Sierra Club v. EPA , 311 F.3d 853 ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-2844, 01-2845
SIERRA CLUB and MISSOURI COALITION
FOR THE ENVIRONMENT,
Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY
and CHRISTINE TODD WHITMAN, Administrator,
Respondents,
STATE OF ILLINOIS, STATE OF MISSOURI
and BI-STATE INTERVENORS,
Intervening Respondents.
____________
On Petition for Review of Final Rules
of the Environmental Protection Agency.
____________
ARGUED APRIL 15, 2002—DECIDED NOVEMBER 25, 2002
____________
Before ROVNER, DIANE P. WOOD, and EVANS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. The Clean Air Act (CAA),
42 U.S.C. § 7401, et seq., first enacted in 1970 and exten-
sively revised in 1977 and 1990, establishes a complex and
comprehensive regulatory system to reduce air pollution
nationwide. The CAA requires the Environmental Pro-
tection Agency (EPA) to set national ambient air quality
2 Nos. 01-2844, 01-2845
standards (NAAQS) specifying the maximum permissible
air concentration of pollutants such as ozone, carbon mon-
oxide, and sulfur dioxide. The 1990 Amendments created
a classification system for areas that had not yet attained
the permissible NAAQS for ozone based on how far out
of compliance they were. It also specified measures each
nonattainment area was required to take and limited
the number of years each area had to achieve compli-
ance. In 1991, the EPA designated the St. Louis area
(consisting of the city of St. Louis, four Missouri counties,
and three Illinois counties) as a “moderate” area. 56 Fed.
Reg. 56,694, 56,751 (Nov. 6, 1991). This meant that it
had until November 15, 1996, to achieve compliance. 42
U.S.C. § 7511(a)(1). As of the time the record in this
case was compiled, St. Louis had not attained the ozone
NAAQS.
Such a failure, according to the text of the CAA, should
result in a “bump-up” to the next classification, “serious.”
Although the EPA agreed in a March 18, 1999, proposed
rule that St. Louis was still out of compliance, see 64 Fed.
Reg. 13,384, it noted that St. Louis had made such good
progress that it was otherwise only in “marginal” noncom-
pliance. Under the CAA, however, the fact that St. Louis
was not in full compliance required that its classification
be upgraded to “serious,” rather than being downgraded
to “marginal.” The EPA, however, did not take the re-
quired action; instead, it proposed that it would redesig-
nate St. Louis as a serious area, but defer final action on
its reclassification while it investigated the possibility of
a deferral of the formal “attainment date.”
This maneuver prompted the Sierra Club to file a law-
suit against the EPA in the district court for the District
of Columbia. In response to that suit, the EPA issued a
rule which extended St. Louis’s attainment deadline by
eight years. The case now before us is a direct petition for
review of the final EPA rule. Because we find that the
Nos. 01-2844, 01-2845 3
EPA has no authority to create such an extension, we
grant the petition for review and order the agency to
redesignate St. Louis a serious nonattainment area.
I
Under the CAA, states that have not met the NAAQS
for any pollutant are required to draft State Implemen-
tation Plans (SIPs) specifying emissions limitations ap-
plicable to pollution and taking additional steps to at-
tain the relevant NAAQS. 42 U.S.C. § 7410(a). SIPs must
be designed to bring a state into compliance and also
must prohibit emissions that “contribute significantly to
nonattainment in, or interfere with maintenance by, any
other State.” Id. § 7410(a)(2)(D)(i)(I).
In 1990, Congress responded to the problem of wide-
spread nonattainment of the ozone NAAQS by adding
“Subpart 2,” 42 U.S.C. §§ 7511-7511f, which had the
purpose of imposing “carefully designed restrictions on
EPA discretion.” Whitman v. American Trucking Ass’ns,
Inc., 531 U.S. 457, 484 (2001). The EPA was to classify
each ozone nonattainment area as either marginal, moder-
ate, serious, severe, or extreme based upon its 1989 air
quality. 42 U.S.C. § 7511(a)(1). Each area is then re-
quired to impose specific pollution controls and must
achieve the ozone NAAQS by an assigned attainment
date, ranging from 1993 to 2010, depending on the area’s
classification. Subpart 2 further provides that in some
circumstances the EPA may grant “no more than 2 one-
year extensions” of an area’s attainment date. Id.
§ 7511(a)(5); American Trucking, 531 U.S. at 493.
