DC appeals court says EPA's interpretation of Clean Air Act "unambiguously correct"

Part three of a series.

When the Environmental Protection Agency (EPA) found in 2009 that greenhouse gas (GHG) emissions from motor vehicles was a threat to public health and welfare, that Endangerment Finding set into motion a set of statutory compulsions that led first to new regulations on motor vehicles and then to new regulations on power plants, cement kilns, and other major stationary sources of GHGs. As a result a significant number of states and industry groups collectively filed 26 independent petitions to the federal courts seeking to overturn these regulations. The states and industry groups focused first on the Endangerment finding itself, but as we saw yesterday, they were rebuffed by the DC Circuit Court of Appeals.

However, the states and industry groups didn’t rely exclusively on attacking the Endangerment Finding. They also argued that the EPA incorrectly interpreted the Clean Air Act with respect to regulating motor vehicle emissions. And they also made several different arguments in an attempt to convince the court that the phrase “any air pollutant” didn’t actually mean “any air pollutant.”

In every instance the court disagreed.

The EPA is correctly regulating greenhouse gas emissions from motor vehicles

Once the EPA made a finding that greenhouse gas emissions endangered public health and welfare, the EPA was required to issue regulations limiting emissions from motor vehicles (aka the “Tailpipe Rule“). The states and industry groups who petitioned the Court felt that the EPA “relied on an improper interpretation” of Section 202(a)(1) of the Clean Air Act in issuing the Tailpipe Rule. Specifically, the states and industry groups argued that the Tailpipe Rule was “arbitrary and capricious” because the EPA didn’t consider the impacts on stationary sources that would be required acquire permits as a result of the Tailpipe Rule.

Section 202(a)(1) reads as follows:

The Administrator shall by regulation prescribe… standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. Such standards shall be applicable to such vehicles and engines for their useful life…. [emphasis added]

The Court disagreed, finding that the verb “shall” “vested a non-discretionary duty in EPA” with respect to regulating motor vehicle emissions. Essentially, since the EPA found that GHGs endanger public health and welfare, and since motor vehicles emit GHGs, the EPA is compelled by the Clean Air Act to regulate GHG emissions from motor vehicles. In addition, this interpretation of the Clean Air Act’s language is also supported by the Supreme Court’s Massachusetts v. EPA decision, where the Supreme Court wrote that this was the correct way to read the Clean Air Act. According to both the DC appeals court and the Supreme Court Massachusetts v. EPA decision, the Tailpipe Rule was required.

The states and industry groups also tried to attack the Tailpipe Rule by claiming that it was superseded by or infringed upon the authority of the National Highway Traffic Safety Administration (NHTSA) to set fuel efficiency standards. But the Supreme Court rejected a similar argument with respect to the Department of Transportation in Massachusetts v. EPA, and the DC appeals court rejected the NHTSA argument using the same logic – the EPA cannot ignore its statutory duty to protect the health and welfare of its citizens just because another department has a similar or partially overlapping authority.

In addition to these two arguments, the industry groups argued that the EPA didn’t “justify the Tailpipe Rule in terms of the risk identified in the Endangerment finding.” But the Court concluded that this was incorrect, finding that “factual proof of actual harm” was not required to meet the standard set in the Clean Air Act, a “significant risk of harm” was sufficient. And the Court wrote that the “EPA made such a determination in the Endangerment Finding, concluding that vehicle emissions are a significant contributor to domestic greenhouse gas emissions.”

The industry groups also argued that the EPA didn’t “show that the proposed standards ‘would meaningfully mitigated the alleged endangerment.'” The Court disagreed with this point too, finding that the preamble of the Tailpipe Rule describes just how meaningful the mitigation of GHG emissions would be: “EPA estimated that the Rule would result in a reduction of about 960 million metric tons of CO2e emissions over the lifetime of the model year 2012–2016 vehicles affected by the new standards.”

The last argument that the state and industry petitioners made against the Tailpipe Rule was that the EPA had to include the costs of stationary sources (such as power plants, industrial kilns, etc.) before it could issue the Tailpipe Rule, and that the EPA had failed to do so. The Court again disagreed, pointing out that a long history of precedence at the DC appeals court held that “only the cost to the motor-vehicle industry to come into compliance with the new emission standards” had to be considered in the process of crafting the regulations. The EPA was not required to consider any other costs.

The EPA has interpreted the phrase “any air pollutant” correctly

Once the Tailpipe Rule was enacted, the Clean Air Act automatically required that stationary sources, specifically “major emitting facilities” that exceed certain thresholds of the newly regulated GHGs, purchase emission permits. As the Court pointed out, the EPA held since 1978 that this applies to “any air pollutant regulated under the Clean Air Act.” The industry groups disagreed with this longstanding interpretation and argued that the phrase “any air pollutant” could have a “far more circumscribed meaning.” And if the phrase was less all-encompassing, the industry groups contended, the EPA wouldn’t have extended the required permitting program to major stationary emitters of GHGs.

