United States Court of Appeals, District of Columbia Circuit
Delaware Department of Natural Resources and Environmental Control, Petitioner
Environmental Protection Agency, Respondent
October 5, 2017
Petition for Judicial Review of Final Action of the United
States Environmental Protection Agency
Valerie M. Edge, Deputy Attorney General, Office of the
Attorney General for the State of Delaware, argued the cause
and filed the briefs for petitioner.
Phillip R. Dupré, Attorney, U.S. Department of
Justice, argued the cause for respondent. With him on the
brief was John C. Cruden, Assistant Attorney General, at the
time the brief was filed.
Before: Rogers and Griffith, Circuit Judges, and Ginsburg,
Senior Circuit Judge.
Griffith, Circuit Judge.
Clean Air Act authorizes the Environmental Protection Agency
to set national air-quality standards. The Act also permits
the agency to extend the deadline for areas to comply with
those standards. Here, the agency granted an extension for a
multistate region to comply with national ozone standards.
Delaware, one of the four states partially within the
multistate region, petitions for review of the agency's
decision. We deny Delaware's petition.
Clean Air Act (the "Act") requires the
Environmental Protection Agency (EPA) to identify pollutants
that "may reasonably be anticipated to endanger public
health or welfare." 42 U.S.C. § 7408(a)(1)(A).
Pursuant to that duty, EPA formulates National Ambient Air
Quality Standards (NAAQS) that identify the maximum
permissible concentrations of these pollutants in the air.
See id. §§ 7408-09. Ozone is one pollutant
for which EPA has promulgated NAAQS. See 40 C.F.R.
EPA promulgates new or revised NAAQS, it segments the country
into areas for enforcing the NAAQS. Some areas lie within a
single state while others encompass portions of two or more
states. EPA designates each area as "attainment,"
"nonattainment," or "unclassifiable" with
respect to the NAAQS. 42 U.S.C. § 7407(d)(1)(A), (B).
"Attainment" areas meet the relevant NAAQS;
"nonattainment" areas violate the NAAQS or
contribute to NAAQS violations in a nearby area; and
"unclassifiable" areas are those for which EPA
lacks sufficient information to determine compliance.
Id. § 7407(d)(1)(A)(i)-(iii). EPA further
divides ozone nonattainment areas into five subcategories:
marginal, moderate, serious, severe, and extreme.
Id. § 7511(a)(1).
assigned a NAAQS designation, states must adopt and implement
"state implementation plans" (SIPs) to attain,
maintain, and enforce the NAAQS. Id. § 7410.
SIPs adopted by states in nonattainment areas must include
measures providing for attainment of the NAAQS "as
expeditiously as practicable." Id. §
7502(a)(2)(A), (B). Every area designated as nonattainment
for ozone NAAQS must come into attainment within a time
period set by the Act, based on the area's ozone
subcategory. Id. § 7511(a)(1). If a
nonattainment area for ozone misses its deadline for
attainment, EPA generally must bump the area up to the next
most urgent subcategory and impose additional regulatory
responsibilities on the states composing that area.
Id. § 7511(b)(2)(A).
the Act also permits EPA to grant extensions for an area to
meet its attainment deadline for ozone NAAQS. That provision
Upon application by any State, the Administrator may extend
for 1 additional year (hereinafter referred to as the
"Extension Year") the date specified [in the Act]
(A) the State has complied with all requirements and
commitments pertaining to the area in the applicable
implementation plan, and
(B) no more than 1 exceedance of the national ambient air
quality standard level of ozone has occurred in the area in
the year preceding the Extension Year.
No more than 2 one-year extensions may be issued under this
paragraph for a single nonattainment area.
Id. § 7511(a)(5).
2008, EPA updated the ozone NAAQS. See NAAQS for
Ozone, 73 Fed. Reg. 16, 436 (Mar. 27, 2008). EPA then
designated forty-five regions across the country as
nonattainment areas, including the "Philadelphia
Area," taking in parts of Delaware, Maryland, New
Jersey, and Pennsylvania. EPA classified the area as