Delaware Department of Natural Resources v. EPA , 895 F.3d 90 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 2017 Decided July 10, 2018
No. 16-1230
DELAWARE DEPARTMENT OF NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
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 for the Court filed by Circuit Judge GRIFFITH.
2
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
3
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.
4
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 “marginal nonattainment” and set its
attainment date for July 20, 2015.
Around the time of that date, EPA received requests from
Maryland, New Jersey, and Pennsylvania for a one-year
extension under 42 U.S.C. § 7511(a)(5). In their requests,
Maryland and Pennsylvania certified that they had complied
with their SIPs. Although Delaware had not submitted any such
request, EPA proposed a rule finding the entire Philadelphia
Area eligible for a one-year extension. See Determinations of
Attainment by the Attainment Date, 80 Fed. Reg. 51,992,
51,996-97 (Aug. 27, 2015). EPA explained that under
§ 7511(a)(5), if “any state with jurisdiction over the
nonattainment area requests such extension, the Agency will
consider granting the request provided that the criteria in
[§ 7511(a)(5)(A), (B)] are met for all of the governing states.”
In other words, EPA maintained that “application by any State”
in § 7511(a)(5) could be satisfied by application of fewer than
all states in a multistate nonattainment area. However, EPA
also concluded an area could not qualify for an extension unless
every state in a nonattainment area—including those that had
never submitted a request—complied with its own SIP. Even
though Delaware decided not to request an extension, EPA
5
proposed finding that the state had complied with its ozone SIP.
See J.A. 19; see also 80 Fed. Reg. at 51,997 n.10.
Before granting the extension, EPA received comments
from Delaware and environmental groups. Delaware
commented that it “would like to support EPA’s proposal
because the only alternative . . . appears to be a ‘bump-up’ of
portions of Delaware to a moderate nonattainment
classification.” But Delaware also criticized EPA for focusing
on attainment-date extensions instead of taking direct action
against ozone emissions from upwind states that Delaware
believed were responsible for the Philadelphia Area’s
continued inability to reach attainment.
Meanwhile, the environmental groups EarthJustice and
Sierra Club argued that EPA’s proposed extension would be
unlawful because Delaware had not joined in the request. The
groups interpreted § 7511(a)(5) to permit extensions for
multistate areas only when every state in the area applies for an
extension. The groups highlighted that EPA had previously
required unanimity when states in a multistate nonattainment
area request a voluntary “bump-up” to a higher nonattainment
subcategory. The groups also argued that an extension would
be arbitrary and capricious because EPA failed to find that the
four Philadelphia Area states had “complied with all
requirements and commitments pertaining to the area in [their
SIPs].” 42 U.S.C. § 7511(a)(5)(A). Instead, EPA unreasonably
relied on self-certifications of compliance made by Maryland
and Pennsylvania. Moreover, according to the groups, nothing
in the record suggested Delaware or New Jersey was in
compliance, and neither claimed it was.
In May 2016, EPA promulgated its final rule granting the
Philadelphia Area a one-year extension to meet the 2008 ozone
NAAQS. See Determinations of Attainment by the Attainment
6
Date, 81 Fed. Reg. 26,697 (May 4, 2016). EPA addressed each
of the environmental groups’ critiques. First, EPA explained
that its decision to grant the extension was reasonable because
requiring unanimity among affected states for an attainment-
date extension is different than requiring unanimity when
“bumping up” a classification. See id. at 26,701-02. In
particular, extending an attainment date “imposes no additional
obligation upon any state” while a voluntary reclassification
“can impose significant new attainment planning and emission
reduction obligations.” Id. at 26,702.
Furthermore, EPA maintained that it could reasonably rely
on Maryland’s and Pennsylvania’s self-certifications of SIP
compliance. EPA appealed to the “state and federal partnership
in implementing the [Act]” to justify the agency’s reliance on
the self-certifications. Id. at 26,704. EPA further indicated that
absent any “demonstration that suggests any of the states
receiving an attainment date extension are not in compliance
with their SIPs . . . EPA is disinclined to invalidate the
certifications made by the states.” Id.
EPA also responded that when states fail to certify their
compliance, the agency still has authority under the Act to
apply “its own knowledge and expertise” and conduct an
independent review. Id. at 26,702. EPA reviewed Delaware’s
and New Jersey’s applicable SIPs and determined that no
enforcement actions were pending against the states for
noncompliance with them. Therefore, EPA concluded that both
states had met the compliance requirement of § 7511(a)(5)(A).
