ORAL ARGUMENT NOT YET SCHEDULED IN THE UNITED STATES...

ORAL ARGUMENT NOT YET SCHEDULED

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________

Case No. 12-1322 (and related cases Nos. 12-1312, 12-1313, 12-1316, 12-1318, and 12-1323)

________________

MISSISSIPPI COMMISSION ON ENVIRONMENTAL QUALITY, et al., Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

__________________

ON PETITION FOR REVIEW OF FINAL ACTION BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

__________________

BRIEF OF RESPONDENT-INTERVENOR ENVIRONMENTAL DEFENSE FUND

__________________

TOMÁS CARBONELL PETER ZALZAL Environmental Defense Fund 2060 Broadway St., Ste. 300 Boulder, CO 80302 (303) 447-7224 Counsel for Environmental Defense

Fund

Dated: January 15, 2014

USCA Case #12-1322 Document #1475354 Filed: 01/15/2014 of 32

i

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), Respondent-Intervenor Environmental Defense Fund (“EDF”) states as follows:

Parties, Intervenors, and Amici: All parties and intervenors are identified in

Petitioners’ briefs.

Rulings Under Review: Petitioners seek review of EPA’s final rules, “Air Quality Designations for the 2008 Ozone National Ambient Air Quality Standards,” 77 Fed. Reg. 30,088 (May 21, 2012), and “Air Quality Designations for the 2008 Ozone National Ambient Air Quality Standards for Several Counties in Illinois, Indiana, and Wisconsin; Corrections to Inadvertent Errors in Prior Designations,” 77 Fed. Reg. 34,221 (June 11, 2012). Certain Petitioners also seek review of EPA’s denial of petitions for reconsideration of these final rules, see

“Air Quality Designations for the 2008 Ozone National Ambient Air Quality Standards: Notice of Actions Denying Petitions for Reconsideration and Stay Requests,” 78 Fed. Reg. 925 (Jan. 7, 2013).

Related Cases: All related cases have been consolidated under lead case no.

12-1309.

Respectfully submitted,

/s/ Peter Zalzal Peter Zalzal Environmental Defense Fund 2060 Broadway St., Ste. 300 Boulder, CO 80302 (303) 447-7224 Counsel for Environmental Defense

Fund



ii

RULE 26.1 DISCLOSURE STATEMENT OF ENVIRONMENTAL

DEFENSE FUND

Pursuant to Fed. R. App. P. 26.1, Respondent-Intervenor Environmental

Defense Fund provides the following corporate disclosure statement.

Environmental Defense Fund (“EDF”) is a nonprofit corporation organized

and existing under the laws of the State of New York. EDF is a national

organization that links science, economics, and law to create innovative, equitable,

and cost-effective solutions to the most urgent environmental problems. It has no

parent companies, and there are no publicly held companies that have a 10 percent

or greater ownership interest in EDF. EDF does not have any outstanding shares

or debt securities in the hands of the public nor any parent, subsidiary, or affiliates

that have issued shares or debt securities to the public.

Respectfully submitted, /s/ Peter Zalzal Peter Zalzal Environmental Defense Fund 2060 Broadway St., Ste. 300 Boulder, CO 80302 (303) 447-7224 Counsel for Environmental Defense

Fund



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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............. i

RULE 26.1 DISCLOSURE STATEMENT OF ENVIRONMENTAL DEFENSE FUND ........................................................................................................................ ii

TABLE OF AUTHORITIES ................................................................................... iv

GLOSSARY ........................................................................................................... viii

STATUTES AND REGULATIONS ......................................................................... 1

BACKGROUND AND STATEMENT OF FACTS ................................................. 1

SUMMARY OF ARGUMENT ................................................................................. 6

ARGUMENT ............................................................................................................. 7

I. EPA’s Wise County Designation Comports with the Clean Air Act and is Firmly Grounded in the Record .............................................................................. 7

II. The Wise County Designation is Not Inconsistent With Other Area Designations ..........................................................................................................12

III. Texas Petitioners’ Constitutional Claims Are Groundless .........................16

A. The Commerce Clause Authorizes EPA’s Designation of Wise County ...17

B. EPA’s Wise County Designation Comports with the Tenth Amendment ..18

CONCLUSION ........................................................................................................21

CERTIFICATE OF COMPLIANCE WITH WORD COUNT ...............................22

CERTIFICATE OF SERVICE ................................................................................23


iv

TABLE OF AUTHORITIES

Cases

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ..............................................................................................20

Allied Local & Reg'l Mfrs. Caucus v. EPA, 215 F.3d 61 (D.C. Cir. 2000) ................................................................................17

