page 302

JULIA SMITH GIBBONS, Circuit Judge.

In 2011, the Environmental Protection Agency (" EPA" ) determined that the Cincinnati-Hamilton metropolitan area had attained national air quality standards for particulate matter, thanks in no small part to regional cap-and-trade programs that had reduced the flow of interstate pollution. EPA also redesignated the area to " attainment" status even though the three States that administer its pollution controls had never implemented particular provisions, known as " reasonably available control measures," applicable to nonattainment areas. Sierra Club thought the agency had acted illegally with respect to both actions, and it filed a petition for direct appellate review in this court. The parties dispute both Sierra Club's standing to challenge the agency action and the correct interpretation of the relevant statute, the Clean Air Act.

We find that the Club has standing, and we agree with its claim that " reasonably available control measures" are a prerequisite to redesignation. Therefore, we vacate EPA's redesignation of the Ohio and Indiana portions of the Cincinnati area.

I.

A.

The Clean Air Act (" CAA" ) authorizes EPA to promulgate National Ambient Air Quality Standards (" NAAQS" ) for various types of emissions deemed injurious to public health and welfare. 42 U.S.C. § 7409(a)--(b). Once the agency has promulgated a particular NAAQS, the Governor of each State must submit a " state implementation plan" (" SIP" ) with particular methods for achieving the NAAQS. Id. § 7410. EPA will then designate portions of each State as " attainment areas" (that attain the standard), " nonattainment areas" (that do not), or as " unclassifiable." Id. § 7407(d)(1)(B). If an area is designated as nonattainment, the State or States containing that area must revise their SIPs to meet additional requirements located in Part D of Subchapter 1, Chapter 85 of Title 42. See, e.g., id. § 7502. One such requirement, which we will refer to as " RACM" or " RACT," is that the state SIP " provide for the implementation of all reasonably available control measures [" RACM" ] as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology [" RACT" ]) and shall provide for attainment of the national primary ambient air quality standards." Id. § 7502(c)(1). Another such provision, termed " New Source Review" or " NSR," forces the State to set up a permit regime

Page 303

" for the construction and operation of new or modified major stationary sources anywhere in the nonattainment area, in accordance with section 7503 of [Title 42]." Id. § 7502(c)(5).

When a State asks EPA to redesignate a nonattainment area to attainment status (and thus remove these additional requirements from its SIP), the agency may do so only if five conditions are satisfied:

(i) the Administrator determines that the area has attained the national ambient air quality standard;
(ii) the Administrator has fully approved the applicable implementation plan for the area under ...

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