Id. at 26,703.
In July 2016, Delaware filed a petition for review of EPA’s
May 2016 rule with this court, raising essentially the same
arguments made by the environmental groups during the
rulemaking. We have jurisdiction under the Act. 42 U.S.C.
7
§ 7607(b)(1); see also Dalton Trucking, Inc. v. EPA, 808 F.3d
875, 879 (D.C. Cir. 2015).
II
On our own motion, we asked the parties to address
whether Delaware’s comments during the rulemaking
precluded it from obtaining judicial review of EPA’s final rule
extending the attainment date for the Philadelphia Area. After
hearing argument on the matter, we are persuaded that
Delaware may petition this court for review of EPA’s decision.
A petitioner may not “take a position in this court opposite
from that which it took below, particularly when its position
has prevailed before the agency.” S. Pac. Transp. Co. v. ICC,
69 F.3d 583, 588 (D.C. Cir. 1995). Our application of this
principle in South Coast Air Quality Management District v.
EPA, 472 F.3d 882 (D.C. Cir. 2006), is instructive. Ohio had
commented during an EPA rulemaking that the agency’s
proposed approach “would be a reasonable interpretation” of
the Act. Id. at 891. Then, before this court, Ohio argued that
the very approach it had deemed reasonable during the
rulemaking was, in fact, unreasonable. See id. We held that
Ohio’s obvious about-face rendered its claims forfeited. Id. at
892.
Here, Delaware’s comments during EPA’s rulemaking are
far less definitive than were Ohio’s in South Coast. On the one
hand, some of Delaware’s comments suggested that Delaware
supported EPA’s proposal. See J.A. 56 (stating that Delaware
“would like to support EPA’s proposal” but only because the
alternative was to bump up areas in Delaware to a moderate
nonattainment classification). On the other hand, some of
Delaware’s other comments suggested opposition to EPA’s
proposed rule. See id. (describing circumstances when an
8
attainment-date extension would make sense but concluding
“[t]his is not the case here”); J.A. 57 (criticizing EPA’s focus
on extending the Philadelphia Area’s attainment date and
urging EPA to dedicate its resources to improving air quality
more directly).
Fairly read, Delaware’s letter cannot reasonably support
an inference that Delaware “supported” the proposed rule
during the comment period. Delaware’s core comments
questioned the agency’s tactic of delaying attainment by
extending the deadline. At best, Delaware’s letter is ambiguous
or equivocal on whether it ultimately wanted EPA to grant an
extension. Delaware’s comments during the rulemaking
therefore do not exhibit the sort of clear contradiction present
in South Coast. Moreover, Delaware’s comments during the
rulemaking did not even address—let alone contradict—the
legal arguments the state now brings before our court.
Because Delaware’s current litigating position is not
“opposite” to that which it took before the agency, the state has
not forfeited its right to petition for judicial review. We thus
proceed to the merits of Delaware’s challenge.
III
A
Delaware argues that 42 U.S.C. § 7511(a)(5) precludes
EPA from considering an attainment-date extension for a
multistate area when not all states in the area have asked for it.
Delaware’s challenge to EPA’s statutory interpretation is
governed by Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). We initially determine
whether Congress “has directly spoken to the precise question
at issue,” in which case we “give effect to the unambiguously
9
expressed intent of Congress.” Id. at 842-43. If the statute is
“silent or ambiguous,” we then consider “whether the agency’s
answer is based on a permissible construction” of the statute.
Id. at 843.
To determine whether § 7511(a)(5) is unambiguous, we
“must first exhaust the ‘traditional tools of statutory
construction.’” Nat. Res. Def. Council, Inc. v. Browner, 57 F.3d
1122, 1125 (D.C. Cir. 1995) (quoting Chevron, 467 U.S. at 843
n.9). For example, we must look not only to “the particular
statutory language at issue,” but also “the language and design
of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486
U.S. 281, 291 (1988); see also County of Los Angeles v.
Shalala, 192 F.3d 1005, 1014 (D.C. Cir. 1999). The Supreme
Court has stressed time and time again that “[i]n expounding a
statute, we must not be guided by a single sentence or member
of a sentence, but look to the provisions of the whole law.” U.S.
Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S.
