Case: 18-60606 Document: 00515683679 Page: 1 Date Filed: 12/23/2020
`
`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 18-60606
`
`
`State of Texas; Greg Abbott, Governor of the State of Texas;
`Texas Commission on Environmental Quality; Sierra
`Club,
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`December 23, 2020
`
`Lyle W. Cayce
`Clerk
`
`Petitioners,
`
`
`
`versus
`
`
`United States Environmental Protection Agency;
`Andrew Wheeler, Administrator of the United States Environmental
`Protection Agency,
`
`
`Respondents.
`
`
`
`
`On Petitions for Review of Final Action of the
`United States Environmental Protection Agency
`
`
`
`Before Clement, Elrod, and Duncan, Circuit Judges.
`Jennifer Walker Elrod, Circuit Judge:
`
`The State of Texas and Sierra Club challenge the Environmental
`Protection Agency’s action designating Bexar County, Texas as
`in
`nonattainment and three neighboring counties as in attainment with the 2015
`Ozone National Ambient Air Quality Standards (NAAQS). In 2018, EPA
`modified Texas’s designation of Bexar County from attainment to
`nonattainment. Texas challenges this action on the basis that the State’s
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`modeling projected the county to be in attainment by the year 2020. Sierra
`Club insists that EPA should have designated three of Bexar’s neighboring
`counties (Atascosa, Comal, and Guadalupe) as nonattainment because they
`impacted more than one percent of Bexar’s ambient ozone levels. Because
`the relevant statutory language grants EPA discretionary authority to make
`the changes it “deems necessary,” and because EPA’s interpretation and
`implementation of the statute is reasonable, we DENY both petitions.
`
`I.
`
`A.
`
`Ground level (or ambient) ozone is associated with negative health
`
`effects, such as decreased lung function and respiratory symptoms. See Miss.
`Comm’n on Env’t Quality v. EPA, 790 F.3d 138, 147 (D.C. Cir. 2015) (citation
`omitted). It can also have detrimental effects on trees, vegetation, and crops,
`as well as indirect effects on soil, water, and wildlife. Id. Ozone forms when
`nitrous oxides and volatile organic compounds react with sunlight. Because
`states cannot regulate sunlight, ozone regulation focuses on “ozone-
`precursor producers like power plants, industrial compounds, motor vehicles
`and combustion engines.” Id.
`
`The Clean Air Act establishes a comprehensive system for protecting
`the country’s air quality. 42 U.S.C. §§ 7401–7671q. In this system, state and
`federal actors work together to reduce air pollution. The Clean Air Act
`“requires the Administrator of EPA to promulgate NAAQS for each air
`pollutant for which ‘air quality criteria’ have been issued under . . . 42 U.S.C.
`§ 7408.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 462 (2001). “[A]t
`five-year intervals . . . the Administrator shall complete a thorough review”
`of the NAAQS and “promulgate such new standards as may be appropriate.”
`42 U.S.C. § 7409(d)(1). Once EPA designates a NAAQS for a pollutant,
`“the standards become the centerpiece of a complex statutory regime aimed
`at reducing the pollutant’s atmospheric concentration.” Am. Trucking Ass’ns
`v. EPA, 283 F.3d 355, 358–59 (D.C. Cir. 2002).
`
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`When new standards are issued or old standards are revised, the states
`and EPA work within the Clean Air Act’s structure of cooperative federalism
`to implement the new standards. Governors must “submit to the
`Administrator a list of all areas (or portions thereof) in the State, designating
`[each area] as . . . nonattainment, . . . attainment, . . . or unclassifiable.” Id.
`§ 7407(d)(1)(A). The Administrator then “promulgate[s] the designations
`of all areas (or portions thereof) submitted under subparagraph (A) as
`expeditiously as practicable.” Id. § 7407(d)(1)(B)(i). “In making [those]
`promulgations . . . the Administrator may make such modifications as the
`Administrator deems necessary to the designations of the areas” submitted
`by the states. Id. § 7407(d)(1)(B)(ii). “If the Governor fails to submit the list
`.
`.
`. the Administrator shall promulgate the designation that the
`Administrator deems appropriate for any area . . . not designated by the
`State.” Id. If EPA intends to modify a state’s plan, the Administrator must
`“notify the State and provide such State with an opportunity to demonstrate
`why any proposed modification is inappropriate.” Id.
