West Virginia v. U.S. Envtl. Prot. Agency

90 F.4th 323

State of WEST VIRGINIA, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Michael S. Regan,Administrator, United States Environmental Protection Agency, Respondents.Appalachain Mountain Club; Sierra Club, Amici Supporting Respondents.

No. 23-1418

United States Court of Appeals, Fourth Circuit

Argued: October 27, 2023

Decided: January 10, 2024

On Petition for Review of an Order of the Environmental Protection Agency. (EPA-R03-OAR-2021-0873)

ARGUED: Michael Ray Williams, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Petitioner. Alex Jacob Hardee, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. ON BRIEF: Zachary M. Fabish, Washington, D.C., Joshua D. Smith, SIERRA CLUB, Oakland, California; Seth L. Johnson, Kathleen L. Riley, Neil Gormley, EARTHJUSTICE, Washington, D.C., for Amici Curiae.

Before NIEMEYER, THACKER, and QUATTLEBAUM, Circuit Judges.

Respondents' Motion to Transfer denied and Petitioner's Motion for Stay granted by published opinion. Judge Niemeyer wrote the opinion, in which Judge Quattlebaum joined. Judge Thacker wrote a dissenting opinion.

NIEMEYER, Circuit Judge:

On October 1, 2015, the Environmental Protection Agency ("EPA") exercised its authority under the Clean Air Act to revise the National Ambient Air Quality Standards for ozone, requiring each State to submit to the EPA a "State Implementation Plan" or "SIP" to implement the more stringent requirements. On February 4, 2019, West Virginia submitted its SIP, but the EPA, by a final action dated February 13, 2023, disapproved it, finding that the State's plan did not meet the substantive requirements of the Clean Air Act. The EPA ruled that West Virginia's SIP "fail[ed] to contain the necessary provisions to eliminate emissions that would contribute significantly to nonattainment or interfere with maintenance of the [air quality standards] in [downwind States]," namely in two States east of West Virginia. Challenging the lawfulness of the EPA's disapproval, West Virginia filed this petition for review.

The EPA has filed a preliminary motion to transfer West Virginia's petition for review to the Court of Appeals for the District of Columbia, pursuant to the Clean Air Act's venue provision, 42 U.S.C. § 7607(b)(1), or, in the alternative, to dismiss it for lack of venue. And West Virginia has filed a preliminary motion to stay the EPA's final action pending the outcome of its petition for review.

For the reasons given herein, we deny the EPA's motion to transfer or to dismiss, and we grant West Virginia's motion for a stay.

I

In furtherance of its responsibilities under the Clean Air Act "to protect and enhance the quality of the Nation's air resources," 42 U.S.C. § 7401(b)(1), the EPA established air quality standards for the emission of gases that contribute to the formation of ground-level ozone. In 2015, it revised the standards, thereby requiring each State to issue and transmit to the EPA a State Implementation Plan or SIP to comply with the revised standards. West Virginia transmitted its SIP to the EPA in February 2019, which, as relevant here, addressed the "good neighbor" provision of the Clean Air Act. That provision requires SIPs to contain adequate provisions to prohibit in-state emissions of ozone-forming gases from having specified adverse air quality effects on downwind States. See 42 U.S.C. § 7410(a)(2)(D)(i)(I).

Ozone, a molecule of three oxygen atoms (chemically, O₃), is a very unstable gas that has both beneficial and harmful effects on human health. Ozone in the stratosphere is formed from O₂ in the presence of ultraviolet light from the sun, and it protects the earth from harmful ultraviolet rays. On the other hand, ground-level ozone — formed from the oxides of nitrogen (NO_x) and volatile organic compounds (VOCs) such as hydrocarbons from fuel combustion in the presence of sunlight — is a pollutant that often manifests as smog and is harmful to human health. Thus, to reduce ground-level ozone, emissions of NO_x and VOCs from power plants, other industrial facilities, and off-road engines, as examples, would need to be reduced.

The EPA's efforts to reduce ground-level ozone are thus focused on the emissions of NO_x and VOCs. And in regulating those gases, the EPA faces the problem that gases emitted in one State often move downwind to other States, forming ozone during their exposure to sunlight. For example, as relevant in this case, ozone measured in Pennsylvania, New Jersey, and Maryland might be the product of NO_x and VOC emissions in West Virginia or Ohio. Thus, to enforce its national air quality standards, the EPA collects data at numerous monitoring points and uses those data to analyze where harmful emissions are produced and where they contribute to the formation of ground-level ozone. Federal regulations of ozone require each State to develop a SIP to demonstrate how the State will reduce gases that produce ozone.