439, 455 (1993) (quoting United States v. Heirs of Boisdore,
49 U.S. (8 How.) 113, 122 (1849)). Therefore, when one
statutory provision informs the meaning of another at issue, we
must apply interpretive tools to both. See Halverson v. Slater,
129 F.3d 180, 184-85 (D.C. Cir. 1997).
B
Delaware contends that the unambiguous meaning of
§ 7511(a)(5) provides that EPA can grant an extension of an
attainment date for a multi-state area only when every state in
that area asks for it. Because Delaware never asked to extend
the Philadelphia Area’s deadline, so the argument goes, EPA
acted contrary to the statute. We disagree.
An attainment-date extension may be granted by EPA
“[u]pon application by any State.” 42 U.S.C. § 7511(a)(5)
10
(emphasis added). The parties dispute how to understand the
term “any State” in the context of multistate areas. Delaware
argues that “any State” means every state in a multistate area.
EPA maintains that “any State” means that any one of the states
in the multistate area can apply for an extension for the entire
area.
The word “any” has an “expansive meaning” that usually
indicates “one or some indiscriminately of whatever kind” as
long as there is “no reason to contravene [its] obvious
meaning.” New York v. EPA, 443 F.3d 880, 885 (D.C. Cir.
2006) (emphasis added) (first quoting United States v.
Gonzales, 520 U.S. 1, 5 (1997); then quoting Norfolk S. Rwy.
Co. v. Kirby, 543 U.S. 14, 31-32 (2004)); see also Freeman v.
Quicken Loans, Inc., 566 U.S. 624, 635 (2012); Fin. Planning
Ass’n v. SEC, 482 F.3d 481, 488 (D.C. Cir. 2007). This
expansive reach of “any” also applies when construing the Act
specifically. See New York, 443 F.3d at 885-86; see also Nat.
Res. Def. Council v. EPA, 755 F.3d 1010, 1019 (D.C. Cir.
2014); New Jersey v. EPA, 517 F.3d 574, 582 (D.C. Cir. 2008).
If “any” can refer to “one or some” members of a class, then it
should naturally permit EPA to grant an extension under
§ 7511(a)(5) when only “one or some” states in a multistate
area submit an application.
That said, depending on the context, “any” can mean
“every,” as Delaware argues. For example, very recently, the
Supreme Court held that in the context of a different statute,
“as in so many others, ‘any’ means ‘every.’” SAS Inst., Inc. v.
Iancu, 138 S. Ct. 1348, 1353 (2018). But again, when it comes
to determining a term’s unambiguous meaning, context is key.
See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).
As the Court noted in SAS Institute, “any” meant “every” in
that statute largely because it was used to modify a “singular
noun in [an] affirmative context[].” 138 S. Ct. at 1354 (quoting
11
Oxford English Dictionary (3d ed., Mar. 2016),
www.oed.com/view/Entry/8973). Consider, for example, a
statute that read, “Any state that misses an attainment deadline
will be bumped up.” In that affirmative context, “any” clearly
means “every.” Here, however, we have a conditional
context—as EPA may grant an extension upon the application
of any state. When modifying a “singular count noun” (like
“State”) in this context, the word “any” generally refers to “an
unspecified member of a particular class.” Oxford English
Dictionary, supra. Therefore, consider another statute that
read, “If any state in a multistate region violates its SIP, the
entire region will be bumped up.” There, “any” would not
naturally mean “every.” It would instead refer to an
“unspecified member” of the multistate region, which could be
but a single state. Because § 7511(a)(5) similarly uses “any” in
a conditional context, it unambiguously indicates that not every
state need apply for an attainment-date extension in order for
EPA to grant one.
Nevertheless, Delaware argues that reading the term “any
State” alongside the rest of § 7511(a)(5) yields a different
unambiguous meaning. Section 7511(a)(5) specifies that after
“any State” has requested an extension, that extension can be
granted only if “the State has complied with all requirements
and commitments pertaining to the area in the applicable
[SIP].” 42 U.S.C. § 7511(a)(5)(A) (emphasis added). Delaware
interprets “the State” in § 7511(a)(5)(A) to refer back to “any
State” that applied for an extension under § 7511(a)(5).
Therefore, “[e]ither all states have to apply and all states have
to be in compliance with their SIPs, or only one state has to
apply and only that state has to be in compliance with its SIP.”
Del. Br. 21. Of those two options, Delaware advocates for the
former. For its part, EPA rejects both options and maintains
that while not every state in a nonattainment area must apply
for an extension under § 7511(a)(5), every state in that area
12
must comply with its SIP for the area to qualify for the
extension. See 81 Fed. Reg. at 26,702.