`
`An area is designated nonattainment if it “does not meet (or . . .
`contributes to ambient air quality in a nearby area that does not meet) the
`national primary or secondary ambient air quality standard for the pollutant.”
`42 U.S.C. § 7407(d)(1)(A)(i). Nonattainment areas are further classified as
`marginal, moderate, serious, severe, or extreme, depending on the severity
`of air pollution. See 40 C.F.R. § 51.1303 (2018). The higher a county’s
`nonattainment classification,
`the more stringent
`the air planning
`requirements are to bring the county back into compliance. 42 U.S.C.
`§§ 7511, 7511a.
`
`Any area that meets the NAAQS for a given pollutant will be
`designated as attainment. 42 U.S.C. § 7407(d)(1)(A)(ii). If an area “cannot
`be classified on the basis of available information as meeting or not meeting
`the [NAAQS] for the pollutant,” it is designated unclassifiable. Id.
`§ 7407(d)(1)(A)(iii).
` EPA considers an “area designated as either
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`to be an
`
`attainment, unclassifiable, or attainment/unclassifiable”
`“[a]ttainment area.” 40 C.F.R. § 51.1100(g) (2015).
`For the 2015 ozone NAAQS, attainment is met “when the 3-year av-
`erage of the annual fourth-highest daily maximum 8-hour average O3 concen-
`tration . . . is less than or equal to 0.070 ppm.” 40 C.F.R. pt. 50, Appx.
`U(4)(a) (2015). EPA requires states to submit “an annual monitoring net-
`work plan which shall provide for the documentation of the establishment
`and maintenance of an air quality surveillance system.” 40 C.F.R.
`§ 58.10(a)(1) (2016). This system uses air monitoring stations to gather air
`quality data. Where monitoring stations are located depends largely upon
`population. This means that many counties with fewer than 350,000 resi-
`dents have no monitoring station. See 40 C.F.R. pt. 58, Appx. D, Table D-2
`(2016).
`
`Counties with no monitoring stations can still be designated nonat-
`tainment if they “contribute[] to ambient air quality” in a nearby nonattain-
`ment area. 42 U.S.C. § 7407(d)(1)(A)(i). EPA evaluates the contribution of
`such counties to neighboring nonattainment counties using a five-factor bal-
`ancing test that considers: (1) air quality data; (2) emissions and emissions-
`related data; (3) meteorological data; (4) geography/topography; and (5) ju-
`risdictional boundaries. See Janet G. McCabe, Acting Assistant Administra-
`tor, Area Designations for the 2015 Ozone National Ambient Air Quality Stand-
`ards, Attachment 3 (Feb. 25, 2016).
`
`Once a county has been designated nonattainment, the state has “the
`primary responsibility for assuring air quality within” its borders. 42 U.S.C.
`§ 7407(a). The state must develop a state implementation plan (SIP) that
`“provides for implementation, maintenance, and enforcement” of the unat-
`tained standard. 42 U.S.C. § 7410(a)(1). At that point, “the Administrator
`shall approve such submittal as a whole if it meets all of the applicable re-
`quirements of this chapter.” 42 U.S.C. § 7410(k)(3).
`
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`B.
`
`In 2015, EPA revised its ozone NAAQS from 0.075 ppm to 0.07 ppm.
`
`National Ambient Air Quality Standards for Ozone, 80 Fed. Reg. 65,292
`(Oct. 26, 2015). Texas submitted the required initial designations for its
`counties. Because Bexar County’s monitors reported a certified 2013–2015
`design value of 0.078 ppm, Texas recommended that it be designated nonat-
`tainment. For seven of Bexar’s neighboring counties (including Atascosa,
`Comal, and Guadalupe counties), Texas recommended a designation of “un-
`classifiable/attainment.” One year later, Texas asked EPA “to allow the
`state more time to show that additional data and considerations” warranted
`an attainment designation for Bexar County. In February 2018, the Texas
`governor wrote EPA to assert that “Bexar County is projected to satisfy the
`2015 NAAQS by 2020, and that projected compliance is sufficient to support
`an attainment designation.”
