Sierra Club, et al v. EPA, et al

Filing

OPINION [1701032] filed (Pages: 12) for the Court by Judge Williams. [16-1097]

USCA Case #16-1097

Document #1701032

Filed: 10/24/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2017

Decided October 24, 2017

No. 16-1097
SIERRA CLUB, ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY AND E. SCOTT PRUITT,
ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION
AGENCY,
RESPONDENTS
On Petition for Review of Agency Action of
the United States Environmental Protection Agency
Robert E. Yuhnke argued the cause and filed the briefs for
petitioners.
Meghan E. Greenfield, Trial Attorney, U.S. Department
of Justice, argued the cause for respondents. With her on the
briefs were Jeffrey H. Wood, Acting Assistant Attorney
General, and John C. Cruden, Assistant Attorney General at
the time the brief was filed. Sue S. Chen, Trial Attorney,
entered an appearance.
Before: HENDERSON and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: The petitioners—
environmental and community organizations—contend that
the Environmental Protection Agency has violated the
Administrative Procedure Act and the Clean Air Act by
modifying, without notice and comment, its prior
understandings of how to measure a proposed transportation
project’s impact on ambient levels of PM2.5 and PM10. (The
first is particulate matter 2.5 micrometers or less in diameter;
the second is particulate matter 10 micrometers or less in
diameter.) The parties agree that the modification would, at
the margin, make it less likely than before that a project would
run afoul of various legal restrictions on the affected projects.
As petitioners see it, the EPA’s new viewpoint violates the
Clean Air Act’s substantive requirements.
For want of jurisdiction we do not reach the substance of
either the APA or the Clean Air Act arguments. In the case of
PM2.5, petitioners have shown no instance where the change
would be likely to have any adverse effect on them or their
members; they therefore lack standing. In the case of PM10,
the EPA’s new provisions are not binding on the agency or
affected parties and therefore do not constitute “final action”
within the meaning of the Clean Air Act provision on which
petitioners rely for our jurisdiction, 42 U.S.C. § 7607(b)(1).
* * *
Under the Clean Air Act, the EPA has established
National Ambient Air Quality Standards (“NAAQS”) for
various pollutants including PM2.5 and PM10. To prevent uses
of federal money that would take an area out of compliance
with the NAAQS, the Act bars federal instrumentalities from
supporting projects that would tend to do so. The Act directs

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federal agencies not to supply funds for any project that “does
not conform” to the applicable State Implementation Plan
(“SIP”) (required of states in order to assure the
implementation and maintenance of the NAAQS, 42 U.S.C.
§ 7410), and defines conformity to the SIP as including
assurance that the project will not
(i) cause or contribute to any new violation of any
[NAAQS] in any area;
(ii) increase the frequency or severity of any existing
violation of any [NAAQS] in any area; or
(iii) delay timely attainment of any [NAAQS] . . . .
42 U.S.C. § 7506(c)(1)(B).
EPA regulations governing “conformity” determinations
for federally funded transportation plans possibly affecting
PM2.5, PM10, or carbon monoxide substantially replicate this
language. 40 C.F.R. § 93.116. (A separate set of regulations
applies to federal actions other than highways and mass
transit. See Determining Conformity of General Federal
Actions to State or Federal Implementation Plans, 58 Fed.
Reg. 63,214 (Nov. 30, 1993).) To define the conformity
requirement’s scope, the regulations employ the Act’s
classifications of areas with respect to “attainment” of the
standard for a particular pollutant. Under the Act, an area of a
state that fails to comply with a given NAAQS is rated
“nonattainment”; one that formerly did not comply but now
does, but has yet to satisfy some transitional criteria, is
designated “maintenance.” An area is in “attainment” if it not
only meets the standard but is not subject to the qualifications
that would land the area in the “maintenance” category. 42
U.S.C. § 7407(d)(1)(A)(i)-(ii), (3)(E). The regulation applies