ATK Launch Systems v. EPA, 669 F.3d 330 (D.C. Cir. 2012) ..............................................................................10

*Catawba Cnty., N.C. v. EPA, 571 F.3d 20 (D.C. Cir. 2009) ................................................................. 3, 7, 12, 16

Gonzales v. Raich, 545 U.S. 1 (2005) ..................................................................................................18

Hodel v. Indiana, 452 U.S. 314 (1981) ..............................................................................................17

*Hodel v. Virginia Surface Mining and Reclamation, 452 U.S. 264 (1981) ....................................................................................... 17, 19

Nat'l Ass'n of Clean Air Agencies v. EPA, 489 F.3d 1221 (D.C. Cir. 2007) ............................................................................14

Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ................................................................................... 19, 20

NCAA v. Christie, 926 F. Supp. 2d 551 (D.N.J. 2013) .......................................................................18

South Dakota v. Dole, 483 U.S. 203 (1987) ..............................................................................................20

* Authorities upon which we chiefly rely are marked with asterisks.


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Texas v. EPA, 726 F.3d 180 (D.C. Cir. 2013) ..............................................................................19

United States v. Lopez, 514 U.S. 549 (1995) ..............................................................................................18

Statutes

42 U.S.C. § 7402 ......................................................................................................17

42 U.S.C. § 7403 ......................................................................................................17

42 U.S.C. § 7407 ........................................................................................................ 7

42 U.S.C. § 7407(b) ................................................................................................... 1

42 U.S.C. § 7407(d) .............................................................................................3, 19

42 U.S.C. § 7407(d)(1)............................................................................................... 7

42 U.S.C. § 7407(d)(1)(A) ......................................................................................... 3

42 U.S.C. § 7407(d)(1)(B) ......................................................................................... 3

42 U.S.C. § 7408 ......................................................................................................17

42 U.S.C. § 7409 ..................................................................................................2, 17

42 U.S.C. § 7410 ..................................................................................................6, 17

42 U.S.C. § 7410(a) .................................................................................................19

42 U.S.C. § 7410(c) .................................................................................................19

42 U.S.C. § 7426 ......................................................................................................17

42 U.S.C. § 7470 ......................................................................................................17

42 U.S.C. § 7502 ........................................................................................................ 6


vi

42 U.S.C. § 7506 ......................................................................................................17

42 U.S.C. § 7509(b)(1).............................................................................................20

42 U.S.C. § 7509(b)(1)(A) .......................................................................................20

42 U.S.C. § 7511a ..................................................................................................3, 6

42 U.S.C. § 7511c ....................................................................................................17

Rules

73 Fed. Reg. 16,436 (Mar. 27, 2008) .....................................................................1, 2

77 Fed. Reg. 30,088 (May 21, 2012) ...................................................................5, 16

Regulations

40 C.F.R. § 52.31 .....................................................................................................20

Legislative History

S. Rep. No. 101-228, 1990 CAA Legis. Hist. 8338 (1993) ....................................... 3

Other Authorities

American Lung Association, State of the Air (2013) ................................................ 2

DFW TSD ............................................................................................. 5, 8, 9, 10, 11

Jamestown TSD .......................................................................................................14

Knoxville TSD .........................................................................................................15

Memorandum from J. Seitz, to Regions I-X, “Boundary Guidance on Air Quality Designations for the 8-Hour Ozone National Ambient Air Quality Standards,” Mar. 28, 2000 .......................................................................................................... 4


vii

Memorandum from R. Meyers, to Regions I-X, “Area Designations for the 2008 Revised Ozone National Ambient Air Quality Standards,” Dec. 4, 2008 .............. 4

N.Y. TSD .......................................................................................................... 12, 13

Pa. TSD ....................................................................................................... 14, 15, 16

Reconsideration Denial—Devon .............................................................. 8, 9, 10, 13


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GLOSSARY

Act Clean Air Act

CAA Clean Air Act

CBSA Core Based Statistical Area

CSA Combined Statistical Area

DFW Dallas-Fort Worth

DV Design Value

EML Eagle Mountain Lake

EPA Environmental Protection Agency

HYSPLIT EPA wind trajectory analysis

MPO Metropolitan Planning Organization

MSA Metropolitan Statistical Area

NAAQS National Ambient Air Quality Standards

NOx Nitrogen Oxides

PM2.5 Fine Particulate Matter

ppb parts per billion

SAM Source Apportionment Modeling

TCEQ Texas Commission on Environmental Quality

TSD Technical Support Document

VOCs Volatile Organic Compounds


1

Respondent-Intervenor Environmental Defense Fund respectfully submits

this brief in support of Respondent Environmental Protection Agency.