`
`EPA rejected Texas’s revised designation. It called for public com-
`
`ments, which Texas, Sierra Club, and Environmental Defense Fund submit-
`ted. In July 2018, the Administrator promulgated the final designations for
`the eight counties in the San Antonio region. See Additional Air Quality Des-
`ignations for the 2015 Ozone National Ambient Air Quality Standards—San
`Antonio, Texas Area, 83 Fed. Reg. 35,136–01 (July 25, 2018). The agency
`designated Bexar County as a marginal nonattainment area “based on air
`quality monitoring data from the 3 most recent years of certified data, which
`are 2015–2017.” 83 Fed. Reg. at 35,138–39. The other seven neighboring
`counties were designated as attainment/unclassifiable after EPA conducted
`its five-factor contribution analysis. 83 Fed. Reg. at 35,140.
`
`Texas and Sierra Club timely filed petitions for review. Texas sought
`
`review in this court, while Sierra Club sought review in the D.C. Circuit.
`Texas filed an opposed motion in this court to confirm venue. The D.C. Cir-
`cuit consolidated the challenges and placed them in abeyance pending this
`court’s resolution of the venue motion. This court granted Texas’s motion
`
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`to confirm venue. The D.C. Circuit then granted Texas’s motion to transfer
`the consolidated cases to this court. Sierra Club continues to oppose venue
`in this court.1
`
`II.
`
`We first address whether venue is proper in the Fifth Circuit and
`
`conclude that it is.
`
`A.
`
`The Clean Air Act’s venue provision provides for judicial review of
`
`agency actions in either the D.C. Circuit or the “appropriate circuit,”
`meaning the circuit within which the agency’s action applies. 42 U.S.C.
`§ 7607(b)(1). We have previously explained that § 7607(b)(1) is a “two-fold
`provision” that is both “a conferral of jurisdiction upon the courts of
`appeals” and a requirement that “delineates the appropriate venue for
`challenges.” Texas v. EPA, 829 F.3d 405, 418 (5th Cir. 2016).
`
`According to the Act’s venue scheme, challenges to actions which are
`
`“locally or regionally applicable” belong in the appropriate regional court of
`appeals. On the other hand, venue lies exclusively in the D.C. Circuit under
`one of two conditions: first, if the petition seeks review of an “action of the
`Administrator in promulgating any [NAAQS] . . . or any other nationally
`applicable regulations promulgated, or
`final action
`taken, by
`the
`administrator”; or second, if the challenged action, although locally or
`regionally applicable, “is based on a determination of nationwide scope or
`effect and in taking such action the Administrator finds and publishes that
`
`
`
`1 Both Texas and Sierra Club have properly intervened in the other’s petition, and
`Sierra Club is joined in its intervention by the Environmental Defense Fund. Sierra Club
`has standing to pursue its challenge. It has submitted affidavits from members who live and
`work in the San Antonio area and enjoy the area’s recreational activities. Environmental
`Defense Fund also has associational standing based on similar affidavits from members who
`live in San Antonio and participate in outdoor activities. See Sierra Club v. EPA, 939 F.3d
`649, 664 (5th Cir. 2019).
`
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`such action is based on such a determination.” 42 U.S.C. § 7607(b)
`(emphasis added).
`
`The court—not EPA—determines both the scope of an action’s
`
`applicability and whether it was based on a determination of nationwide
`scope or effect. See Texas, 829 F.3d at 420–21 (noting that the statute uses
`clear language and that the statutory text does not confer authority on the
`Administrator to make these determinations); Am. Rd. & Transp. Builders
`Ass’n v. EPA, 705 F.3d 453, 455–56 (D.C. Cir. 2013) (according EPA no
`deference in determination that rulemaking was not nationally applicable).
`
`B.
`
`Sierra Club contends that venue lies in the D.C. Circuit because the
`San Antonio designations are part of a “nationally applicable regulation” and
`because the Administrator acted arbitrarily and capriciously by failing to
`make a publication to that effect. Texas and EPA respond that venue is ap-
`propriate in this court because the designations are only “locally or regionally
`applicable” and the EPA did not publish a finding that they were based on a
`determination of nationwide scope or effect. The latter are correct.