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conformity requirements only to areas designated
“nonattainment” or “maintenance.” 40 C.F.R. § 93.116(a).
Congress charged the EPA Administrator, with the
concurrence of the Secretary of Transportation, with
promulgating “criteria and procedures for demonstrating and
assuring conformity in the case of transportation plans,
programs, and projects.” 42 U.S.C. § 7506(c)(4)(B). For CO
and PM, the EPA created a so-called “hot-spot” analysis. It
specified that project sponsors (typically state departments of
transportation) should combine the baseline concentration
with the expected increment resulting from the project, and
compare the sum with the concentration permitted by the
NAAQS. 40 C.F.R. § 93.123(c)(1); see also 75 Fed. Reg.
79,370, 79,370/3-79,371/1.
In 2006, when the EPA first revised the hot-spot
regulations to apply to PM2.5, the regulations said that the hotspot analysis “must be based on quantitative analysis
methods” for projects of local air quality concern, including
“[n]ew highway projects that have a significant number of
diesel vehicles, and expanded highway projects that have a
significant increase in the number of diesel vehicles.” 40
C.F.R. § 93.123(b)(1), (b)(1)(i). But they also said that
quantitative methods would not take effect “until EPA
release[d] modeling guidance on this subject and announce[d]
in the Federal Register that these requirements are in effect.”
40 C.F.R. § 93.123(b)(4). Until then, rather vaguely described
“qualitative” methods were to prevail. In fact, and of some
importance for our analysis, the mandate to use quantitative
methods took effect only after a two-year grace period
following the EPA’s issuance of the preferred methodology in
December 2010. See 40 C.F.R. § 93.111(a)-(b); 75 Fed. Reg.
at 79,370/2.

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The EPA issued that guidance after employing notice and
comment procedures specified by a settlement with
environmental groups. See 75 Fed. Reg. 29,537, 29,538/1;
see also Joint Appendix (“J.A.”) 299-302. It announced the
release in the Federal Register. See 75 Fed. Reg. at 79,370/2.
The Guidance essentially required a summing of monitored
PM on a specified extreme day (for the baseline) with the
modeled PM increment for a specified extreme day (for the
future).
See Transportation Conformity Guidance for
Quantitative Hot-spot Analyses in PM2.5 and PM10
Nonattainment and Maintenance Areas (EPA-420-B-10-040,
Dec.
2010)
(“2010
Guidance”),
available
at
nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=P1009HVH.TXT.
(In some cases, the baseline was to be adjusted by an estimate
of possible changes independent of the project. See 40 C.F.R.
§ 93.123(c)(2); 2010 Guidance at § 8.3.3.) If the total (called
the design value) was lower than the NAAQS, the project
conformed. The rules for PM2.5 and PM10 differed simply in
their identification of the extreme days to be evaluated.
The 2015 Guidance—issued as we said without notice
and comment—expressed an alteration of the EPA’s view of
the proper methodology for the design value for both PM2.5
and PM10. Given that we are not reaching the merits, and that
all parties agree that at the margin the alteration tends to
reduce the likelihood of a non-conformity finding, we need
not describe the change. It essentially involved altering the
designation of the extreme days for which the calculations
were to be made. See Transportation Conformity Guidance
for Quantitative Hot-spot Analyses in PM2.5 and PM10
Nonattainment and Maintenance Areas (EPA-420-B-15-084,
Nov.
2015)
(“2015
Guidance”),
available
at
nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=P100NMXM.pdf.
In both 2010 and 2015, the guidance documents further
explained that, pursuant to 40 C.F.R. § 93.105(c), an

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interagency consultation process “must be used to develop a
process to evaluate and choose models and associated
methods and assumptions to be used in PM hot-spot
analyses.” 2015 Guidance, § 2.3; 2010 Guidance, § 2.3. This
consultation process requires that the state department of
transportation sponsoring a project work with the EPA, the
Department of Transportation, and relevant state agencies
during the design and implementation of the hot-spot analysis.
After the state department of transportation completes its
analysis, it submits it to the Department of Transportation for
a final conformity determination. 40 C.F.R. § 93.104; 2015
Guidance, § 2.9.2.
* * *
We find that petitioners lack standing to challenge the
2015 Guidance regarding PM2.5, and that we have no statutory
jurisdiction under 42 U.S.C. § 7607(b)(1) to rule on their
PM10 claim because the 2015 Guidance imposes no binding
norm.
PM2.5. The environmental organizations assert standing
on the basis of the additional exposure to pollutants that they
believe the change from the 2010 to the 2015 Guidance will
inflict on their members. See Nat’l Envtl. Dev. Ass’n’s Clean
Air Project v. EPA, 752 F.3d 999, 1005 (D.C. Cir. 2014).
Specifically, they point to possible effects on the legal
viability of three highway projects—I-70 East in Colorado,
South Mountain Freeway in Arizona, and I-710 in California.
Their difficulty lies in their having failed to adduce evidence
that the change will have any effect on any of the projects.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561
(1992); Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir.
2002).

