United States Court of Appeals, District of Columbia Circuit
December 10, 2018
Petition for Review of Final Action of the United States
Environmental Protection Agency
Sagar argued the cause for petitioner. With him on the briefs
were Seth L. Johnson and David S. Baron.
Phillip R. Dupré, Attorney, U.S. Department of
Justice, argued the cause for respondents. With him on the
brief were Jeffrey H. Wood, Acting Assistant Attorney
General, Jonathan D. Brightbill, Deputy Assistant Attorney
General, and Jonathan Skinner-Thompson, Counsel, U.S.
Environmental Protection Agency.
Before: Griffith and Wilkins, Circuit Judges, and Williams,
Senior Circuit Judge.
Williams, Senior Circuit Judge.
implement the Clean Air Act, the Environmental Protection
Agency oversees state procedures for creating and running air
monitoring networks. In 2016, EPA adopted a rule, Revisions
to Ambient Monitoring Quality Assurance and Other
Requirements, 81 Fed. Reg. 17, 248 (Mar. 28, 2016)
("Final Rule"), modifying its regulations on the
subject, specifically Part 58 of Title 40 of the Code of
Federal Regulations. The amendments (1) tightened procedures
for state changes to annual monitoring network plans, (2)
authorized limited reductions in required sampling frequency,
and (3) proposed revisions to certain quality assurance
requirements related to monitoring for Prevention of
Club raises three objections. Resting on EPA's language
in the preamble to the rule, it attacks the divergence
between EPA's procedures for reviewing SIPs and annual
monitoring network plans-a divergence embodied in a 2006 EPA
regulation that has long since passed the deadline for
seeking judicial review. It challenges (on the merits) the
new authority on sampling frequency reductions. And it sees a
fatal procedural defect in the quality assurance adjustments
in the form of EPA's statement-plainly and concededly
mistaken- that no commenter had criticized the changes.
reasons below, however, we find that Sierra Club (1) is
barred from seeking review of the claimed legal requirement
that monitoring plans be assessed under the same procedures
as SIPs because the new rule and EPA's preamble did no
more than echo a prior EPA regulation, (2) lacks standing to
attack the sampling frequency changes, and (3) has made no
showing that the asserted non-response on quality assurance
issues manifested any failure to consider factors relevant to
the changes. Thus we dismiss the first two claims and deny
Clean Air Act, 42 U.S.C. §§ 7401-7671q, establishes
a comprehensive system for regulating and improving the
nation's air quality, divvying up responsibility between
the federal government and the states.
EPA identifies air pollutants that endanger public health or
welfare, and sets National Ambient Air Quality Standards, or
NAAQS, that specify the maximum permissible concentration of
those pollutants in the ambient air. 42 U.S.C. §§
7408-09. Then, subject to EPA approval, states adopt State
Implementation Plans, or SIPs, id. §
7410(a)(1), which are to bring areas into attainment with the
NAAQS (if they are not already), see id. §
7502(a)(2)(A), and to "prevent significant deterioration
of air quality," id. § 7471.
performance of these functions possible, EPA
"promulgate[s] regulations establishing an air quality
monitoring system throughout the United States." 42
U.S.C. § 7619(a). Those regulations, among other things,
require states to submit an "annual monitoring network
plan" that documents "the establishment and
maintenance of an air quality surveillance system that
consists of a network of" state or local air monitoring
stations. 40 C.F.R. § 58.10(a)(1).
turn to Sierra Club's three challenges to EPA's
recent revisions to its monitoring regulations.
and foremost, Sierra Club attacks EPA's revised
regulation governing the review and approval of annual
monitoring network plans, 40 C.F.R. § 58.10(a), on the
ground that it violates Sierra Club's reading of the
Clean Air Act. Because the act, in Sierra Club's view,
renders a state's "monitoring network plan . . .
part of a SIP," such plans must be subjected to the
review procedures applicable to SIPs. Sierra Club Br. 24.
later than 2006 EPA's regulations pursued the non-SIP
path. See Revisions to Ambient Air Monitoring Regulations, 71
Fed. Reg. 61, 236 (Oct. 17, 2006). A decade later, Sierra
Club cannot force EPA back up the trail. The Clean Air Act
requires that petitions for review be filed "within
sixty days" of a challenged action appearing in the
Federal Register. 42 U.S.C. § 7607(b)(1). Accordingly
(absent EPA's reopening the issue), Sierra Club's
time for challenging EPA's adoption of a non-SIP approach
to reviewing annual monitoring network plans has passed. And
because the issue is jurisdictional, Sierra Club v.
EPA, 895 F.3d 1, 16 (D.C. Cir. 2018), we must raise it