`
`This case involves a locally or regionally applicable action. That
`action is EPA’s final designation of Atascosa, Bexar, Comal, and Guadalupe
`counties as attainment or nonattainment. See 83 Fed. Reg. at 35,136. This
`action is “locally or regionally applicable” because it is directed only at four
`contiguous Texas counties. Compare Texas v. EPA, No. 10-60961, 2011 WL
`710598, at *3 (5th Cir. Feb. 24, 2011) (holding that agency action affecting
`thirteen states that spanned seven federal circuits was nationally applicable),
`with Am. Road & Transp. Builders Ass’n, 705 F.3d at 455–56 (holding that
`agency action concerning a California SIP was locally or regionally
`applicable).
`
`Locally or regionally applicable actions are limited to the D.C. Circuit
`only when the action (1) is “based on a determination of nationwide scope or
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`effect” and (2) “the Administrator finds and publishes that such action is
`based on” a determination of nationwide scope or effect. 42 U.S.C.
`§ 7607(b)(1). Here, the Administrator published no such determination.
`When the Administrator does not announce that an action is based on a
`determination of nationwide scope or effect, “the exception transferring
`venue to the D.C. Circuit does not apply.” Texas, 829 F.3d at 420 n.17.
`
`Relying on a concurring opinion from another circuit, Sierra Club
`contends that EPA’s failure to publish a nationwide scope or effect
`determination was “arbitrary and capricious.” See Nat’l Env’t Dev. Ass’ns
`Clean Air Project v. EPA, 891 F.3d 1041, 1053 (D.C. Cir. 2018) (Silberman, J.,
`concurring). That argument does not comport with the text of the statute or
`this circuit’s precedent. This court “independently consider[s] whether the
`Administrator has published a suitable finding.” Texas, 829 F.3d at 420 n.17
`(emphasis added). Arbitrary and capricious review does not govern the
`question of whether the EPA should have published a nationwide-scope-or-
`effect determination without any legal requirement to do so.
`
`The Clean Air Act allows EPA to direct regionally applicable actions
`that are “based on a determination of nationwide scope or effect” to the D.C.
`Circuit. The Act does not require EPA to send such cases there. Instead,
`locally or regionally applicable actions are properly before the regional
`circuits unless the action is both “based on a determination of nationwide
`scope or effect” and “the Administrator finds and publishes” such a
`conclusion. 42 U.S.C. § 7607(b)(1). Sierra Club’s reading gives no
`independent meaning to the text’s conditioning venue on whether “the
`Administrator finds and publishes” a nationwide conclusion. Cf. Corley v.
`United States, 556 U.S. 303, 314 (2009) (observing that “one of the most basic
`interpretive canons” is “that a statute should be construed so that effect is
`given to all its provisions”) (internal quotation marks and modifications
`omitted).
`
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`Under Sierra Club’s reading, there would be no need for “the
`Administrator [to] find[] and publish[]” its determination. See 42 U.S.C.
`§ 7607(b)(1). The court already independently determines whether an action
`actually was “based on a determination of nationwide scope or effect.” Id.
`If Congress desired courts, and not the agency, to be the final adjudicator, it
`would have left out entirely the requirement that “the Administrator find[]
`and publish[]” its determination. To Sierra Club’s “proposal, the short
`answer is that Congress did not write the statute that way.” Corley, 556 U.S.
`at 315 (internal quotation marks and modifications omitted). Instead,
`Congress instructed that regional actions based on national determinations
`are directed to the D.C. Circuit if and only if “the Administrator finds and
`publishes that such action is based on such a determination.” 42 U.S.C.
`§ 7607(b)(1) (emphasis added).
`
`The Act “gives EPA discretion to transfer venue” when the
`nationwide scope or effect condition is satisfied. Texas, 829 F.3d at 421.
`Congress similarly gave EPA discretion to send such actions to the regional
`circuits—and EPA exercises that discretion when it declines to “publish[]
`that such action is based on such a determination.” 42 U.S.C. § 7607(b)(1).
`That decision is “committed to agency discretion by law.” See 5 U.S.C.
`§ 701(a)(2); Texas, 829 F.3d at 425 (explaining that the “standard of review
`of Clean Air Act actions tracks standards provided by Administrative
`Procedure Act, 5 U.S.C. § 706”). A court may compel purportedly withheld
`action (here, the failure to publish a nationwide finding) only when the action
`is “legally required.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 63
`(2004).
