Natural Res. Def. Council v. Envtl. Prot. Agency
Opinion
The Clean Air Act calls upon the Environmental Protection Agency to protect air quality by enforcing state and local limits on the amount of pollution. The agency need not count against those limits pollution caused by "exceptional events." In this case, Natural Resources Defense Council and Sierra Club challenge a rule the agency uses to determine whether an event caused by recurring activity is "natural," and thus "exceptional," or "caused by human activity," and thus not.
I
To "protect the public health,"
*462
Since 1977, EPA has recognized that "[f]ederal, [s]tate, and local air pollution control officials have expressed a great deal of concern" that counting emissions caused by "exceptional events" inflates reported levels of pollutants, which sometimes pushes an area otherwise in attainment to be designated as nonattainment. EPA, EPA-450/4-86-007,
Guideline on the Identification and Use of Air Quality Data Affected by Exceptional Events
1 (1986). To avoid this, EPA suggested in a series of informal guidelines that state and federal agencies need not include in their pollution reports those pollutants emitted from exceptional events.
See, e.g.
, EPA, OAPQS No. 1.2-008,
Guideline for the Interpretation of Air Quality Standards
(1977). The agency considered events to be exceptional if "they are not expected to recur routinely at a given location, or they are possibly uncontrollable or unrealistic to control through the [SIP] process." EPA-450/4-86-007 at 1. In 2005, Congress added this practice to the Act. Act of Aug. 10, 2005, Pub. L. No. 109-59, sec. 6013(a), § 319, 119 Stat 1144, 1882-884 (codified as amended at
The Act sets out several requirements that events must satisfy to be exceptional.
The environmental groups filed a timely petition for review in our court,
1
and we have jurisdiction to review the 2016 Rule for compliance with the Act.
See
*463
(citations and internal quotation marks omitted). Nowhere in its motion or brief does API identify a single member of its organization or support with evidence its vague assertion that an adverse result in this case will injure any member. Because API failed to establish the constitutional standing required to participate as an intervenor, we instead grant it the status of amicus curiae.
See
Fed. R. App. P. 29(a) ;
see also
Old Dominion Elec. Coop. v. FERC
,
We now consider whether the Act's exceptional-event provision permits EPA to attribute emissions to natural causes when they were also caused by regulated human activity.
II
The Act allows areas to keep their attainment designations when their pollutant levels exceed the NAAQS so long as those emissions resulted from an exceptional event. An exceptional event is one that "affects air quality," is "not reasonably controllable or preventable," and is "caused by ... activity that is unlikely to recur at a particular location."
The Act does not give a definition for "natural event," so EPA defined it in the 2016 Rule:
[A natural event is] an event and its resulting emissions, which may recur at the same location, in which human activity plays little or no direct causal role. For purposes of the definition of a natural event, anthropogenic sources that are reasonably controlled shall be considered to not play a direct role in causing emissions.
According to the environmental groups, this approach stretches the meaning of "natural event" beyond what the text of the Act can bear. They concede that, in some circumstances, the Act permits EPA to classify an event and its resulting emissions as natural even though human activity played a small role. However, they contend that EPA must count, for the purposes of characterizing an event as natural, the role played by both types of human activity-that which complies with environmental regulations and that which does not.
We review EPA's definition of natural event under
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.
,
At step one, we consider whether the Act issued unambiguous instructions for distinguishing natural events from events caused by human activity. Outside its statutory context, "natural" ordinarily means something unaffected by human activity. See, e.g. , Merriam-Webster's Collegiate Dictionary 774 (10th ed. 1997) (defining natural as "growing without human care ... existing in or produced by nature: not artificial"); Oxford English Dictionary Online, http://www.oed.com/view/Entry/125333 (3d ed. 2003) (defining natural as "[f]ormed by nature; not subject to human intervention, not artificial"); Black's Law Dictionary 1048 (7th ed. 1999) (defining natural as "[b]rought about by nature as opposed to artificial means"). And an ordinary reading of "natural event" summons images of natural disasters such as tornados and volcanic eruptions; cosmic episodes, such as comets and harvest moons; and organic processes, such as viral epidemics and seasonal changes. These examples leave little room for human causation.
But what "natural event" means in the Act does not depend entirely on its ordinary reading because "the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."
Nat'l Ass'n of Home Builders v. Defenders of Wildlife
,
But EPA must draw that line, and the Act provides little guidance beyond establishing that the distinction exists.
4
See
It is at
Chevron
step two that we determine if the 2016 Rule "fill[s] the statutory gap in reasonable fashion."
Brand X
,
To illustrate their concern, they describe how the 2016 Rule would apply to a windstorm that blew pollutants emitted from a reasonably controlled power plant to another jurisdiction's air-quality monitor, which then registered a much higher pollutant concentration than would be typical for that area. The environmental groups argue that EPA would consider the emissions to be the result of a natural event. Although human activity produced the emissions, they believe EPA would not consider the role played by the power plant because it complied with the relevant air-quality regulations. Instead, EPA would look to only the windstorm and conclude that the event was natural.
But such an outcome wouldn't be possible under the statutory and regulatory safeguards in place. The environmental groups do not challenge EPA's understanding that an "event" must be an occurrence that "deviat[es] from normal or expected conditions."
The environmental groups seem to suggest that emissions from "routine" activities could become emissions from an "event" if they are later affected by unexpected activity. However, this misreads the 2016 Rule. "
Natural event
means an event and its
resulting
emissions,"
*466 The agency would give a different answer for emissions generated by a windstorm that swept up particulate matter from a dirt road. In that case, no pollutants would be emitted until the wind struck the road and swept particles into the air. If the road were reasonably controlled, EPA would discount the road's role and look only to the windstorm. But if the road had been improperly maintained, EPA would consider both the road's and the windstorm's contributions to the emissions.
We think the 2016 Rule preserves the Act's distinct treatment of natural events. Although we recognize the possibility raised, but not demonstrated, by the environmental groups that extreme and unforeseen applications of the rule might have problematic results, the 2016 Rule still passes muster under
Chevron
step two. The "possibility that the rule, in uncommon particular applications, might exceed EPA's statutory authority does not warrant judicial condemnation of the rule in its entirety."
EPA v. EME Homer City Generation, L.P.
, --- U.S. ----,
III
We deny the petition for review because the 2016 Rule's definition of natural event is permissible under the Act.
So ordered .
Although an EPA rule previously defined "natural event" in 2007, the 2016 Rule reopened the issue.
See
Sierra Club v. EPA
,
An association has standing on behalf of its members when: "(1) 'its members would otherwise have standing to sue in their own right'; (2) 'the interests it seeks to protect are germane to the organization's purpose'; and (3) 'neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.' "
Ctr. for Sustainable Econ. v. Jewell
,
In general, "reasonably controlled" means that the human activity satisfied the relevant SIP standards.
The Act also provides broad governing principles, such as the supremacy of public health, that could place some limits on EPA's choice of rules.
See
To the extent the environmental groups are challenging EPA's interpretation of its own regulations, we defer to the agency's understanding.
See
Auer v. Robbins
,
This does not mean that emissions produced by human activity and transported by wind to a new area can never be the result of an exceptional event. It simply means that EPA would treat them as a result of human activity and consequently subject to the recurrence condition for exceptional events.
See, e.g.
,
Reference
- Full Case Name
- NATURAL RESOURCES DEFENSE COUNCIL and Sierra Club, Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, Respondents American Petroleum Institute, Intervenor
- Cited By
- 1 case
- Status
- Published