STATEMENT OF JURISDICTION

Petitioners invoke this Court’s jurisdiction under 42 U.S.C. § 7607(b).

STATUTES AND REGULATIONS

Pertinent statutes and regulations are set forth in the addendum to EPA’s

brief.

BACKGROUND AND STATEMENT OF FACTS

This case arises out of attempts to block EPA’s efforts to ensure air quality

in Texas communities meets national, health-based standards for ground-level

ozone or “smog.”

Ozone Pollution. Smog is a harmful air pollutant—causing aggravation of

asthma and other respiratory symptoms, decreased lung function, increased

hospital and emergency room visits for respiratory conditions—and it is associated

with premature mortality in urban areas. National Ambient Air Quality Standards

for Ozone, 73 Fed. Reg. 16,436, 16,440 (Mar. 27, 2008), JAXX. Children, the

elderly, individuals suffering from asthma, and those active outdoors are especially

vulnerable to ozone pollution. Id. The Clean Air Act (“CAA” or “Act”) requires

the Environmental Protection Agency (“EPA”) to establish and to periodically

review and revise as appropriate national, health-based standards for criteria


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pollutants (“NAAQS”), including ozone. See 42 U.S.C. § 7409. On March 27,

2008, EPA promulgated a new, strengthened 8-hour ozone NAAQS of 75 parts per

billion (“ppb”). See 73 Fed. Reg. at 16,503, JAXX.

Ozone pollution is one of the most serious and persistent public health

problems affecting Texans. In 2013, the American Lung Association reported that

Dallas-Fort Worth (“DFW”) is home to millions of people who are sensitive to

ozone-related health problems, including 1.6 million people suffering

cardiovascular disease; nearly 1.9 million children under 18; nearly 650,000

elderly residents; and over 520,000 people suffering adult and pediatric asthma.

See American Lung Association, State of the Air 2013 at 15 (2013). Yet as of

2013, DFW is home to nine of seventeen Texas counties that continue to be

designated as “serious” nonattainment under the 1997 ozone NAAQS. See EPA,

“Nonattainment Status for Each County by Year for Texas,” http://www.epa.gov/

airquality/greenbk/anay_tx.html, last visited Jan. 8, 2014. For the 2010-2012

monitoring period, DFW reported ozone levels of 87 ppb—exceeding the current

NAAQS by sixteen percent. EPA, “Design Values,” http://www.epa.gov/airtrends/

values.html, last visited Jan. 15, 2014.

The Area Designations Process. Area designations are a critical step in

ensuring the health-based air quality standards of the Act are met. Whenever the

Administrator promulgates a new or revised NAAQS, the Act requires EPA to


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designate areas as in attainment, unclassifiable, or in nonattainment with this

standard. See 42 U.S.C. § 7407(d). Although EPA receives recommendations

from the states as to area designations, the Act authorizes EPA to modify those

recommendations as it “deems necessary.” Id. § 7407(d)(1)(B); see Catawba Cnty.,

N.C. v. EPA, 571 F.3d 20, 40 (D.C. Cir. 2009) (concluding EPA “has no obligation

to give any quantum of deference to a designation that it ‘deems necessary’ to

change”).

Nonattainment areas include “any area that does not meet” the NAAQS and

any area that “contributes to ambient air quality in a nearby area that does not

meet” the NAAQS. 42 U.S.C. § 7407(d)(1)(A); see S. Rep. No. 101-228, 1990

CAA Legis. Hist. 8338, 8354-55 (1993) (Section 107(d) amendments “explicitly

provide that EPA may include within the boundary an area that may cause or

contribute to nonattainment in another area, regardless of whether pollutant

concentrations in the first area exceed the standard”). EPA may designate as

nonattainment any area that “exacerbates” nonattainment nearby, a flexible

standard of contribution that this Court has recognized as central to the “very

purpose” of Section 107(d) area designations. See Catawba, 571 F.3d at 39. Areas

that are designated nonattainment are subject to a number of health-protective

CAA requirements intended to ensure expeditious improvements in air quality.

See, e.g., 42 U.S.C. § 7511a (requiring deployment of all reasonably available


4

control technologies in nonattainment areas, nonattainment new source review, and

other plan provisions).

Since the enactment of Section 107(d), EPA has followed a rigorous, well-

considered process—long implemented by Administrations from both major

political parties—for designating nonattainment areas. EPA’s first guidance on

area designations for the 1997 ozone NAAQS instructed EPA to adopt

metropolitan statistical areas (“MSA”) as the presumptive boundaries for

nonattainment areas and allowed EPA to adjust those boundaries based on certain

air quality considerations.1 Subsequently, EPA applied the same basic approach to

area designations for the 1997 particulate matter (“PM2.5”) NAAQS, and in

Catawba, this Court specifically upheld this approach as a reasonable

interpretation of Section 107(d). Catawba, 571 F.3d at 39. The area designations at

issue here follow this same well-established process. See Memorandum from R.

