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Sierra Club v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

October 24, 2017

Sierra Club, et al., Petitioners
v.
Environmental Protection Agency and E. Scott Pruitt, Administrator, U.S. Environmental Protection Agency, Respondents

          Argued September 19, 2017

         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.

          OPINION

          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 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] ...

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