Again, because context matters, Delaware’s argument has
some force. In fact, if Delaware were correct that every state in
a multistate nonattainment area had to be SIP-compliant for
EPA to grant the area an extension, we might agree that
§ 7511(a)(5) also required every state in that area to apply for
the extension in the first place. In that case, the surrounding
text would suggest Congress departed from the otherwise plain
meaning of “any” when enacting § 7511(a)(5).
But § 7511(a)(5)(A) does not require every state to comply
with its SIP. It is “well established” that “the” “particularizes
the subject which it precedes” and acts as a “word of
limitation.” Am. Bus Ass’n v. Slater, 231 F.3d 1, 4-5 (D.C. Cir.
2000) (quoting Brooks v. Zabka, 450 P.2d 653, 655 (Colo.
1969) (en banc)). In other words, “the” narrows the class of
states that must comply with their SIPs to those specific states
that already submitted applications for extension requests. The
scope of SIP-complying states is restricted to the scope of
extension-applying states. And as we discussed, the natural
meaning of “any State” in § 7511(a)(5) does not, read alone,
require every state in a multistate area to apply for an extension.
Section 7511(a)(5)(A)’s use of “the State” cannot possibly
refer to a broader class of states that must comply with their
SIPs than the class of applying states. If every state had to
comply with its SIP, “the” would serve no limiting role.
Therefore, the only states that are required to comply with their
SIPs are those that applied for an extension.
Additionally, we strive to construe statutes “so that effect
is given to all its provisions, so that no part will be inoperative
or superfluous, void or insignificant.” Corley v. United States,
556 U.S. 303, 314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88,
13
101 (2004)). If there is “only one statutory reading that gives
full effect” to the entirety of § 7511(a)(5), we will adopt it so
long as other tools of statutory interpretation do not overcome
that interpretation. Friends of Blackwater v. Salazar, 691 F.3d
428, 447 (D.C. Cir. 2012). Our interpretation of § 7511(a)(5)
gives full effect to both the determiner “any” and the definite
article “the”: Fewer than all states in a nonattainment area can
apply for an extension, and only those applying states must
demonstrate compliance with their own implementation plans.
This reading captures both the expansiveness of “any State”
and the particularity of “the State,” a harmonization neither
Delaware nor EPA achieve with their readings of § 7511(a)(5).
Delaware’s interpretation misreads both “any State” and “the
State,” and EPA’s interpretation correctly reads “any State”
while missing the mark on “the State.” Our interpretation gets
both right.
Neither Delaware nor EPA has demonstrated why this
literal interpretation should not control. To “avoid a literal
interpretation at Chevron step one,” a party “must show either
that, as a matter of historical fact, Congress did not mean what
it appears to have said, or that, as a matter of logic and statutory
structure, it almost surely could not have meant it.” Engine
Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1089 (D.C. Cir. 1996).
Delaware suggests that it is “improbable” Congress intended
for EPA to grant extensions in a multistate area without
requiring each state to comply with its individual SIP. Del. Br.
21. But improbability alone cannot “overcome th[e] plain
meaning presumption” applicable at Chevron’s first step. Va.
Dep’t of Med. Assistance Servs. v. HHS, 678 F.3d 918, 923
(D.C. Cir. 2012).
Therefore, we resolve this statutory question at Chevron
Step One. Read in light of its surrounding language, “any
State” unambiguously permits EPA to consider an application
14
filed by fewer than all states in a multistate nonattainment area.
The plain meaning of “the State” refers to the state (or states)
that applied for the extension, and assumes that a single state
can validly apply for an extension. This use of “the State”
confirms that only the applying state or states must comply
with the relevant SIPs for EPA to consider granting an
extension to a multistate area. And if only one state can file an
extension request under § 7511(a)(5), then Delaware did not
need to file a request for EPA to consider granting an extension
to the Philadelphia Area.
Three states—Maryland, New Jersey, and Pennsylvania—
filed applications to extend the Philadelphia Area’s attainment
date. EPA thus had statutory authority under § 7511(a)(5) to
grant the states’ requests, even though Delaware was not
among them.