Within six months of an area’s attainment date, the
EPA must determine “whether the area attained the
standard by that date.” 42 U.S.C. § 7511(b)(2)(A). If the
EPA determines that a marginal, moderate, or serious
area did not attain the pertinent standard, it is required
4 Nos. 01-2844, 01-2845
to reclassify the area to the next higher classification.
Id. The area’s attainment date is then extended, but it
is at the same time subjected to the additional controls
applicable to the higher classification. H.R. REP. NO. 101-
490, at 232 (1990).
Although much air pollution is a local problem, wind
currents and other environmental factors can cause emis-
sions from “upwind” regions to contribute extensively to
pollution in “downwind” areas. Congress recognized this
problem in 1990 by strengthening several provisions of
the CAA. First, it required for the first time that SIPs pro-
hibit not just emissions that pollute the state where the
source is located but also those that contribute to the
nonattainment of any other state. Id. § 7410(a)(2)(D). Sec-
ond, it reaffirmed that downwind states affected by trans-
ported pollution may petition the EPA to impose limits
directly on upwind sources of pollution. Id. §§ 7426(b)-(c).
In 1995, the EPA acknowledged that many downwind
states were having difficulty making progress toward
attaining the ozone NAAQS through no fault of their own,
but rather because of upwind pollution. It convened an
Ozone Transport Assessment Group (OTAG) to study
the problem. OTAG’s work culminated in the “NOx SIP
Call,” which required various upwind states to revise their
SIPs by implementing further environmental controls. 62
Fed. Reg. 60,318, 60,319 (Nov. 7, 1997). See generally
Michigan v. EPA, 213 F.3d 663, 672 (D.C. Cir. 2000)
(describing OTAG). The NOx SIP Call gives states until
May 31, 2004, to implement specific NOx controls. Since it
is accepted on this record that the St. Louis area is in
part burdened by transported pollution from Kentucky,
the NOx SIP Call is expected to benefit it.
II
The EPA first designated St. Louis a nonattainment area
in 1978. 43 Fed. Reg. 8964 (Mar. 3, 1978). In 1991, as noted
Nos. 01-2844, 01-2845 5
above, it classified St. Louis as a moderate ozone non-
attainment area in accordance with the 1990 Amendments,
with a statutory attainment deadline of November 15,
1996. 56 Fed. Reg. 56,694, 56,786 (Nov. 6, 1991). To this
day, St. Louis has failed to attain the ozone NAAQS. In
1998, the Sierra Club filed a lawsuit in which it asked
the district court to order the EPA to publish a notice
reclassifying St. Louis as a serious area for failing to meet
its attainment date. The EPA responded by publishing
a proposed notice of reclassification. 64 Fed. Reg. 13,384
(Mar. 18, 1999). Upon closer inspection, however, it was
apparent that the proposed notice was delivering less
than it promised, insofar as the EPA also stated in it that
the agency would issue a final rule only after giving St.
Louis an opportunity to qualify for an attainment date
extension under its downwind extension policy (the Exten-
sion Policy). Id. at 13,385.
The Extension Policy is an EPA interpretation of the
CAA to allow downwind areas to extend their attainment
dates if they meet certain criteria. 64 Fed. Reg. 14,441
(Mar. 25, 1999). To qualify, the downwind area must
show that ozone transport “significantly contributes” to the
area’s nonattainment and that the area has adopted
local measures that will cause it to be in compliance with
the standards no later than the date on which reductions
are expected from upwind areas as a result of the NOx
SIP Call. Id. at 14,442. The EPA justified its policy on
essentially equitable grounds: it felt that an extension for
this type of area was necessary because otherwise the
area would be bumped up to a higher nonattainment
classification despite the fact that pollution from upwind
areas was contributing to its nonattainment. Id.
The Sierra Club continued to press its lawsuit. On a
motion for summary judgment, the EPA conceded that
it had failed to comply with the statutory mandate to
publish an attainment rule for St. Louis by May 15, 1997,
6 Nos. 01-2844, 01-2845
but it asked that it nonetheless be permitted to defer
publication of the final classification order until June 29,
2001. The delay would give the agency time to finalize a
decision about St. Louis’s entitlement to an extension un-
der the Extension Policy. On January 29, 2001, the district
court granted the Sierra Club summary judgment and
ordered the EPA to publish notice of its final determina-
tion no later than March 20. Sierra Club v. Browner, 130
F. Supp. 2d 78, 95 (D.D.C. 2001).
On March 9, the EPA filed a “Motion Re: Alternative
Planned Response to Comply with Court’s Order of Jan-
uary 29, 2001.” In that motion, the EPA noted that under
the Administrative Procedure Act its final rules nor-
mally take effect 60 days after publication. However, it
announced that with its March 19 Final Rule it would
also publish a proposed rule to postpone the effective date
of the nonattainment determination from May 18 until
June 29. In response, the district court noted that it only
had jurisdiction to compel the EPA to comply with spe-
cific statutory mandates and that the EPA would fulfill
its obligations so long as it published a rule by March 20.
