United States Court of Appeals, District of Columbia Circuit
Argued, March 25, 2014
On Petition for Review of a Final Action of the United States Environmental Protection Agency.
Samantha Ruscavage-Barz argued the cause and filed the briefs for petitioner. James J. Tutchton entered an appearance.
Kim Smaczniak, Attorney, Environmental Defense Section, U.S. Department of Justice, argued the cause for respondents. With her on the brief were Robert G. Dreher, Acting Assistant Attorney General, Environment and Natural Resources Division, and Scott Jordan, Office of General Counsel.
Andrew C. Emrich, Emily C. Schilling, Peter S. Glaser, and Merril J. Hirsh were on the brief for intervenors National Mining Association, et al. in support of respondents.
Before: GRIFFITH, Circuit Judge, and EDWARDS and RANDOLPH, Senior Circuit Judges. Opinion for the Court filed by Senior Circuit Judge EDWARDS.
Edwards, Senior Circuit
On June 16, 2010, Earthjustice, on behalf of WildEarth Guardians (" Guardians" ) and other environmental groups, petitioned the Environmental Protection Agency (" EPA" ) to add coal mines to the regulated list of stationary source categories under the Clean Air Act, 42 U.S.C. § 7411(b)(1)(A). The petition sought to have EPA initiate a rulemaking to: " (1)
list coal mines as a category of stationary sources that emit air pollution which may reasonably be anticipated to endanger public health or welfare; (2) establish federal standards of performance for new and modified sources within the newly listed stationary source category for coal mines; and (3) establish federal standards of performance to address methane emissions from existing sources within the newly listed stationary source category for coal mines." Pet'rs' Br. at 7. EPA denied the petition on April 30, 2013. Letter from Bob Perciasepe, Acting Administrator, to Edward B. Zukoski, Staff Attorney, Earthjustice (Apr. 30, 2013) (" Letter Denying Petition " ), reprinted in Joint Appendix (" J.A." ) 40-44. Guardians now seeks review of EPA's action.
In denying the petition for rulemaking, EPA explained that it " must prioritize its actions in light of limited resources and ongoing budget uncertainties, and at this time, cannot commit to conducting the process to determine whether coal mines should be added to the list of categories under" the Clean Air Act. Notice of Final Action on Petition From Earthjustice To List Coal Mines as a Source Category and To Regulate Air Emissions From Coal Mines, 78 Fed. Reg. 26,739 (May 8, 2013). EPA made it clear, however, that the denial was not a determination as to whether coal mines should be regulated as sources of air pollutants. Letter Denying Petition, J.A. 40. The agency also indicated that it might, in the future, initiate a rulemaking proceeding to address the question raised by Guardians, but it would not do so now. Id.
Guardians contends that EPA's reasons for denying the petition for rulemaking do not " conform to the authorizing statute," as required under Massachusetts v. EPA, 549 U.S. 497, 533, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). We disagree. On the record before us, we find that EPA's action easily passes muster under the " extremely limited" and " highly deferential" standard that governs our review of an agency's denial of a rulemaking petition. Id. at 527-28 (quoting Nat'l Customs Brokers & Forwarders Ass'n of America, Inc. v. United States, 883 F.2d 93, 96, 280 U.S.App. D.C. 21 (D.C. Cir. 1989)). " [A]n agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities," Massachusetts v. EPA, 549 U.S. at 527 (citation omitted), which means that EPA has discretion to determine the timing and priorities of its regulatory agenda, id. at 533. EPA provided a " reasonable explanation as to why it cannot or will not exercise its ...