MURPHY, Circuit Judge.
Under the Clean Air Act, the Environmental Protection Agency ("EPA") is charged with establishing National Ambient Air Quality Standards ("NAAQS") for various air pollutants. 42 U.S.C. § 7409. Once a NAAQS is established, EPA must promulgate designations of geographic areas across the nation according to their compliance with the NAAQS. Id. § 7407. These consolidated petitions challenge EPA's inclusion of portions of Box Elder County, Utah, and Tooele County, Utah, in a "nonattainment" area as to the NAAQS for fine particulate matter. EPA moved to dismiss the petitions or to transfer the petitions to the D.C. Circuit, arguing the Clean Air Act's judicial review provision designates the D.C. Circuit as the proper forum. For the reasons set out below, this court
EPA is charged with establishing NAAQS for various air pollutants that may endanger public health and welfare. 42 U.S.C. §§ 7408-09. The NAAQS sets the maximum allowable air concentration for a particular pollutant. Id. § 7408. Once a NAAQS is established, each state is required to submit a list of all areas in the state with designations of nonattainment, attainment, or unclassifiable. Id. § 7407(d)(1)(A). Attainment areas meet the air quality standard established by the relevant NAAQS. Id. § 7407(d)(1)(A)(ii). Nonattainment areas are areas with air quality that does not meet the NAAQS or with air quality that "contributes to ambient air quality in a nearby area that does not meet" the NAAQS. Id. § 7407(d)(1)(A)(i). Finally, unclassifiable areas are areas as to which there is insufficient information for classification. Id. § 7407(d)(1)(A)(iii). EPA reviews all states' submitted designations and, if it disagrees with a particular designation, it must notify the state and give it an opportunity to demonstrate why any proposed modification is inappropriate. Id. § 7407(d)(1)(B)(ii). EPA then promulgates final designations. Id. § 7407(d)(1)(B)(i). These designations affect the obligations under the Act for each state in creating its State Implementation Plan ("SIP"), a plan each state must submit to EPA for approval to provide for the state's achievement and maintenance of the air quality established in the relevant NAAQS. Id. §§ 7410, 7471, 7502.
Since 1997, EPA has maintained a NAAQS for fine particulate matter, a pollutant
States then submitted proposed designations to EPA. Among others, Utah's proposed designations defined one nonattainment area centered in Salt Lake City to include the entirety of Salt Lake and Davis counties and a portion of Weber county. Utah proposed that Box Elder and Tooele counties be designated attainment areas (or, in the alternative, unclassifiable) in their entirety. Pursuant to the Clean Air Act's requirements, EPA then notified Utah that it intended to modify the proposed designations to, among other things, include eastern portions of Box Elder and Tooele counties within the Salt Lake City nonattainment area. After all notifications of proposed modifications had been made to various states, EPA invited public comment prior to issuing a final designations rule. See Designations Recommendations: Notice of Availability and Public Comment Period, 73 Fed.Reg. 51,259 (Sept. 2, 2008). Petitioners ATK Launch Systems ("ATK"), Box Elder County, Brigham City, Grantsville City, Tooele City, and the State of Utah submitted comments opposing the modification. EPA then issued its final designation rule explaining the methodology for determining designations and enumerating designations for areas across the country. Air Quality Designations for the 2006 PM
ATK, a business with operations in the eastern portion of Box Elder County, petitioned this court for review of EPA's inclusion of that location in the final nonattainment area. Likewise, Tooele County, Tooele City, and Grantsville City petitioned for review of EPA's inclusion of the eastern portion of Tooele County. Finally, Box Elder County and Brigham City petitioned for review of the inclusion of the eastern portion of Box Elder County. This court consolidated the petitions. The consolidated petitions argue the modifications to Utah's proposed designations concerning Box Elder and Tooele counties are arbitrary and capricious.
In a motion to dismiss or to transfer the petitions, EPA raised the threshold question whether the petitions are properly adjudicated in this court or whether they belong in the D.C. Circuit under the judicial review provision of the Clean Air Act. See 42 U.S.C. § 7607(b)(1).