IV
Delaware raises two arbitrary-and-capricious challenges
to EPA’s decision extending the Philadelphia Area’s
attainment date. First, because New Jersey never claimed nor
demonstrated compliance with its SIP, EPA could not
reasonably conclude that the state had satisfied
§ 7511(a)(5)(A).* Second, EPA could not reasonably rely on
* Delaware also argues that EPA acted arbitrarily and
capriciously when concluding that Delaware complied with its own
SIP. Given our interpretation of § 7511(a)(5)(A), EPA was not
required to determine Delaware’s compliance with its SIP. See supra
Part III.B. Even so, we will assume that EPA nevertheless retained
discretion to consider Delaware’s compliance, given that the Act
only dictates that EPA “may” grant an extension when the statute’s
requirements are met. 42 U.S.C. § 7511(a)(5). To the extent that EPA
exercised discretion when considering Delaware’s compliance, that
action is still subject to arbitrary-and-capricious review. See, e.g.,
15
Maryland’s and Pennsylvania’s certifications of compliance
with their SIPs without also collecting and considering
evidence of their actual compliance.
A
The Act’s judicial-review provision does not address the
standard for reviewing decisions regarding attainment-date
extensions. See 42 U.S.C. § 7607(d)(1). Therefore, the
Administrative Procedure Act’s (APA’s) standards govern
Delaware’s challenge. See Carus Chem. Co. v. EPA, 395 F.3d
434, 441 (D.C. Cir. 2005) (explaining that when the relevant
statute does not specify an applicable standard of review, we
“proceed under the standard prescribed by the [APA]”). The
APA requires us to hold unlawful and set aside EPA’s decision
if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
Our review is “highly deferential” and “presumes agency
action to be valid.” Am. Wildlands v. Kempthorne, 530 F.3d
991, 997 (D.C. Cir. 2008) (quoting Ethyl Corp. v. EPA, 541
F.2d 1, 34 (D.C. Cir. 1976) (en banc)). We will uphold EPA’s
action “if the record shows EPA considered all relevant factors
and articulated a ‘rational connection between the facts found
and the choice made.’” Catawba County v. EPA, 571 F.3d 20,
41 (D.C. Cir. 2009) (per curiam) (quoting Burlington Truck
Lines v. United States, 371 U.S. 156, 168 (1962)).
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Auto. Ins.
Co., 463 U.S. 29, 48 (1983) (stating that an “agency must cogently
explain why it has exercised its discretion in a given manner” to
satisfy the Administrative Procedure Act’s arbitrary-and-capricious
standard (emphasis added)). We ultimately conclude that EPA’s
assessment of Delaware’s compliance was not arbitrary or capricious
for the same reasons supporting why its assessment of New Jersey’s
compliance was not arbitrary or capricious. See infra Part IV.B.
16
We give an “extreme degree of deference” to EPA when it
is “evaluating scientific data within its technical expertise,”
City of Waukesha v. EPA, 320 F.3d 228, 247 (D.C. Cir. 2003)
(internal quotation marks and citation omitted), and deference
“is especially appropriate when EPA ‘acts under unwieldy and
science-driven statutory schemes like the Clean Air Act,’”
Nat’l Biodiesel Bd. v. EPA, 843 F.3d 1010, 1018 (D.C. Cir.
2016) (quoting Bluewater Network v. EPA, 372 F.3d 404, 410
(D.C. Cir. 2004)).
B
Because New Jersey did not submit a certification of its
SIP compliance, EPA applied “its own knowledge and
expertise with regard to whether the state is meeting [its SIP]
obligations, including a review of whether [EPA] or outside
parties has identified state noncompliance with the
obligations.” 81 Fed. Reg. at 26,702. EPA reviewed the ozone
SIP for New Jersey and determined that there were no pending
enforcement actions alleging that the state had failed to
implement its EPA-approved SIP. See id. at 26,702-03. This
approach for determining compliance evinces a “rational
connection between the facts found and the choice made,”
Burlington Truck Lines, 371 U.S. at 168, because it is rational
for EPA to conclude that an absence of enforcement actions
against a state is a reasonable proxy for SIP compliance. This
is especially so given that no commenter during the rulemaking
had “presented any evidence or made any demonstration”
suggesting that New Jersey was out of compliance with its SIP.
81 Fed. Reg. at 26,703. And Delaware offers no serious
argument now to impeach EPA’s approach.
Instead, Delaware argues that the attainment-date
extension was arbitrary and capricious because EPA had
17
recognized in another proposed rule that New Jersey’s SIP was
itself “substantially inadequate.” State Implementation Plans:
Response to Petition for Rulemaking, 80 Fed. Reg. 33,840,
33,846 (June 12, 2015). In June 2015, EPA promulgated a final
rule requiring thirty-six states, including New Jersey, to cure
certain inadequacies in their respective SIPs. Id. at 33,847.