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The first two—I-70 East in Colorado and South Mountain
Freeway in Arizona—are not located in a nonattainment or
maintenance area for PM2.5, so for these projects the
regulations require no PM2.5 hot-spot analysis. That ends the
matter as to those projects.
The third project, I-710 in California, is within a
nonattainment zone for PM2.5. But petitioners have made no
showing that the 2015 methodology will be used by the I-710
project sponsors or that applying that methodology would
make any difference. The only evidence in the record with
regard to the I-710 project’s conformity analysis is a 2012
draft Environmental Impact Study (“EIS”). J.A. 245-58. That
study was not based on either the 2015 or the 2010
methodology: It was drafted in the two-year grace period
between the EPA’s release of guidance for use of quantitative
methods and the date on which their use became obligatory.
See 40 C.F.R. §§ 93.111(b), 93.123(b)(4); J.A. 257. And it
obviously preceded release of the 2015 Guidance—in fact by
more than three years.
A supplemental draft EIS was released for the I-710
project in July 2017. Even if this post-filing development
could alter our standing analysis, see Wheaton College v.
Sebelius, 703 F.3d 551, 552 (D.C. Cir. 2012) (“[S]tanding is
assessed at the time of filing . . . .”), it too would be of no help
to petitioners. The supplemental draft EIS explains that no
quantitative hot-spot analysis has yet been conducted for
PM2.5 and that the I-710 project sponsors are in the process of
developing the methodology they will use: “The PM hotspot
analysis protocol is under development, and the interagency
consultation process regarding this protocol has been
initiated.” See California State Department of Transportation
& Los Angeles County Metropolitan Transit Authority, I-710
Corridor Project Recirculated Draft Environmental Impact
Report/Supplemental Draft Environmental Impact Statement

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and Section 4(f) Evaluation, p. 3.13-15, available at
http://www.dot.ca.gov/d7/env-docs/docs/RDEIR_SDEIS%
20July%202017.pdf. But nothing appears to suggest that the
project will fall in that critical margin between the 2010 and
the 2015 methods.
Thus petitioners have failed to establish that the 2015
PM2.5 methodology will be used or that its use would result in
a conformity determination different from the one that would
have resulted if the 2010 methodology had applied—the latter
a point counsel for petitioners conceded at oral argument.
Oral Argument 7:30-7:47.
The government concedes that petitioners have
established injury for purposes of standing to challenge the
revised PM10 hot-spot methodology. Oral Argument 21:3022:06. We have no reason to doubt the concession, but we
need not address the question in view of our lack of statutory
jurisdiction over the PM10 claims. See Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 585 (1999) (“[A] federal
court [may] choose among threshold grounds for denying
audience to a case on the merits.”). Even if we were to find
that petitioners have standing to challenge the PM10
provisions, that finding would not create standing to challenge
those for PM2.5. Standing is not evaluated “in gross.” Lewis
v. Casey, 518 U.S. 343, 358 n.6 (1996); see also Davis v.
FEC, 554 U.S. 724, 733–34 (2008); DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 352 (2006).
Because petitioners have not identified “any concrete
application” of the 2015 PM2.5 methodology “that threatens
imminent and concrete harm to the interests of their
members,” see Summers v. Earth Island Inst., 555 U.S. 488,
494-95 (2009), we hold that they lack standing as to that
aspect of the 2015 Guidance.

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PM10.
Under the Clean Air Act, this Court has
jurisdiction over a petition for review of any “nationally
applicable regulations promulgated, or final action taken, by
the Administrator under this chapter . . . .”
42 U.S.C.
§ 7607(b)(1) (emphasis added). In the absence of final agency
action, we lack jurisdiction to hear an administrative
challenge. Dalton Trucking, Inc. v. EPA, 808 F.3d 875, 879
(D.C. Cir. 2015); Portland Cement Ass’n v. EPA, 665 F.3d
177, 193 (D.C. Cir. 2011).
In a case under the Clean Air Act, “the term ‘final action’
is synonymous with the term ‘final agency action’ as used in
Section 704 of the APA.” Indep. Equip. Dealers Ass’n v.
EPA, 372 F.3d 420, 428 (D.C. Cir. 2004). For a purported
guidance document, the basic question is “whether the
challenged agency action is best understood as a non-binding
action, like a policy statement or interpretive rule, or a binding
legislative rule.” Ass’n of Flight Attendants-CWA, AFL-CIO
v. Huerta, 785 F.3d 710, 716 (D.C. Cir. 2015). “Policy
statements ‘are binding on neither the public nor the agency,’
and the agency ‘retains the discretion and the authority to
change its position . . . in any specific case.’” Id. (quoting
Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir.
1997)).
In resolving the issue, we typically consider (1) “the
actual legal effect (or lack thereof) of the agency action in
question on regulated entities”; (2) “the agency’s
characterization of the guidance”; and (3) “whether the
agency has applied the guidance as if it were binding on
regulated parties.” Nat’l Mining Ass’n v. McCarthy, 758 F.3d
243, 252-53 (D.C. Cir. 2014).
In their claim that the change in the PM10 methodology is
binding on project sponsors and on the relevant agencies,

