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Communities For a Better Environment v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

April 11, 2014

COMMUNITIES FOR A BETTER ENVIRONMENT AND WILDEARTH GUARDIANS, PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT, SIERRA CLUB, INTERVENOR

Argued: September 26, 2013.

On Petition for Review of a Rule of the United States Environmental Protection Agency.

Nicholas J. Lopez, Student Counsel, argued the cause for petitioners and intervenor. On the briefs was Michael Ray Harris. Kelly D. Davis, Kevin J. Lynch, and Shannon Love, Student Counsel, entered appearances.

Andrew J. Doyle, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was David P.W. Orlin, Attorney, United States Environmental Protection Agency.

Before: BROWN and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge KAVANAUGH.

OPINION

Page 334

Kavanaugh, Circuit Judge :

Carbon monoxide is an odorless, colorless gas that can be produced by human activity, mainly by operation of motor vehicles. Carbon monoxide can cause adverse health effects, particularly for people with pre-existing health problems.

Under the Clean Air Act, EPA must establish primary and secondary national air quality standards to regulate the levels of six common air pollutants, including carbon monoxide. The primary standards must be set at a level " requisite to protect the public health," which encompasses human health. 42 U.S.C. § 7409(b)(1). The secondary standards must be set at a level " requisite to protect the public welfare," which is defined in the statute to encompass the welfare of animals, the environment, and climate, among other things. Id. § § 7409(b)(2), 7602(h). Once EPA identifies the proper levels for the standards, States administer programs for reduction in emissions of pollutants. See id . § 7410.

The primary standards for carbon monoxide have remained the same since 1971. There has not been a secondary standard for carbon monoxide since EPA revoked a secondary standard in 1985. In 2007, EPA began reviewing whether to alter the current primary standards and whether to adopt a secondary standard. In 2011, EPA decided to keep things as they were: to retain the same primary standards and to continue without a secondary standard. See Review of National Ambient Air Quality Standards for Carbon Monoxide, 76 Fed. Reg. 54,294 (Aug. 31, 2011).

State and local governments and industry groups agreed with EPA's decision. But three non-profit environmental and wildlife organizations -- Communities for a Better Environment, WildEarth Guardians, and Sierra Club -- have objected. Petitioners argue that EPA's decisions concerning both the primary and secondary standards for carbon monoxide were arbitrary and capricious.

We conclude that EPA acted reasonably in retaining the same primary standards for carbon monoxide, and that petitioners lack Article III standing to challenge EPA's decision not to set a secondary standard for carbon monoxide.

I

Under Sections 108 and 109(b)(1) of the Clean Air Act, EPA must set National Ambient Air Quality Standards, commonly known as NAAQS, for six common air pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particle pollution, and sulfur dioxide. See 42 U.S.C. § 7408. For each pollutant, EPA identifies primary ambient air quality standards that are " requisite" to protect the public health. Id . ยง 7409(b)(1). Specifically, the EPA Administrator must " ...


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