After the EPA issued its revised 2015 air quality standards for ozone, West Virginia submitted a SIP, addressing how it planned to comply with its "good neighbor" obligations under the revised standards. The EPA, however, issued an initial proposal to reject West Virginia's SIP on February 22, 2022, offering a detailed explanation for its disapproval. And a year later, the EPA adopted its proposed reasons for rejection in a final agency action on February 13, 2023, finding West Virginia's SIP inadequate.

In its 2022 proposed rejection of West Virginia's SIP, the EPA conducted its analysis under an informal "4-step interstate transport framework," which it used to evaluate all States' SIPs. Under the first step of that framework, the EPA identifies monitoring sites having "problems attaining and/or maintaining" the established air quality standards. Under the second step, it identifies States "that impact those air quality problems in other (i.e., downwind) [S]tates," thus "link[ing]" those States with the downwind States. Under the third step, it considers "the emissions reductions necessary . . . to eliminate each linked upwind [S]tate's significant contribution to nonattainment" of the standard. And under the fourth, it considers that State's proposed enforcement measures.

Applying the 4-step framework, the EPA found, as particularized to West Virginia, that 10 monitoring sites in 5 States downwind from West Virginia reported problems of attainment, and 4 of those sites in 2 States were "linked" to West Virginia's emissions. The EPA concluded:

These data were examined to determine if West Virginia contributes at or above the threshold of 1 percent of the 2015 8-hour ozone [air quality standard] (i.e., 0.70 ppb) to any downwind nonattainment or maintenance receptor. As shown in Table 1 of this document, the data indicate that in 2023, emissions from West Virginia contribute greater than 1 percent of the [air quality standard] to nonattainment or maintenance-only receptors in Fairfield County-Westport, Fairfield County-Stratford, and New Haven County in Connecticut, as well as Bucks County, Pennsylvania.

Proposed Disapproval of West Virginia's Interstate Transport of Air Pollution Plan for the 2015 8-Hour Ozone National Ambient Air Quality Standards, 87 Fed. Reg. 9516, 9525 (proposed Feb. 22, 2022) (to be codified at 40 C.F.R. pt. 52) (footnote omitted) (the "Proposed Rule"). The EPA then assessed whether West Virginia's SIP demonstrated that it would reduce the observed emissions and concluded that the SIP did not provide an adequate response.

Addressing by category the source sites of West Virginia's emissions, it found:

Based on the EPA's evaluation of West Virginia's SIP submission, the EPA is proposing to find that West Virginia's February 4, 2019 SIP submission . . . does not meet the State's interstate transport obligations, because it fails to contain the necessary provisions to eliminate emissions that will contribute significantly to nonattainment or interfere with maintenance of the 2015 8-hour ozone [air quality standard] in any other [S]tate.

Id. at 9532.

In 2023, the EPA summarized its 2022 proposed findings in its final agency action, adopting them to conclude that West Virginia's SIP was inadequate. The EPA included its rejection of West Virginia's SIP as part of a consolidated rule rejecting the SIPs of 20 other States. See Disapprovals of Interstate Transport of Air Pollution Plans for the 2015 8-Hour Ozone National Ambient Air Quality Standards, 88 Fed. Reg. 9336, 9337-38 (Feb. 13, 2023) (to be codified at 40 C.F.R. pt. 52) (the "Final Rule"). Although calling its Final Rule a consolidated action, the EPA nonetheless reviewed each State's SIP, one by one, applying its 4-step interstate transport framework to each State's circumstances. It concluded, for the reasons applicable to the given State, that its SIP was insufficient. With respect to West Virginia in particular, it found that the State would still contribute significantly to nonattainment in, or interference with maintenance of the 2015 air quality standards for ozone in Connecticut and Pennsylvania, in violation of its good neighbor obligations. The agency accordingly disapproved West Virginia's SIP. See id. at 9360.

From the EPA's final action, West Virginia filed this petition for review.

Before briefing the merits, the EPA filed a motion to transfer West Virginia's petition to the Court of Appeals for the District of Columbia or to dismiss it based on improper venue. While the EPA recognized that the Clean Air Act fixes venue in any relevant court of appeals if its action is "locally or regionally applicable," it argued that the proper venue here is the D.C. Circuit because its action is a consolidated, "nationally applicable . . . action" or, in the alternative, that it issued a regionally applicable action "based on a determination of nationwide scope or effect." See 42 U.S.C. § 7607(b)(1).

Also before briefing, West Virginia filed a motion to...