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State v. EPA

United States Court of Appeals for the District of Columbia Circuit

October 3, 2018, Argued; September 13, 2019, Decided

No. 16-1406 Consolidated with 16-1428, 16-1429, 16-1432, 16-1436, 16-1437, 16-1438, 16-1439, 16-1440, 16-1441, 16-1442, 16-1443, 16-1444, 16-1445, 16-1448, 17-1066

Opinion

 [*309]  Per Curiam: When upwind States pollute, downwind States can suffer the consequences. Congress addressed that problem in the Clean Air Act by enacting a "Good Neighbor Provision." The Provision requires upwind States to eliminate their significant contributions to air quality problems in downwind States.

In 2016, the Environmental Protection Agency implemented that requirement by promulgating a regulation addressing the interstate transport of ozone, or smog. A number of parties brought challenges to the Rule, some contending that the Rule is too strict and others contending that it is too lenient.

We conclude that, in one respect, the Rule is inconsistent with the Act: it allows upwind States to continue their significant contributions to downwind air quality problems beyond the statutory deadlines by which downwind States must demonstrate their attainment of air quality standards. In all other respects, though, we determine that EPA acted lawfully and rationally.

] The Clean Air Act tasks EPA with setting national ambient air quality standards, or NAAQS. See 42 U.S.C. § 7409(a). Individual States must [**6]  ensure that their ambient air quality complies with the national standard. To that end, the Clean Air Act requires States to adopt State implementation plans, or SIPs, that provide for implementation, maintenance and enforcement of the national standard. Id. § 7410(a)(1). If a State fails to submit a SIP, or if EPA disapproves it, EPA must issue a federal implementation plan, or FIP, to correct any deficiency. Id. § 7410(c)(1).

State-level regulation of air quality faces a confounding variable. Air pollution, once emitted, drifts with the wind. Upwind pollutants affect air quality in downwind States via various chemical processes. Ozone, for example, forms from the interaction of nitrogen oxides (NOx) and volatile organic compounds (VOCs) in the presence of sunlight. For downwind States, upwind emissions of these ozone precursors can pose a significant problem. According to a study referenced by EPA, on average, over three-quarters of the ground-level ozone in downwind States comes from upwind emissions. 81 Fed. Reg. at 74,514.

Congress included a Good Neighbor Provision in the Clean Air Act to address the problem of upwind States' pollution impairing downwind States' air quality.  [*310]  The Provision prohibits States from "emitting any [**7]  air pollutant in amounts" that will "contribute significantly to nonattainment" or "interfere with maintenance" of air quality in other States. 42 U.S.C. § 7410(a)(2)(D)(i).

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938 F.3d 303 *; 2019 U.S. App. LEXIS 27632 **; 49 ELR 20149; 2019 WL 4383259

STATE OF WISCONSIN, ET AL., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY AND ANDREW WHEELER, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS AMERICAN LUNG ASSOCIATION, ET AL., INTERVENORS

Notice: THIS OPINION IS SUBJECT TO FORMAL REVISION BEFORE PUBLICATION IN THE FEDERAL REPORTER OR U.S. APP. D.C. REPORTS. USERS ARE REQUESTED TO NOTIFY THE CLERK OF ANY FORMAL ERRORS IN ORDER THAT CORRECTIONS MAY BE MADE BEFORE THE BOUND VOLUMES GO TO PRESS.

Prior History:  [**1] On Petitions for Review of Final Action of the United States Environmental Protection Agency.

Wisconsin v. EPA, 2017 U.S. App. LEXIS 23077 (D.C. Cir., Oct. 13, 2017)

CORE TERMS

emissions, downwind, upwind, deadline, good neighbor, attainment, ozone, receptors, nonattainment, reductions, Update, projected, significant contribution, air quality, pollution, Environmental, allowances, contributions, obligations, monitored, Air, overcontrol, modeling, ton, budgets, promulgate, linked, ppb, cells, concentrations

Business & Corporate Compliance, Environmental Law, Air Quality, National Ambient Air Quality Standards, Environmental Law, Federal Versus State Law, State Implementation Plans, Administrative Law, Judicial Review, Standards of Review, Enforcement, Administrative Proceedings, Nonattainment Areas, Enforcement, Standards of Review, Deference to Agency Statutory Interpretation, Governments, Legislation, Interpretation, Exceeding Statutory Authority, Agency Adjudication, Agency Rulemaking, Civil Actions, Reviewability, Exhaustion of Remedies, Administrative Proceedings & Litigation, Administrative Proceedings & Litigation, Judicial Review, Remedies