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Sierra Club v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

May 31, 2019

Sierra Club, Petitioner
v.
Environmental Protection Agency and Andrew Wheeler, Administrator, U.S. Environmental Protection Agency, Respondents

          Argued December 10, 2018

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

          Tosh 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.

          OPINION

          Williams, Senior Circuit Judge.

         To 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 Significant Deterioration.

         Sierra 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.

         For the 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 the third.

         The 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.

         First, 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.

         To make 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).

         We now turn to Sierra Club's three challenges to EPA's recent revisions to its monitoring regulations.

         First 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.

         But no 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 ...


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