Meyers, to Regions I-X, “Area Designations for the 2008 Revised Ozone National

Ambient Air Quality Standards,” Dec. 4, 2008.

The Wise County Designation. The Act required states to submit

recommended area designations after EPA strengthened the ozone standard in

2008. Though Texas did not recommend designating Wise County nonattainment,

1 See Memorandum from J. Seitz, to Regions I-X, “Boundary Guidance on Air Quality Designations for the 8-Hour Ozone National Ambient Air Quality Standards” at 3, Mar. 28, 2000 (referencing 1990 CAA Amendments, which required a similar process for the 1-hour ozone NAAQS designations).


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EPA exercised its statutory authority to designate Wise County as part of the ten-

county DFW nonattainment area on the grounds that it contributes to

nonattainment in the larger metropolitan area. Air Quality Designations for the

2008 Ozone NAAQS, 77 Fed. Reg. 30,088, 30,147 (May 21, 2012), JAXX; DFW

Technical Support Document (“TSD”) 5, JAXX.

In a TSD accompanying the designation, EPA systematically sets forth its

analysis of Wise County with reference to the core factors in the agency’s 2008

guidance memorandum.2 Among other things, EPA explained that Wise County is

one of the leading sources of ozone precursors in the DFW region, due in part to

emissions from the growing oil and natural gas industry; that, though Wise County

has no local ozone monitors, an ozone monitor located just 0.5 miles from Wise

County registered nonattainment over the period 2008-2010; that emissions from

Wise County appreciably contribute to ozone concentrations at other sites in the

DFW area, according to atmospheric modeling supplied by the Texas Commission

on Environmental Quality (“TCEQ”); that Wise County has meteorological

connections to areas of DFW experiencing high ozone concentrations; and that

Wise County has growing population and vehicle traffic. See DFW TSD 23,

JAXX.

2 The TSD organized the nine core factors into five subheadings. See DFW TSD 2, n.2, JAXX.


6

EPA’s nonattainment designation is just the beginning of a statutorily-

prescribed process through which Texas will have an opportunity to develop and

implement strategies to restore healthy air. See 42 U.S.C. §§ 7410, 7502, 7511a.

SUMMARY OF ARGUMENT

EPA’s determination that Wise County contributes to unhealthy levels of

smog in the DFW area is firmly supported by the administrative record and

consistent with the Clean Air Act. The Wise County designation rested on an

extensive analysis of all relevant factors—including emissions, meteorology,

population and traffic trends, and jurisdictional considerations—under a long-

standing interpretation of Section 107(d) resoundingly upheld by this Court in

Catawba. All of the factors weighed in favor of EPA’s ultimate finding that Wise

County “contributes” to unhealthy ozone levels nearby.

Neither was EPA’s analysis of Wise County inconsistent with its treatment

of other air quality regions. Petitioners’ selective presentation of record evidence

ignores critical factors that distinguish Wise County from other areas, and utterly

fails to show that EPA treated “similarly situated counties differently” as this Court

cautioned against in Catawba. Petitioners’ Tenth Amendment and Commerce

Clause challenges are likewise meritless and unsupported, raising tired arguments

that this Court and the Supreme Court have roundly rejected in the past.


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ARGUMENT

I. EPA’s Wise County Designation Comports with the Clean Air Act

and is Firmly Grounded in the Record

Petitioners do not mount any serious challenge to EPA’s statutory authority

to designate “any area” that “contributes” to nonattainment “nearby,” 42 U.S.C. §

7407(d)(1) or to the reasonableness of the underlying multifactor analysis EPA

used to make such determinations.3 Indeed, the agency’s actions on both counts

are clearly authorized by statute and manifestly consistent with past decisions of

this Court. See 42 U.S.C. § 7407; Catawba, 571 F.3d at 39 (rejecting a narrow

interpretation of the term “contributes” and upholding as reasonable EPA’s

multifactor approach to determine areas that contribute to nonattainment). To be

sure, EPA’s discretion in making area designations is not unbounded. The agency

must provide a reasoned explanation for its findings and must not apply its

multifactor analysis so as to treat similar areas in a dissimilar fashion, see

Catawba, 571 F.3d at 39-40. But as described below, EPA’s Wise County

designation clearly meets this standard based on extensive record evidence,

including the agency’s technical support document and its response to comments

and to reconsideration petitions.

