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Delaware Department of Natural Resources and Environmental Control v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

July 10, 2018

Delaware Department of Natural Resources and Environmental Control, Petitioner
v.
Environmental Protection Agency, Respondent

          Argued October 5, 2017

         On 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.

          OPINION

          Griffith, Circuit Judge.

         The 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.

         I

         A

         The 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. pt. 50.

         Once 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).

         Once 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).

         However, the Act also permits EPA to grant extensions for an area to meet its attainment deadline for ozone NAAQS. That provision reads:

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] if-
(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).

         B

         In 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 ...


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