Environmental Law – Clean Air Act – attainment

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U.S. Court of Appeals For the Seventh Circuit

Civil

Environmental Law – Clean Air Act – attainment

The EPA reasonably decided that Milwaukee and other areas had attained the requisite ambient air quality standards for ozone.

“The overarching theme running through Sierra Club’s petition is that EPA could have done more. But the question before us concerns only whether EPA was required to do more. The CAA mandated that EPA determine that reduced ozone levels were ‘due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable federal air pollutant control regulations and other permanent and enforceable reductions.’ 42 U.S.C. § 7407(d)(3)(E)(iii). The Calcagni Memo interprets this causation provision to impose on EPA an obligation to ‘reasonably attribute’ air quality improvement ‘to emission reductions which are permanent and enforceable,’ not to prove causation with any higher degree of confidence than that. While the Calcagni Memo made clear that ‘[a]ttainment resulting from temporary reductions in emission rates (e.g., reduced production or shutdown due to temporary adverse economic conditions) or unusually favorable meteorology would not qualify,’ that language cannot fairly be read to impose—as Sierra Club would prefer—an affirmative obligation on EPA to analyze, model, and scientifically quantify the effects of those variables on emissions reductions. Instead, the Memo instructed EPA to ‘estimate the percent reduction . . . achieved from Federal Measures . . . as well as control measures that have been adopted and implemented by the State . . . . to clearly show that the air quality improvements are the result of implemented controls.’ EPA did that here.”

Petition denied.

12-2853, 12-3142 & 12-3143 Sierra Club v. EPA

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