3 State/County Petitioners’ claims that EPA has failed to interpret key terms in Section 107(d)(1), see State/County Br. 48-52, ring particularly hollow in light of the plain terms of the statute and this Court’s recent endorsement of EPA’s interpretation.


8

As a threshold matter, Wise County is within the DFW Combined Statistical

Area (“CSA”) and therefore presumed to be sufficiently integrated with the

broader metropolitan area to warrant inclusion in the nonattainment area. See

DFW TSD 3, JAXX. And as EPA’s TSD explains, all of the factors that EPA

properly considered in its designation indicate that emissions from Wise County

contribute to nonattainment in DFW:

• Wise County is close to monitors reporting unhealthy ozone levels. Wise

County is only 0.5 miles from the Eagle Mountain Lake (“EML”) ozone

monitor, whose most recent design value (“DV”) of 85 ppb is over 13%

higher than the 2008 ozone NAAQS. Id. at 5, JAXX. Wise County is also

adjacent to two counties—Tarrant and Denton—containing six additional

monitors registering violations of the 2008 ozone NAAQS in the 2008-2010

period. Id. at 3, JAXX; Reconsideration Denial—Devon (DN0736), Encl. at

4, JAXX.

• Wise County has high emissions. Wise County emits high levels of ozone

precursors both in absolute terms and relative to other DFW counties,

accounting for approximately 7.2% of the entire DFW region’s Volatile

Organic Compound (“VOC”) emissions (fourth-highest in the 19-county

CSA), and 5% of the region’s total emissions of nitrogen oxides (“NOx”)

(sixth-highest in the 19-county CSA). DFW TSD 7-8, JAXX. Indeed, Wise


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County’s emissions of VOCs are higher than six other DFW counties

recommended for nonattainment by the State of Texas (including five with

no violating ozone monitors), and its emissions of NOx are higher than four

other counties recommended nonattainment by Texas (including three which

had no violating ozone monitors). DFW TSD 3, 7, JAXX.

• Wind trajectories indicate Wise County contributes to unhealthy ozone

levels. EPA’s analysis of recent wind trajectories (“HYSPLIT Analysis”) in

DFW indicated that on multiple high ozone days, Wise County was directly

upwind of violating monitors in the DFW area. Reconsideration Denial—

Devon, Encl. at 9, JAXX. Moreover, five of the seven days in which Wise

County was linked to the EML monitor had a role in establishing that the

monitor exceeded the ozone NAAQS, see id. at 9, 13 (on “the days when the

air did come from Wise County, the downwind monitors had some of the

highest ozone readings during the time period evaluated”). Wise County

thus exerts considerable influence on DFW compliance with the ozone

NAAQS, id., notwithstanding Industry Petitioners’ protests that the county is

not upwind of DFW most of the time. Brief of Indus. Pets., Docket No.

1457079 (“Indus. Br.”) 15-16.


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• Air quality modeling indicates Wise County contributes to high ozone

levels in DFW. Consistent with this Court’s opinion in ATK Launch

Systems v. EPA, 669 F.3d 330, 339-40 (D.C. Cir. 2012), EPA augmented its

HYSPLIT analysis by considering source apportionment modeling

volunteered by Texas. EPA explained that Texas’ modeling under-predicted

Wise County’s contribution to ozone because it excluded late-summer

weather events associated with peak ozone levels in DFW. See DFW TSD

16, JAXX; see also Reconsideration Denial—Devon, Encl. at 25, JAXX

(adding that Texas’ SAM model under-predicted the ozone DV by 9 ppb in

2012).4 As a result, EPA reasonably placed more weight on the peak

modeled contribution of Wise County emissions on high-ozone days at

DFW monitors. DFW TSD 17, JAXX. Notably, EPA did so using Texas’

projected emission inventory for 2012—which accounted for recent

reductions in emissions from Wise County and would likely show lower

contributions to ozone levels in DFW than the 2006 emission inventory,

which Texas also submitted. Id. at 16. Even using Texas’ preferred

emission inventory, the modeling identified nine instances over five high-

ozone days in which Wise County contributed to more than 1% of ozone

levels at DFW monitors. Wise County’s contribution to ozone levels at the

4 Texas’ modeling also included errors and discrepancies, which EPA shared with TCEQ prior to finalizing the TSD. DFW TSD 17, JAXX.


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EML monitor, just 0.5 miles from the county line, was equivalent to nearly

7% of the NAAQS. Id. at 19.