The Sierra Club petitioned the D.C. Circuit for a writ of
prohibition, which was denied on the ground that the
Sierra Club had adequate, alternative remedies, namely
an appeal to this court under 42 U.S.C. § 7607(b)(1). In re
Sierra Club, No. 01-1141, 2001 WL 799956, at *1 (D.C. Cir.
June 8, 2001).
The EPA then took the course of action it had outlined
to the district court. On March 19, it determined that St.
Louis had failed to meet its attainment date and would,
as of May 18, be reclassified as a serious nonattainment
area. 66 Fed. Reg. 15,578. It also proposed to set a new
attainment date of November 15, 2004. That same day
the EPA proposed a separate rule to extend the effective
date of the St. Louis nonattainment determination from
May 18 until June 29. 66 Fed. Reg. 15,591. The EPA
Nos. 01-2844, 01-2845 7
finalized this rule on May 16 and formally extended the
effective date of the nonattainment determination to June
29. 66 Fed. Reg. 27,036. Finally, on June 26, the EPA
issued a final rule finding that St. Louis qualified under the
Extension Policy and extending its attainment date from
November 15, 1996 to November 15, 2004. 66 Fed. Reg.
33,996. The EPA determined that in light of the signifi-
cant contribution of upwind pollution from Kentucky, the
attainment date extension was necessary “to give effect
to Congressional intent” and “to redress the unfairness of
requiring a local area to pay the costs of curing problems
created by pollution transported from [other states].” Id.
at 34,005.
The Sierra Club filed a motion in the district court
to enforce its judgment and to order the EPA to with-
draw the June 26 rule. The district court held that it
lacked jurisdiction to take that action and that the EPA
had complied with its limited order by publishing a no-
tice before March 20. That ruling was affirmed on appeal.
Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002).
At the same time, the Sierra Club petitioned this court
for review of the May 16 and June 26 rules.
III
In a nutshell, the Sierra Club argues before this court
that the EPA’s Extension Policy goes beyond its author-
ity under the statute. In assessing the Sierra Club’s claim
that the EPA has acted unlawfully, we are guided by
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Chevron requires us to engage
in a two-step inquiry. At step one, we inquire whether
Congress “has directly spoken to the precise question
at issue,” in which case we “must give effect to the unam-
biguously expressed intent of Congress.” Id. at 842-43.
If the statute is silent or ambiguous on the issue, we will
8 Nos. 01-2844, 01-2845
defer at step two to any reasonable agency interpretation.
Id. at 843; Allied Local & Reg’l Mfrs. Caucus v. EPA, 215
F.3d 61, 68 (D.C. Cir. 2000). In this case, the first step
of the inquiry is dispositive.
Before proceeding, however, we must assure ourselves
that Chevron provides the proper framework here. The
Sierra Club says that it does not; it argues that we
should instead review the EPA’s rules de novo under the
principles espoused in United States v. Mead Corp., 533
U.S. 218, 226-27 (2001). While Mead did restrict the level
of a court’s deference to informal agency actions, Chevron
still applies to policies expressed in an agency’s final
rules that have been subject to notice and comment review,
as both the May 16 and June 26 rules have. Mead, 533
U.S. at 230; U.S. Freightways Corp. v. CIR, 270 F.3d 1137,
1141 (7th Cir. 2001). We are satisfied that these are for-
mal enough expressions of agency position that these
rules, at least, fall under the Chevron framework. The
Extension Policy, however, is another matter, as we shall
see.
The Sierra Club’s principal challenge is that the EPA
has no statutory authority to implement the Extension
Policy and grant St. Louis an extension. The EPA acknowl-
edges that the CAA’s text does not grant it such author-
ity explicitly, but it believes that its policy is supportable
nonetheless in light of a “broader congressional intent
not to punish downwind areas affected by ozone transport.”