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petitioners disregard both the plain language of the Guidance
and the way it has been administered.
In both 2010 and 2015, the EPA explained that the
recommended PM10 methodology was just that—a
recommendation. The Guidance explicitly states that the EPA
was open to considering better, alternative methods:
More advanced methods of calculating a PM10 design
value, such as combining modeled and monitored
concentrations on a quarterly basis, may be considered on
a case-by-case basis by the EPA Regional Office, OTAQ
[Office of Transportation Air Quality], and OAQPS
[Office of Air Quality Planning and Standards]. Any
alternative methods for calculating PM10 design values
must be evaluated and chosen through the process
established by each area’s interagency consultation
procedures (40 C.F.R. § 93.105(c)(1)(i)).
2015 Guidance, § 9.3.4; 2010 Guidance, § 9.3.4.
Contrary to petitioners’ assertions, this is not a case in
which the guidance document signals that the agency “will not
be open to considering approaches other than those
prescribed” therein. See Gen. Elec. Co. v. EPA, 290 F.3d 377,
384 (D.C. Cir. 2002); see also McLouth Steel Prod. Corp. v.
Thomas, 838 F.2d 1317, 1321 (D.C. Cir. 1988). We said of
the guidance at issue in Appalachian Power Co. v. EPA, 208
F.3d 1015 (D.C. Cir. 2000), that “from beginning to
end . . . [it] reads like a ukase. It commands, it requires, it
orders, it dictates.” Id. at 1023. This is no ukase. As the
quoted passage shows, it affirmatively invites the affected
agencies to consider and apply improvements.
The EPA’s vow to remain flexible was not just talk, as
shown by its conduct under identical language in the 2010

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Guidance. In August 2014, as part of the interagency
consultation process, the EPA and the project sponsors for the
I-70 East and South Mountain Freeway projects discussed
how to properly perform the hot-spot analysis required by 40
C.F.R. § 93.123.
See J.A. 195-97, 225-26.
In two
substantially contemporaneous communications with the
project sponsors, the EPA explained that it had “recently
provided technical assistance for another project” and that
now “[a]nother option is available” for calculating the PM10
design value. J.A. 197, 227. “Based on implementation of
the PM Hot-spot guidance to date,” the EPA said that it
“believe[d] that there is further flexibility in what air quality
monitoring data is used for design value calculations for PM
hot-spot analyses” and that the relevant project sponsors could
adopt “a slightly revised methodology for PM10 design value
calculations.” J.A. 197, 227. The new possibility was
ultimately to appear as the key novelty in the 2015 Guidance.
On its face and as applied, the 2015 changes to the PM10
methodology are not binding. Petitioners contend that we
should nonetheless find that the 2015 Guidance is a legislative
rule because it purports to change another legislative rule. We
agree, of course, that an amendment to a legislative rule must
itself be legislative. Huerta, 785 F.3d at 718; Am. Mining
Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1109
(D.C. Cir. 1993). But petitioners are mistaken in their
premise that the 2010 Guidance was itself a legislative rule.
As we have just discussed, the 2010 PM10 methodology
was not applied with unyielding rigidity; instead, the EPA
modified its approach over time. And while the release of the
Guidance in 2010 had the effect of triggering the effective
date of the requirement that project sponsors use quantitative
(as opposed to qualitative) methods to perform the hot-spot
analysis, that consequence flowed from the issuance of the
Guidance, not its substance.

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Petitioners counter that the 2010 Guidance must be a
legislative rule because it was promulgated with notice and
comment. Even if petitioners were right that full APA
procedures were used in the release of the 2010 Guidance (a
point the EPA contests), an agency’s decision to embrace
additional process cannot convert a guidance document into a
legislative rule. See Am. Tort Reform Ass’n v. OSHA, 738
F.3d 387, 394 (D.C. Cir. 2013). The EPA makes a host of
guidance documents available for public comment. See
Significant
Guidance
Documents,
available
at
https://www.epa.gov/laws-regulations/significant-guidancedocuments. That doesn’t transform them into legislative
rules. Petitioners’ theory, if adopted, would discourage
agencies from pursuing the very public engagement they seek.
In short, the PM10 design value methodology found in the
2015 Guidance “does not express a final agency action, and so
we lack jurisdiction under the Clean Air Act, 42 U.S.C.
§ 7607(b), to consider” it. See Am. Petroleum Inst. v. EPA,
684 F.3d 1342, 1354 (D.C. Cir. 2012).
* * *
Because the petitioners lack standing with respect to the
revised PM2.5 methodology and because we lack jurisdiction
under the statute for their challenge to the revised PM10
methodology, the petition for review is
Dismissed.

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