• Wise County’s population and commuting data indicates growing

integration with DFW. Based on 2010 census data, approximately 46% of

Wise County’s nearly 23,000 working residents commute to a county with a

violating ozone monitor—indicating that vehicles in Wise County are

potential contributors to nonattainment, and that the county’s economy is

closely integrated with the broader metropolitan region. Id. at 13, JAXX.

Moreover, although Wise County’s population ranks thirteenth in the CSA,

it grew at a rapid rate of nearly 20% over the latest 2000-2010 census period,

signifying “increasing integration with the core urban area.” Id. at 9-10.

• Wise County shares planning jurisdiction with other counties in the

nonattainment area. As further evidence of its integration with DFW,

Wise County is part of the DFW metropolitan planning organization

(“MPO”) charged with implementing programs and projects that reduce

transportation sector emissions and improve air quality. Id. at 21, JAXX.

EPA carefully evaluated each of the factors above and noted that all of them

together “support the inclusion of Wise County in the nonattainment area.” Id. at

23, JAXX.


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II. The Wise County Designation is Not Inconsistent with Other Area

Designations

In a misplaced attempt to cast doubt on the ample evidence underlying the

Wise County designation, Petitioners selectively present information from other

area designations that are purportedly inconsistent with Wise County. However,

this Court held in Catawba that an area designation is only invalid for

inconsistency if EPA treats “similarly situated counties differently.” See Catawba,

571 F.3d at 46. Petitioners have failed to identify any air quality regions that are

“similarly situated” to Wise County, and overlook key distinctions that explain the

designations of those regions.

Orange County. Industry Petitioners argue that EPA’s designation of

Orange County was based primarily on analysis of prevailing wind direction and

fundamentally inconsistent with the more detailed analysis EPA performed for

Wise County. Indus. Br. 16-19. However, the relevant TSD shows prevailing

wind direction was only one factor supporting the designation of Orange County.

Unlike Wise County, the closest ozone monitor to Orange County registered

attainment in 2008-2010, and the nearest violating ozone monitor is about 30 miles

away. N.Y. TSD 2, JAXX. Further, the proportion of Orange County residents

commuting to a nearby county with a violating monitor is less than one-quarter that

of Wise County (10% for Orange County, versus 45% for Wise County), see id. at

13, JAXX; the population of Orange County is growing at less than half the rate of


13

Wise County (9% population growth from 2000 to 2010 for Orange County, versus

nearly 20% for Wise County), see id. at 11, JAXX; and Orange County’s relative

emissions ranked substantially lower than Wise County (Orange County ranked

18th and 19th in a 49-county area for NOx and VOC, compared to Wise County’s 4th

and 6th place ranking in a 19-county area), see id. at 9-10, JAXX. Unlike Wise

County, Orange County is not part of the regional MPO. Id. at 15, JAXX.

Accordingly, Orange County is clearly not similarly situated to Wise County.5

Cattaraugus County. Industry Petitioners similarly argue that the

designation of Cattaraugus County was based primarily on wind direction, and that

this approach would have yielded a different result if applied to Wise County.

Indus. Br. 20. As a threshold matter, Petitioners did not raise this objection in their

comments on the proposed area designations or in their petitions for

reconsideration—rather, Petitioners raised EPA’s analysis of the Cattaraugus

5 EPA did not rely on HYSPLIT data for Orange County, because EPA possessed HYSPLIT data for only sixteen areas of the country (including DFW). Reconsideration Denial—Devon, Encl. at 13-14, JAXX. EPA developed this data for DFW in part because of the light and variable wind conditions in the area, which render unreliable general indicators of wind direction. Id. at 10, 14, JAXX. EPA’s use of HYSPLIT data, for regions where such data was useful and available, was not arbitrary or capricious.


14

Reservation.6 This Court should consider this particular objection waived. Cf.

Nat’l Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1231 (D.C. Cir. 2007)

Even if not waived, the Petitioners’ comparison is inapt. EPA evaluated

Cattaraugus County for possible contributions to ozone nonattainment at a single

violating monitor in Jamestown, NY—a small, single-county “micropolitan” area

that is the only nonattainment area in upstate New York. Jamestown TSD 1,

JAXX. Unlike Wise County, Cattaraugus County is not part of the relevant CSA

Core Based Statistical Area (“CBSA”), see id. at 3, JAXX, and is therefore not part

of the presumptive nonattainment area. Neither is the county located immediately

proximate to an egregiously violating monitor, as Wise County is. See id., JAXX

(showing Jamestown violating monitor is approximately 20 miles away from

Cattaraugus County line, and has a DV considerably lower than the EML monitor).

EPA’s designation of Cattaraugus is in no way comparable to Wise County.