The court again disagreed with the industry groups. The Court found that the EPA’s interpretation “is statutorily compelled” and that the Clean Air Act is “unambiguous” on this point. To support this conclusion, the court found that “Congress’s use of the broad, indiscriminate modifier “any” thus strongly suggests that the phrase “any air pollutant” encompasses greenhouse gases” since GHGs were found in the Endangerment Finding to be “air pollutants” as the Clean Air Act defines them. Furthermore, this same interpretation was made by the Supreme Court in Massachusetts v. EPA.

The court put it succinctly:

we have little trouble concluding that the phrase “any air pollutant” includes all regulated air pollutants, including greenhouse gases. [emphasis original]

But just to foreclose any further argument on this point, the court pointed out that the Clean Air Act permitting section has a statement of purpose that expressly defines the purpose of the permits as a way to “protect public health and welfare,” and that the definition of “welfare” used in the Clean Air Act specifically includes weather and climate:

All language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate… (Section 302(h)) [emphasis added]

And since Congress specifically included effects on climate in the definition of public “welfare,” it’s hard to argue that GHGs should be excluded from the permitting process for air pollutants.

Another argument made by the industry groups focused on the permitting program defined by the Clean Air Act. According to the industry groups, the regional focus of that program required a “greenhouse gas exclusive interpretation of ‘any air pollutant.'” The industry groups attempted to bolster this position by saying that the focus on “the air people breath” and the phrase “in each region” “suggests that Congress was concerned about local, not global, effects” when it set up the permitting program.

Again the court disagreed, pointing out first that the Supreme Court rejected a similar argument in Massachusetts v. EPA where it held that “this was a plainly unreasonable reading of a sweeping statutory provision designed to capture any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air.'” And as with previous arguments, the Clean Air Act clearly includes both weather and climate as constituents of the public welfare. As a result, the court finds itself in agreement with the Supreme Court when it writes that the industry groups’ “as-exclusive interpretation of “pollutant” is “a plainly unreasonable reading” of the statute.”

The industry groups then went on to argue that only facilities which emit lots of other pollutants should have to comply with the GHG limits. If a facility emitted lots of GHGs but, for example, no sulfur compounds, then that facility would not be subject to the permitting requirements for “major emitting” stationary sources of pollution.

The court disagreed yet again. While the court agreed that, in certain cases, the phrase “any air pollutant” could be more narrowly interpreted, it disagreed with the industry groups that this was one of those cases. The industry groups supported their claim in part with a reference to a section of the Clean Air Act that relates to visibility-limiting pollutants such as haze. In that case, the court concluded that it was reasonable to interpret “any air pollutant” to mean any visibility-limiting pollutant.

In addition, the court pointed out that the visibility portions and the permitting portions of the Clean Air Act are written differently, suggesting that they are mean to be interpreted differently.

In [the visibility section], the phrases “any air pollutant” and “in any area to which this part applies” appear next to one another, and it is the concentration of the pollutant in an area that matters. In the [permitting section], the phrases appear in different subsections and it is the location of the facility that matters.

As a result, the court concluded that “Congress thus clearly knew how to promulgate a narrow, pollutant-specific definition of ‘any air pollutant.’ That it did so in Part D but not in Part C strongly suggests that the phrase ‘any air pollutant’ in Part C was meant to be construed broadly.”

Once the EPA makes a finding of endangerment from an air pollutant that is emitted by motor vehicles, the Clean Air Act compels that the EPA formulate regulations for controlling the motor vehicle emissions of that pollutant. And as soon as the motor vehicle regulations are published, the Clean Air Act then compels the EPA to formulate regulations for limiting the emissions of the pollutant from stationary emission sources such as power plants. This is the normal state of affairs when it comes to air pollutants.

The states and industry groups who were hoping to overturn this normal state of affairs failed to convince the appeals court that there was any reason to do so. In fact, every argument made in support of limiting the expanse of the phrase “any air pollutant” and every argument claiming the motor vehicle rule was found to be without merit and in every case the EPA’s interpretation of the Clean Air Act was found to be “unambiguously correct.”


Arbitrary: A decision that was made without regard for facts or circumstances and with a disregard for evidence (source).
Capricious: A decision that was made based on what the decisionmaker wanted to do, rather than what the evidence said was appropriate (source).
Endangerment Finding: According to Section 202(a)(1), the Administrator of the EPA is mandated to regulate any air pollutant that “in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” When an air pollutant is identified as endangering public health or welfare, that’s an “endangerment finding.” In the case of this and related articles, the “Endangerment Finding” is the EPA’s finding that a combination of six greenhouse gases in particular qualify as an air pollutant as defined by the Clean Air Act.
Petition/Petitioner(s): A request to the Federal Courts for redress of grievances is known as a “petition,” and the term comes from the First Amendment of the United States Constitution. A “petitioner” is an individual, state, or organization that has petitioned the government for redress of grievances.
Standing: This is the law doctrine that states that only people who have been injured in some way have the right to sue for damages or changes to the law. Individuals who do not have a stake in the outcome of the suit are not permitted to enter into a lawsuit because they lack “standing.” For much more information, please see the definition at the Free Dictionary’s Legal Dictionary.

Image Credits:
United States Court of Appeals for the District of Columbia Circuit

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