The most obvious problem with the EPA’s approach is
that Congress has already spoken to the precise question
of extensions under the CAA by enacting an extension
provision that looks nothing like the agency’s Extension
Policy. In 42 U.S.C. § 7511(a)(5), Congress granted the
EPA authority to extend an area’s nonattainment dead-
line, but only under narrow circumstances. The area must
have implemented all measures required under its SIPs,
Nos. 01-2844, 01-2845 9
can have recorded no more than one ozone exceedance
in the previous year, and can be granted “no more than
2 one-year extensions.” See generally Wall v. EPA, 265
F.3d 426, 432 (6th Cir. 2001) (discussing application of
this provision to Cincinnati). The Supreme Court has
emphasized the fact that Subpart 2 of Title I of the CAA,
§§ 7511 to 7511f, was designed to “eliminate[ ] regulatory
discretion that [Subpart 1] allowed.” American Trucking,
531 U.S. at 484. “Whereas the EPA has discretion under
Subpart 1 to extend attainment dates for as long as 12
years, under Subpart 2 it may grant no more than 2 years’
extension.” Id. Since the CAA explicitly delegates to the
EPA the authority to grant only two years’ worth of ex-
tensions, we can only conclude that the agency’s decision
to extend St. Louis’s deadline by eight years, from 1996
to 2004, is invalid. The reading of the statute the EPA
has adopted, and that it defends here, “would subvert
the plain meaning of the statute, making its mandatory
language merely permissive,” Miller v. French, 530 U.S.
327, 337 (2000), and contravene the general principle
that a literal interpretation of deadlines and time limits
is “the only proper reading of those words.” United States
v. Locke, 471 U.S. 84, 93 (1985). Furthermore, St. Louis
could not hope to qualify for the limited extension avail-
able through § 7511(a)(5), because it failed timely to im-
plement its SIP and has recorded more than one ozone
exceedance every year to date. The EPA has no power to
grant St. Louis an extension longer than the one author-
ized by the statute when it has not even met the statu-
tory prerequisites.
Undeterred, the EPA argues that “the fact that Congress
provided an extension based on air quality that is near
attainment . . . does not imply that Congress intended
to preclude EPA from authorizing extensions based on
other considerations.” It asserts that § 7511(a)(5) reflects
little more than a generalized intent not to punish states
10 Nos. 01-2844, 01-2845
that have done all they can to achieve attainment through
implementation of local controls. At this broad level of
analysis, it goes on, the EPA’s Extension Policy is entire-
ly consistent with the statute; it too recognizes that
some areas will be unable to achieve attainment even
though they have taken all steps required by the CAA,
because out-of-state pollution is being transported into
the area. Had Congress been aware of the problems that
would attend efforts to control transport, the EPA theo-
rizes, it would have “expressly, rather than implicitly,
authorized EPA’s actions here.”
The simple structure of the 1990 Amendments belies
the EPA’s claim. At the same time Congress enacted
§ 7511(a)(5), which applies to ozone nonattainment, it
also heavily revised Subpart 1 of the CAA, which deals
with other air pollutants. The EPA is also required to
set attainment dates for nonattainment areas with re-
spect to Subpart 1 pollutants, but it has the authority
to extend those dates “for a period no greater than 10
years . . . considering the severity of nonattainment and the
availability and feasibility of pollution control measures.”
42 U.S.C. § 7502(a)(2)(A). This is precisely what the EPA
is trying to do here; it has found that because of upwind
pollution it is not feasible for St. Louis to attain the ozone
NAAQS. But “it is generally assumed that Congress acts
purposely when it includes particular language in one
section of a statute but omits it in another.” City of Chicago
v. Environmental Defense Fund, 511 U.S. 328, 338 (1994)
(citing Keene Corp. v. United States, 508 U.S. 200, 208
(1993)). Since Congress left no doubt in Subpart 1 that
it knew how to grant the EPA the power to issue lengthy
extensions based on feasibility and practicality, we must
assume that its use of different language adopting a strict-
er extension policy under Subpart 2 was intentional.
The statute itself reveals that the EPA’s theory that
Congress was unaware of transported pollution is mistaken.
Nos. 01-2844, 01-2845 11
In several sections of the 1990 Amendments Congress did
address the problem of transport and explicitly wrote in a
variety of remedies. First, Congress permitted the EPA
to exempt from reclassification areas that could demon-
strate that they would have attained the ozone NAAQS
“but for emissions emanating from outside of the United
States.” 42 U.S.C. § 7509a(b). Second, the EPA may desig-
nate an area a “rural transport area” if it finds that “emis-
sions within the area do not make a significant contribu-
tion to the ozone concentrations.” Id. § 7511a(h)(2). In
such a case, the area need only implement the control
measures required of a “marginal” area, no matter how
severe its ozone pollution. Id. § 7511a(h)(1).