York and Dauphin Counties. Focusing on EPA’s wind trajectory analysis,

Petitioners argue that EPA’s area designations for York and Dauphin Counties in

Pennsylvania was inconsistent with its treatment of Wise County. Indus. Br. 21-

25. However, the TSD for these counties shows that neither county is immediately

adjacent to a violating monitor, as Wise County is, see Pa. TSD 18, JAXX

6 See Texas Pipeline Ass’n, Docket No. EPA-HQ-OAR-2008-0476 Comments at 8, 19 (Feb. 2, 2012), JAXX (critiquing EPA analysis of Cattaraugus Reservation, without mentioning Cattaraugus County); Devon Resp. at 18 (addressing TPA’s critique).


15

(showing nearest violating monitor is approximately 15 to 20 miles from the

county lines); both counties had much lower growth in VMT (over 2002-2008)

than Wise County, see id. at 23, JAXX (showing growth rates of 6.1% and 2.0%

for York and Dauphin, respectively, compared to 16% for Wise County); and

neither county has strong commuter linkages to Lancaster, see id. at 23, JAXX

(indicating only 10% of York County commuters and 3% of Dauphin County

commuters travel to Lancaster). The TSD also identifies “strong jurisdictional

arguments” for making Lancaster County a single-county nonattainment area,

noting that Lancaster County is a single-county MSA and is served by a single-

county MPO—both factors that distinguish York and Dauphin Counties from Wise

County. Id. at 31, JAXX.

Roane and Lawrence Counties. Petitioners also wrongly assert that Roane

County, Tennessee and Lawrence County, Pennsylvania are “roughly similar” to

Wise County and that EPA arbitrarily discounted HYSPLIT modeling in those

areas. Indus. Br. 25-26. Unlike Wise County, Roane County is thirty miles distant

from the nearest nonattaining ozone monitor, and is not adjacent to any county

with a nonattaining monitor. Knoxville TSD 3, JAXX. Only 1.7% of Roane

County workers commute to a county with a nonattaining monitor (compared to

45% for Wise County), and the county’s population growth rate over 2000-2010

was approximately one-fifth of Wise County’s. Id. at 8-9, JAXX.


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Petitioners’ comparison to Lawrence County also fails. Whereas Wise

County has some of the highest emissions of ozone precursors in the DFW area,

EPA found that Lawrence County’s emissions are relatively low compared to

nearby counties (with the third-lowest emissions of NOx and second-lowest

emissions of VOCs in the eight-county CSA). Pa. TSD 68, JAXX. Lawrence

County also witnessed declining population and vehicle traffic over the 2000-2010

period, and only about 7.5% of Lawrence County commuters travel to an area with

a nonattaining monitor. Id. at 69-70, JAXX.

In sum, Petitioners have failed to show that, when compared to Wise

County, EPA has treated “similarly situated counties differently.” Catawba, 571

F.3d at 46.

III. Texas Petitioners’ Constitutional Claims Are Groundless

Texas Petitioners constitutional challenges against EPA’s designation of

Wise County, and the Clean Air Act provisions authorizing that designation, are

meritless.7

7 Petitioners also raise a frivolous Due Process challenge based on the alleged bias of EPA’s Regional Administrator for the state of Texas. Petitioners’ unsupported claims fail to note that it was the Administrator—and not the Regional Administrator—who made final designation decisions. 77 Fed. Reg. at 30,090, JAXX. In any event, the Regional Administrator left the agency at the end of April 2012, months prior to the reconsideration proceeding.


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A. The Commerce Clause Authorizes EPA’s Designation of Wise

County

Petitioners do not raise Commerce Clause objections to either the Act as a

whole or to Section 107(d). Nor could they, as both the Supreme Court and this

Court have found the Commerce Clause “permit[s] congressional regulation of

activities causing air or water pollution . . . that may have effects in more than one

State.” Hodel v. Virginia Surface Mining and Reclamation, 452 U.S. 264, 282

(1981); Allied Local & Reg’l Mfrs. Caucus v. EPA, 215 F.3d 61, 82-83 (D.C. Cir.

2000) (emphasizing the “interstate nature of the ‘ozone transport phenomenon’”

and the “heavy impact ozone pollution has on national health care costs and

national agricultural production”). Numerous provisions in the Act recognize that

air pollution—including ozone—is a complex national and interstate problem.

See, e.g., 42 U.S.C §§ 7402, 7403, 7408, 7409, 7410, 7426, 7470, 7506, 7511c.