The inquiry thus begins by determining if the challenged regulation is "nationally applicable" or "locally or regionally applicable." Id. The language of the Clean Air Act provision makes clear that this court must analyze whether the regulation itself is nationally applicable, not whether the effects complained of or the petitioner's challenge to that regulation is nationally applicable. Id. (assigning to the D.C. Circuit challenges to "nationally applicable regulations promulgated"). Other circuits to consider the issue have taken a similar approach. Natural Res. Def. Council, Inc. v. Thomas, 838 F.2d 1224, 1249 (D.C.Cir. 1988) (looking at face of rule, rather than practical effect, in determining national applicability); see Texas v. EPA, No. 10-60961, 2011 WL 710598, at *3 (5th Cir. Feb. 24, 2011) (same).
The EPA Designations Rule at issue here establishes "initial [PM
In promulgating final designations, EPA also applies a uniform process and standard across the country. EPA explained that it "invited all states and tribes to submit area and boundary recommendations" and "issued guidance" concerning how to determine nonattainment designations and area boundaries. Id. at 59,692, 58,693. As part of its guidance, EPA "recommended nine factors ... [it] considered relevant for designations." Id. at 58,693. EPA further explained its methodology in determining when an area "contributes" to a nearby violation, what constitutes a
ATK's contention that EPA's case-by-case consideration of areas and boundaries transforms a national standard to a regional or local rule is ultimately unpersuasive. That no mechanical or bright-line rule applies in these circumstances does not mean EPA holds localities to differing standards, each of which should be reviewed in a local circuit. As the D.C. Circuit explained in upholding EPA's approach to nonattainment designations, a multi-factor inquiry is not "unreasonable just because it lacks quantitative standards." Catawba County v. EPA, 571 F.3d 20, 39-40 (D.C.Cir.2009) (finding totality of circumstances test as reasonable interpretation of statutory duties and that EPA consistently applied it). EPA's analytic rubric is a single interpretation of the Clean Air Act provision concerning areas that contribute to a nearby NAAQS violation.
The cases cited by ATK in which courts have concluded petitions for review of EPA actions were properly brought outside the D.C. Circuit present different considerations than the petition here.
In Madison Gas & Electric Co. v. EPA, the Seventh Circuit considered a particular company's challenge to its initial allocation of allowances under a national program creating tradeable pollution permits. 4 F.3d 529, 530 (7th Cir.1993). Allowances
Unlike the petitioners in Madison Gas, ATK complains of errors not limited to EPA's assessment of facts on the ground wholly within Box Elder and Tooele counties. Rather, it invokes a broad comparison between EPA's designations as to those counties and the designations of counties in other regions in an attempt to demonstrate that EPA's application of its nationwide standard was arbitrary and capricious because it leads to inconsistent outcomes in different areas of the country. The nature of the challenge here is therefore much different from that considered in Madison Gas, and Madison Gas serves as no basis for concluding that ATK's challenge is properly brought in the Tenth Circuit.
The challenge here is more akin to challenges to so-called "SIP Calls," which the Fourth and Fifth Circuits have transferred to the D.C. Circuit. See Texas v. EPA, 2011 WL 710598, at *3; W. Va. Chamber of Commerce v. Browner, No. 98-1013, 1998 WL 827315, at *5-*7 (4th Cir. Dec. 1, 1998).
Like the SIP Calls, EPA's Designations Rule creates a standard that applies to the entire country. Any area falling below the standard receives the nonattainment designation and attendant consequences. EPA's listing of the designations applied to each locality does not, as ATK suggests, constitute a mere amalgamation of numerous local actions into a single rule. Rather, EPA's Designations Rule constitutes its national interpretation of Clear Air Act mandates, and any challenge thereto belongs in the D.C. Circuit.
Given this court's ruling that the petitions be transferred to the D.C. Circuit, there is no occasion to consider the parties' arguments on the merits. There is likewise no need to reach EPA's claim that no petitioner has standing to challenge the designation as to Tooele County. Although standing is jurisdictional and must be decided prior to a determination of the merits of a case, "there is no mandatory sequencing of jurisdictional issues." Sinochem Intern. Co. v. Malay. Intern. Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (quotation omitted) (holding a court need not resolve its own subject matter jurisdiction before dismissing a suit on the ground of forum non conveniens). This court may choose to transfer the petitions to the proper court under the Clean Air Act and leave EPA's standing arguments to be decided in the D.C. Circuit. See Leroy v. Great W. United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979) (venue may be addressed before personal jurisdiction).
For the foregoing reasons, the petitions are