Delaware believes that once EPA identified “substantial
deficiencies” in New Jersey’s SIP, EPA could not reasonably
grant an extension for the Philadelphia Area under
§ 7511(a)(5)(A).
But the text of § 7511(a)(5)(A) requires only that an
applying state in a nonattainment area comply with the
requirements in its “applicable [SIP].” As our sister circuit
concluded when faced with a nearly identical provision of the
Act, “The statute requires the state to have ‘complied with all
requirements and commitments pertaining to that area in the
implementation plan,’ not the [Act].” Vigil v. Leavitt, 381 F.3d
826, 846 (9th Cir. 2004) (emphasis in Vigil) (quoting 42 U.S.C.
§ 7513(e)). Since at least 1994, EPA has similarly interpreted
§ 7511(a)(5)(A) to require compliance with “the EPA-
approved SIP.” As such, we conclude that EPA did not act
arbitrarily or capriciously when requiring New Jersey to
comply only with its EPA-approved SIP.
C
Delaware also argues that Maryland and Pennsylvania
could not submit certifications of compliance with their SIPs
“without evidence to substantiate [the certifications].” Del. Br.
29. EPA maintains that under § 7511(a)(5)(A) the agency may
rely on the “certified statements of its state counterparts,” 81
Fed. Reg. at 26,704, unless “evidence is properly before the
agency during the rulemaking process that warrants a different
finding,” EPA Br. 29; see also 81 Fed. Reg. at 26,704. Absent
18
any contrary evidence in the record, EPA accepted Maryland’s
and Pennsylvania’s certifications. See 81 Fed. Reg. at 26,704.
Because § 7511(a)(5)(A) is “silent” as to how a state may
demonstrate compliance with its SIP, Chevron, 467 U.S. at
843, EPA’s decision regarding state certification is permissible
if reasonable in this context, Int’l Bhd. of Teamsters v. U.S.
Dep’t of Transp., 724 F.3d 206, 215 (D.C. Cir. 2013). EPA’s
presumptive reliance on state certification is reasonable
because it is an efficient allocation of the agency’s limited
resources and personnel, see Massachusetts v. EPA, 549 U.S.
497, 527 (2007), and because EPA retains discretion to look
beyond the certification if other evidence gives it reason to
doubt the certification’s credibility.
Moreover, the Act is “an exercise in cooperative
federalism.” Dominion Transmission, Inc. v. Summers, 723
F.3d 238, 240 (D.C. Cir. 2013). While the Act authorizes EPA
to establish NAAQS, it delegates to states the responsibility for
implementing those standards. Michigan v. EPA, 268 F.3d
1075, 1078 (D.C. Cir. 2001). Delaware’s attempt to prevent
EPA from presumptively relying on states’ certifications of
compliance with their own SIPs would undermine the agency’s
efforts to cooperate with the states. If anything, the federalist
design of the Act supports the reasonableness of EPA’s
practice. See 81 Fed. Reg. at 26,704 (explaining that EPA’s
reliance on the states’ certifications is reasonable in light of
“the state and federal partnership in implementing the [Act]”).
Finally, Delaware argues that Maryland and Pennsylvania
were not in compliance with their SIPs because those SIPs
lacked certain provisions required by 42 U.S.C.
§ 7511c(b)(1)(B). This argument was forfeited because no
commenter raised it before the agency during rulemaking. See
Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 562 (D.C. Cir.
19
2002). In any event, Delaware’s argument also relies on an
affidavit from Ronald Amirikian, an employee of the Delaware
Department of Natural Resources & Environmental Control’s
Air Quality Division, produced months after EPA promulgated
its final rule extending the Philadelphia Area’s attainment date.
However, it is “black-letter administrative law” that a
reviewing court cannot consider information that was
unavailable to the agency when it made its decision. Hill
Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013)
(quoting Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d
788, 792 (D.C. Cir. 1984)). Because EPA could not have
considered the Amirikian affidavit during the rulemaking
process, we will not consider it now. And even if Maryland’s
and Pennsylvania’s SIPs lacked the provisions required by
§ 7511c(b)(1)(B), that fact would only demonstrate that the
states’ SIPs were inadequate, which does not matter for
purposes of § 7511(a)(5)(A). See supra Part IV.B.
V
For the foregoing reasons, the petition for review is
Denied.