The Nickel Report

EPA has finalized a regulation you can live with, but someone dissatisfied with that result has sued the Agency.  Should you intervene to defend EPA’s action?  Is it worth it?  Does the court really pay attention to the arguments of an intervenor?  A recent decision by the D.C. Circuit in Masias v. EPA, No. 16-1314 (D.C. Cir. Oct. 19, 2018), illustrates the value of participation as a Respondent-Intervenor in these circumstances.

Masias involved several consolidated challenges to EPA’s designation of specific areas as “unclassifiable” for EPA’s primary National Ambient Air Quality Standard for sulfur dioxide.  EPA promulgates ambient standards to protect public health pursuant to the federal Clean Air Act.  After an ambient standard is promulgated, the Act requires EPA to designate all areas of the country as “attainment” or “nonattainment” for that standard.  If EPA cannot determine whether a particular area meets an ambient standard based on the information before it, however, the Act directs EPA to designate that area “unclassifiable.”  Areas designated “unclassifiable” are generally treated the same as areas designated “attainment.”  A “nonattainment” designation, however, triggers various stringent and burdensome planning and control requirements that are intended to bring the area into attainment of the standard.  EPA promulgated a 1-hour ambient standard for sulfur dioxide in 2010 and, in July 2016, made designations for several areas with regard to that standard.  As part of its July 2016 action, EPA designated Gallia County, Ohio “unclassifiable.”

Sierra Club filed a petition for review of the Gallia County unclassifiable designation.  Sierra Club’s petition was consolidated with petitions for review of other designations under the caption Masias v. EPA.  Sierra Club argued in its brief, as it argued in its comments, that Gallia County should have been designated nonattainment.  But in its brief, Sierra Club made a brand new argument – one that it had not made in its comments.  Specifically in its brief, Sierra Club argued for the first time that EPA should have made “a basic mathematical fix” to modeling that the State of Ohio had submitted to EPA.  According to Sierra Club, applying that “fix” to Ohio’s modeling results would have established that Gallia County did not meet the sulfur dioxide ambient standard and should have been designated nonattainment.

Respondent Intervenors the Utility Air Regulatory Group (UARG) and Union Electric Company argued that the issue of whether EPA was required to adjust Ohio’s modeling results was not properly before the court.  They noted that section 307(d)(7)(B) of the Clean Air Act provides, “Only an objection to a rule  . . . which was raised with reasonable specificity during the period for public comment . . . may be raised during judicial review.”  Respondent Intervenors asserted that, because Sierra Club had not argued during the public comment period that EPA was required to “fix” Ohio’s modeling, that argument could not be considered by the court.

EPA did not join this argument, a fact that Sierra Club characterized in its Reply as “telling[.]” The court, however, agreed with the Respondent-Intervenors.  Although “somewhat baffled” that EPA had not made this argument, the court noted that the argument had been “properly preserved” by the Respondent-Intervenors.  Masias, slip op. at 9.  The court denied Sierra Club’s petition for review because “Sierra Club’s sole objection was not “’‘raised . . . during the period for public comment.’”  Id, slip op. at 12.

The Masias decision illustrates the important role that Respondent-Intervenors can play in judicial proceedings.  Arguments made by Respondent-Intervenors can be decisive for the outcome of a case.  Without the participation of the Respondent-Intervenors in the Masias case, the argument that the court found persuasive would not have been presented and  Sierra Club’s challenge to EPA’s action might have succeeded.