Instead, Petitioners claim EPA’s Wise County nonattainment designation

violated the Commerce Clause, Corrected Joint Brief of the State and County Pets.,

Docket No. 1457537 (“State/County Br.”) 36, but these claims are neither factually

nor legally supported. Courts can invalidate an exercise of Commerce Clause

authority only if there is “no rational basis” for concluding that a regulated activity

affects interstate commerce. Hodel v. Indiana, 452 U.S. 314, 323 (1981).

Petitioners’ unsubstantiated assertions that emissions from Wise County are

“wholly intrastate,” State/County Br. 36, cannot overcome the substantial


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deference owed to Congress’s determination that a regulated activity affects

interstate commerce. See NCAA v. Christie, 926 F. Supp. 2d 551, 558-60 (D.N.J.

2013).

Even if Wise County emissions were wholly intrastate, which Petitioners

have not shown, EPA’s designation remains valid. As the Supreme Court has

concluded, when “a general regulatory statute bears a substantial relation to

commerce, the de minimis character of individual instances arising under that

statute is of no consequence.” United States v. Lopez, 514 U.S. 549, 558 (1995)

(citations and internal quotations omitted); see also Gonzales v. Raich, 545 U.S. 1,

23 (2005) (“[w]here the class of activities is regulated and that class is within the

reach of federal power, the courts have no power ‘to excise, as trivial, individual

instances’ of the class”). Petitioners themselves recognize this precedent,

State/County Br. 36 n.31, which is fatal to their Commerce Clause challenge.

B. EPA’s Wise County Designation Comports with the Tenth

Amendment

Petitioners likewise challenge Section 107(d)(1)(B) as a violation of the

Tenth Amendment “to the extent it authorized EPA to override TCEQ and declare

Wise County nonattainment.” State/County Br. 35. But Petitioners fundamentally

mischaracterize the cooperative federal-state partnership embodied in the Act, and,

in doing so, raise challenges that are meritless and premature.


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Section 107(d)(1)(B) is an integral part of the cooperative federal-state

partnership the Act sets forth to restore healthy air. The plain language of the Act

entrusts EPA with authority to set air quality standards and designate which areas

violate those standards, 42 U.S.C. §§ 7407(d), 7410(a), while giving states the first

opportunity to develop implementation plans for meeting the NAAQS. 42 U.S.C.

§ 7410(a). If a state chooses not to submit such a plan, however, the Act

empowers EPA to implement an acceptable plan. Id. § 7410(c). Both the Supreme

Court and this Court have upheld this type of cooperative federalism against Tenth

Amendment challenges. See Virginia Surface Mining & Reclamation Ass’n, 452

U.S. at 288; Texas v. EPA, 726 F.3d 180, 196 (D.C. Cir. 2013) (recognizing

Supreme Court precedent “repeatedly affirming the constitutionality of federal

statutes that allow States to administer federal programs but provide for direct

federal administration if a State chooses not to administer it”). Petitioners’ reliance

on National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566

(2012), is misplaced and does nothing to alter this result.

Petitioners’ Tenth Amendment arguments are also misdirected in that they

challenge provisions of the Act that are not at issue in this proceeding.

Specifically, Petitioners argue that CAA provisions requiring the withholding of

certain Federal funds from states that do not submit adequate implementation plans

are coercive. EPA, however, has yet to establish deadlines for submitting state


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plans for the ozone NAAQS, let alone taken any actions with respect to states’

preferred approaches for ensuring healthy air within their borders. Any Tenth

Amendment challenge is therefore entirely speculative and premature. See Abbott

Labs. v. Gardner, 387 U.S. 136, 148-49 (1967).

In any event, the sanctions provisions are plainly constitutional. Petitioners

misleadingly characterize these penalties as entailing “the loss of all Federal

highway and transit funding.” State/County Br. 33. But EPA rules indicate that

the agency will first impose emissions offsets. 40 C.F.R. § 52.31(d). Further, any

sanctions ultimately levied are limited to apply only to the nonattainment area and

are narrowly tailored—exempting funding for safety-related projects, public

transit, and other investments that reduce emissions. 42 U.S.C. §§ 7509 (b)(1),

7509(b)(1)(A). Such carefully tailored sanctions are germane to federal interests in

air quality, cf. South Dakota v. Dole, 483 U.S. 203, 208-09 (1987), and are in no

way comparable to the complete loss of Medicaid funding at issue in Sebelius, 132

S. Ct. 2566.


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CONCLUSION

This Court should deny the petitions for review.

Respectfully submitted, /s/ Peter Zalzal TOMÁS CARBONELL PETER ZALZAL Environmental Defense Fund 2060 Broadway St., Ste. 300 Boulder, CO 80302 (303) 447-7224 [email protected] [email protected] Counsel for Environmental Defense

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