The Sixth Circuit handed down a pair of decisions brought under the Clean Air Act within days of each other, although interestingly they were issued by different panels.  See Sierra Club v. United States Environmental Protection Agency, and St. Marys Cement, Inc. v. United States Environmental Protection Agency.  The EPA received split decisions in these two cases.  In the first case, Sierra Club, the Sixth Circuit addressed both the Sierra Club’s standing and then the EPA’s determination that the Cincinnati-Hamilton metropolitan area had obtained national air quality standards for particulate matter based on a regional cap and trade program that reduced the flow of interstate pollution.  On the threshold standing question, the Court considered whether the Sierra Club had representational standing to bring claims on behalf of its members.   The Sixth Circuit noted that it had never decided the question of representational standing in the context of a petition for direct appellate review of a final agency action, and accordingly turned to the decision from its sister circuits.  Consistent with the other circuits, the Sixth Circuit held that the petitioner had the burden of production similar to that required at summary judgment.  Because the Sierra Club attached declarations to its opening brief from appropriate individuals, and they covered the necessary elements to establish Article III standing, the Court turned to address the merits.

The Court cited the familiar Chevron standard, noting that general deference afforded the EPA in interpreting and applying this complex statute.  Given the statutory context, the Court found it sufficiently ambiguous to clear the first Chevron step.  Although the Court upheld one aspect of the challenge based on the deference given to the EPA, it rejected another largely based on a prior decision by the Circuit, Wall v. EPA, 265 F.3d 426 (6th Cir. 2001).  The Court rejected EPA’s efforts to distinguish Wall and ultimately determined that the EPA acted in violation of the Clean Air Act in this particular re-designation request.

The EPA fared better in the St. Marys Cement case regarding requirements that factories add new pollution limiting technology.  In this case, St. Marys submitted two separate comments, one timely and one not.  Ultimately, the Court held that arguments premised on the latter set of comments were waived because they were not timely submitted, offering another gentle reminder about preservation of arguments and issues for subsequent review.  With respect to the arguments that were preserved, the Court cited the familiar arbitrary and capricious standard for administrative review, and found no apparent flaws commanding vacatur in the EPA’s decision.  The EPA engaged in a case-by-case review and had reasons underlying its proposal that St. Marys install the applicable technology at its plant.  The Court refused to let St. Marys second guess the EPA’s technical and scientific views:  “Maybe time will prove St. Marys right on some of these fronts; maybe not.  But arbitrary and capricious review does not ask who was right.  It asks whether the EPA followed a defensible process in assessing who is right.”