These modifications to the general reclassification scheme
of Subpart 2 show that Congress was well aware of the
transport problem and it devised a particular solution to
it. Congress’s solution, however, was not as sweeping as
the EPA now would like; instead it relies on exemptions
and extensions only in limited circumstances. In most
cases, Congress expected that transport problems could
be solved by requiring SIPs to include mechanisms to
stop emissions that contribute to nonattainment in other
states, id. § 7410(a)(2)(D), and by permitting states to
petition the EPA to impose controls on emissions sources
in other states that are shipping pollution their way, id.
§ 7426(b). Thus, under the scheme Congress envisioned,
Missouri, Illinois, and other downwind states have num-
erous remedies to explore if they are burdened by tran-
sport: (1) they may seek to qualify for an exemption as
a rural transport area or an area affected by interna-
tional pollution; (2) they may seek a two-year extension
of their deadline; or (3) they may petition the EPA to
impose further controls on emissions sources in upwind
states.
Of course, St. Louis is not a rural area, nor is it affected
by pollution from Canada or Mexico (as far as we know),
12 Nos. 01-2844, 01-2845
and a two-year extension at this point is unhelpful. That
is why it turned to the EPA’s Extension Policy. Neither
Illinois nor Missouri has ever exercised its § 7426(b) pow-
ers to request a halt to Kentucky’s pollution. The states
point out that this provision would have done them little
good since at the time St. Louis’s deadline expired in 1996
the OTAG study had not yet been completed, and this
study apparently provides the only evidence that Ken-
tucky pollution affects St. Louis in any way. Still, nothing
in the CAA required either the formation of OTAG, which
EPA organized in 1995 in response to a recommenda-
tion from the Environmental Council of the States, or im-
plementation of the OTAG Study. 62 Fed. Reg. 60,318,
60,323. Congress did request that the EPA study the role
of ozone precursors in ozone formation, see 42 U.S.C.
§ 7511f, but nothing links the results of this study in
any way to the bump-up provisions of § 7511(b)(2). Instead,
all indications are that Congress created a comprehen-
sive system of exceptions to its fairly rigid scheme, none
of which even remotely resembles the Extension Policy.
When Congress creates some exceptions to a statute, it
is presumed that this list is intended to be exclusive.
Russello v. United States, 464 U.S. 16, 23 (1983).
The EPA relies on a single case, NRDC v. EPA, 22 F.3d
1125, 1135-37 (D.C. Cir. 1994), for the proposition that
it may extend CAA deadlines even absent explicit statu-
tory authority, but that decision can hardly override the
far more specific guidance the Supreme Court provided
in American Trucking about this very statute. We find
NRDC inapposite in any event. NRDC extended a state
deadline that was specifically tied to an EPA publication
deadline that the agency had failed to meet. Id. at 1135.
However, the D.C. Circuit itself has rejected the proposi-
tion that this decision justifies the Extension Policy. Sierra
Club v. EPA, 294 F.3d 155, 161-62 (D.C. Cir. 2002) (reject-
ing application of Extension Policy to Washington metro-
Nos. 01-2844, 01-2845 13
politan area). Like our sister circuit, we find no statutory
basis for concluding that the bump-up provision was
somehow tied to the EPA’s ability to restrict ozone trans-
port or that Congress did not want bump-ups to occur
until the NOx SIP Call (nowhere mentioned in the statute)
went into effect.
Indeed, we take issue with the EPA’s most basic premise:
that the CAA harbors within its structure a broad intent
never to impose penalties on states burdened by tran-
sport. The initial classification scheme rigidly categorized
non-rural areas based on their 1989 air quality without
taking transport into account except in the limited case
of an area very close to the border between classes. 42
U.S.C. § 7511(a)(4). Thus, a heavy industrial area that
produced all its own pollution and a light urban area
that produced relatively little pollution but that received
huge amounts of pollutant blown in from that industrial
area could easily both receive the same classification
and have to implement the same controls, even though a
more cost-effective solution might have been to put more
controls in the first area and fewer in the second. Congress,
however, did not want to wait around for the EPA to
determine how much, if any, of an area’s pollution was the
result of transport and how much was home-grown. It
chose a more rough-and-ready approach to classification
in § 7511(a)(1). It also specified concrete deadlines and
mandated that areas failing to meet those deadlines
“shall be reclassified.” Id. § 7511(b)(2)(A). Faced with such
clear language, we find that Congress did not delegate
to the EPA any authority to grant extensions of more
than two years based on interstate transport. See Amer-
ican Trucking, 531 U.S. at 484.
