Am. Trucking Ass’ns v. Epa - 283 F.3d 355 (D.C. Cir. 2002)

Rule:

In considering claims under § 307(d)(9) (42 U.S.C.S. § 7607(d)(9)) of the Clean Air Act, 42 U.S.C.S. § 7401 et seq., the court applies the same highly deferential standard of review that it uses under 5 U.S.C.S. § 706(2)(A) of the Administrative Procedure Act. Thus, the court presumes the validity of agency action as long as a rational basis for it is presented. That said, however, the court performs a searching and careful inquiry into the underlying facts. The court has elaborated on this standard of review as follows: It is not the court's function to resolve disagreement among the experts or to judge the merits of competing expert views. Its task is the limited one of ascertaining that the choices made by the Environmental Protection Agency Administrator were reasonable and supported by the record. That the evidence in the record may also support other conclusions, even those that are inconsistent with the administrator's, does not prevent the court from concluding that her decisions were rational and supported by the record.

Facts:

The Clean Air Act, 42 U.S.C. §§ 7401-7671q, directs the Environmental Protection Agency to establish and periodically review primary and secondary National Ambient Air Quality Standards ("NAAQS"), id. § 7409, for any pollutant the "emissions of which … cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” The Act calls for the appointment of "an independent scientific review committee," the Clean Air Scientific Advisory Committee ("CASAC"), and tasks this committee with periodically reviewing the NAAQS and advising EPA of any need for new standards or for revisions to existing standards. These consolidated cases concern NAAQS for particulate matter and ozone, two ubiquitous atmospheric pollutants. The term "particulate matter," or "PM," refers to all "solid particles and liquid droplets found in air." In EPA's judgment, ozone is, and PM may be, a nonthreshold pollutant--that is, a pollutant that causes adverse health effects at any non-zero atmospheric concentration. On July 18, 1997, EPA revised the primary and secondary NAAQS for particulate matter and ozone. For particulate matter, the Agency abandoned its approach of regulating both coarse and fine particles and droplets under the same standards. Observing that the "epidemiological evidence suggests stronger associations of mortality and some morbidity effects with fine particles than with … coarse particles,” (“Advance NPRM"), the Agency adopted new, PM2.5-specific standards: an annual primary standard of 15 micrograms per cubic meter ("[mu] g/m <3>"); a daily primary standard of 65 "[mu] g/m <3>"; and secondary standards equal to the primary standards. EPA also made significant changes to the ozone NAAQS. Citing new information that suggests a positive correlation between prolonged (six-to eight-hour) exposures to relatively low levels of ozone and "a wide range of health effects,” the Agency adopted new primary and secondary standards under which eight hour-average ozone concentrations may not exceed 0.08 parts per million ("ppm"), in place of the old, one-hour-average standards of 0.12 ppm. 

Soon after EPA issued the revised particulate matter and ozone NAAQS, various parties, including American Trucking Associations, other businesses and business associations, environmental groups, citizens, and several States, petitioned for review of the revised standards. Petitioners and supporting Intervenors and Amici challenged the NAAQS from all sides, arguing (among other things) that the Clean Air Act delegates excessive legislative authority to EPA in violation of Article I of the Constitution and that the Agency failed to consider certain relevant factors, including implementation costs, prior to setting the NAAQS. Invoking Clean Air Act section 307(d)(9), which directs federal appeals courts to vacate Agency action "found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Petitioners also challenged specific aspects of the new particulate matter and ozone NAAQS ("the 307(d)(9) claims").

Issue:

Should the primary NAAQS be vacated for failing to be set at levels requisite to protect the public health?

Answer:

No.

Conclusion:

In one, Petitioners claim, EPA asserted that it had no obligation to determine a "safe level" of PM2.5 prior to adopting a primary NAAQS. In the other, EPA allegedly acknowledged that "its approach 'might result in regulatory programs that go beyond those that are needed to effectively reduce risks to public health.'" Petitioners' argument suffered from two significant flaws. First, the final PM rule made neither alleged concession. In the first passage, which Petitioners cite as evidence that EPA failed to identify a "safe level" of PM2.5, the Agency merely disclaimed any obligation to set primary NAAQS by means of a two-step process, identifying a "safe level" and then applying an additional margin of safety. Instead, EPA stated, it "may take into account margin of safety considerations throughout the process as long as such considerations are fully explained and supported by the record." Nothing in this statement implied  that EPA failed to determine "safe levels" for fine particulate matter; indeed, the Agency's establishment of new primary NAAQS demonstrates that it did reach a conclusion regarding "safe" daily- and annual-average PM2.5 levels. State and Business Petitioners obviously disagree with that conclusion, but they had no basis for arguing that EPA failed to identify levels of PM2.5 that the Agency considers safe. Viewed in its proper context, EPA's other alleged "concession"--that the new NAAQS "go beyond" what is necessary to protect public health--proved equally chimerical. In the final PM2.5 rule, EPA said only that "a number of ? commenters [to the proposed NAAQS] strongly supported standard levels more stringent than those proposed by" the Agency, but that "setting such [lower] standards … might result in regulatory programs that go beyond those that are needed to effectively reduce risks to public health”. This passage in no way supported Petitioners' argument that EPA failed to set the primary PM2.5 NAAQS at levels "'requisite' … to protect the public health with an adequate margin of safety." Instead, the passage documents EPA's rejection of lower standards, demonstrating that the Agency not only recognized, but acted upon, its statutory obligation to set the primary NAAQS at levels no lower than necessary to reduce public health risks.

Although we recognize that the Clean Air Act and circuit precedent require EPA qualitatively to describe the standard governing its selection of particular NAAQS, we have expressly rejected the notion that the Agency must "establish a measure of the risk to safety it considers adequate to protect public health every time it establishes a [NAAQS]." Such a rule would compel EPA to leave hazardous pollutants unregulated unless and until it completely understands every risk they pose, thus thwarting the Clean Air Act's requirement that the Agency err on the side of caution by setting primary NAAQS that "allow[] an adequate margin of safety[.]" The Act requires EPA to promulgate protective primary NAAQS even where, as here, the pollutant's risks cannot be quantified or "precisely identified as to nature or degree," For its part, American Lung Ass'n requires only that EPA "engage in reasoned decision-making," not that it definitively identify pollutant levels below which risks to public health are negligible. Thus, EPA's inability to guarantee the accuracy or increase the precision of the PM2.5 NAAQS in no way undermined the standards' validity. Rather, these limitations indicated only that significant scientific uncertainty remains about the health effects of fine particulate matter at low atmospheric concentrations. As the exhaustive rulemaking process makes clear, EPA set the primary NAAQS notwithstanding that uncertainty, just as the Act requires.