In the end, the EPA’s argument boils down to an as-
sertion that because Congress granted some exemptions,
it must have meant that the EPA could create additional
exemptions when it genuinely believed that a particular
14 Nos. 01-2844, 01-2845
area, like St. Louis, deserves them. This argument falls
flat—at least in a world where Congress holds the legisla-
tive power, agencies must operate within defined legal
boundaries, and courts must respect the legislative will.
Courts “will not presume a delegation of power based
solely on the fact that there is not an express withholding
of such power.” American Petroleum Inst. v. EPA, 52 F.3d,
1113, 1120 (D.C. Cir. 1995). Many statutes on the books
contain detailed statutory provisions designed to imple-
ment broad congressional objectives. When Congress en-
acted major welfare reforms in 1996 it specifically re-
quired states to put welfare recipients into job training
programs and mandated that a certain percentage of
those recipients be employed by a certain date for a state
to receive federal grants. See 42 U.S.C. § 607(a)(1). Under
the EPA’s logic, the Department of Health and Human
Services should feel free to decide that, because of cur-
rent economic downturns and state budget crises, states
may disregard these requirements. Or the Internal Reve-
nue Service could on its own authority provide addi-
tional tax breaks to the poor or small businesses or even
adjust tax rates on the ground that such actions will in
fact stimulate more future revenue, which is what Con-
gress really wants anyway.
No one seriously thinks that those hypothetical examples
would be approved, and for the same reason, we cannot
endorse the EPA’s position here. It is not the EPA’s prerog-
ative to disregard statutory limitations on its discretion
because it concludes that other remedies it has created
out of whole cloth are better. American Trucking, 531 U.S.
at 485; Ethyl Corp. v. EPA, 51 F.3d 1053, 1060-61 n.9 (D.C.
Cir. 1995).
Having rejected the EPA’s arguments, we turn briefly
to a separate contention pressed by several intervenors.
They allege that the Extension Policy is required by our
decision in Illinois State Chamber of Commerce v. EPA, 775
Nos. 01-2844, 01-2845 15
F.2d 1141 (7th Cir. 1985). There we vacated an agency
rule under which certain counties that were part of the
Chicago metropolitan area were included in the Chicago
nonattainment area. We found the inclusion of these
counties inappropriate because they did not contribute
significant amounts of pollution to the area, but were
only affected by transport. Id. at 1147-50. We fail to see
how this case, arising years before the 1990 CAA Amend-
ments, reflects in any way on the present situation. No-
body quibbles with St. Louis’s original designation as a
moderate nonattainment area, and, as with Chicago,
several Missouri counties that are part of the St. Louis
metropolitan area but do not contribute to nonattain-
ment are not included in the nonattainment area. This
case is not like Illinois State Chamber of Commerce,
because the EPA has not determined that St. Louis or
any counties in the area are not significantly contribut-
ing to nonattainment. It has only found that Kentucky is
contributing as well.
In sum, Congress addressed in great detail the circum-
stances under and extent to which the EPA could grant
exceptions to the nonattainment schedule. Extensions
where the failure is the result of transported ozone are
not among them. It may well be, as the EPA and the
states contend, that Congress has adopted a foolish and
uneconomical scheme. It may turn out that the addi-
tional controls that will be required because of the reclas-
sification of St. Louis to a serious nonattainment area
will cost the region millions of dollars and yet (even if
they lead to some measurable improvements in air
quality) will not permit St. Louis to attain the ozone
NAAQS sooner than 2004. But under our system of gov-
ernment, it is not our business or the EPA’s business
to rewrite a clear statute so that it will better reflect
“common sense and the public weal.” Tennessee Valley Auth.
v. Hill, 437 U.S. 153, 195 (1978). Only Congress can do
16 Nos. 01-2844, 01-2845
that. If the EPA wishes to provide St. Louis with any
classification other than serious, it must petition Congress
to change the law.
IV
Having found that the EPA’s Extension Policy is con-
trary to the unambiguous text of the CAA, we need not
consider the Sierra Club’s other arguments for review and
express no opinion upon them. The petition is GRANTED.
The June 26, 2001, rule extending St. Louis’s attain-
ment date is VACATED, and the case is REMANDED for
entry of a final rule that reclassifies St. Louis as a se-
rious nonattainment area effective immediately, and any
further proceedings consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-25-02