`
`The Clean Air Act might read that way if it said that the Administrator
`must publish its determination when it so finds. Instead, the Act says that
`venue is limited to the D.C. Circuit “if in taking such action the
`Administrator finds and publishes” that determination.
` 42 U.S.C.
`
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`§ 7607(b)(1) (emphasis added). That is not the language of legal obligation.
`Cf. Norton, 542 U.S. at 63 (observing that the APA’s authorization for courts
`to “‘compel agency action unlawfully withheld’” “carried forward the
`traditional practice” of the writ of mandamus, which was normally issued
`only where “an official had no discretion whatever”) (internal quotation
`marks and alterations omitted) (quoting 5 U.S.C. § 706(1)).
`
`Congress’s scheme also makes sense. All nationally applicable actions
`go to the D.C. Circuit, which promotes national uniformity. All locally or
`regionally applicable actions that are based on
`local and regional
`determinations go to the regional circuits, which promotes responsiveness
`and attention to local and regional diversity. For the hybrid type of actions—
`locally or regionally applicable actions based on determinations of nationwide
`scope or effect—Congress gave the EPA Administrator, as the nation’s
`national regulator, discretion to decide. The way EPA communicates that
`decision is the publication (or lack of publication) of its determination. And
`that message (whether it is published, or not) instructs petitioners where to
`seek judicial review. Sierra Club’s reading does violence to that statutory
`scheme.
`
`Courts decide whether an action is locally applicable and whether an
`action is based on a national determination. But when a locally applicable
`action is based on a determination of nationwide scope or effect, the EPA has
`discretion to select the venue for judicial review. When EPA directs judicial
`review of an appropriate agency action to a regional circuit instead of the D.C.
`Circuit, Congress has entitled neither Sierra Club nor federal courts to
`second-guess that decision.
`
`III.
`
`We next turn to Texas’s challenge to EPA’s designation of Bexar
`County as a nonattainment county. The main dispute between Texas and
`
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`EPA is whether EPA had the statutory authority to change Texas’s
`recommended designation of Bexar County
`from attainment
`to
`nonattainment. Texas maintains that the Clean Air Act authorizes such a
`change only when it is “necessary,” meaning that it is unavoidable and must
`be done, and that it was not necessary here. EPA counters that the statute
`authorizes changes that “the Administrator deems necessary,” which grants
`discretionary authority to EPA to make such determinations and that, in any
`event, EPA did not err in its determination. We agree with EPA.
`
`A.
`
`Under the Administrative Procedure Act, we will set aside an EPA
`
`action that is “arbitrary, capricious, an abuse of discretion, not in accordance
`with law, or unsupported by substantial evidence on the record taken as a
`whole.” Texas v. EPA, 690 F.3d 670, 676 (5th Cir. 2012) (quoting Sun
`Towers, Inc. v. Schweiker, 694 F.2d 1036, 1038 (5th Cir. 1983)); 5 U.S.C.
`§ 706(2). To make that determination, we look to whether EPA has provided
`a “satisfactory explanation for its action including a rational connection
`between the facts found and the choice made. In reviewing that explanation,
`we must consider whether the decision was based on a consideration of the
`relevant factors and whether there has been a clear error of judgment.” Motor
`Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
`(1983) (internal quotation marks and citation omitted).
`
`This court applies the familiar Chevron framework to questions
`involving EPA’s interpretations of the Clean Air Act. BCCA Appeal Grp. v.
`EPA, 355 F.3d 817, 824 (5th Cir. 2003), as amended on denial of reh’g and reh’g
`en banc (Jan. 8, 2004) (citing Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837,
`842–43 (1984)). First, the court asks “whether Congress has directly spoken
`to the precise question at issue” or whether, instead, the statute is
`ambiguous. Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 392 n.10 (5th Cir.
`
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`2014) (quoting Chevron, 467 U.S. at 842–43)). We use traditional tools of
`construction, focusing on statutory text, context, structure, and history. See
`id. Where the statute is unambiguous, the inquiry ends. Chevron, 467 U.S.
`at 843. However, if the court determines the statute is ambiguous, we ask if
`the agency’s interpretation is “based on a permissible construction of the
`statute.” Id. Next, we ask if the agency’s interpretation is “based on a
`permissible construction of the statute.” Id. If the construction is
`reasonable, the court must accept it, “even if it differs from how the court
`would have interpreted the statute in the absence of an agency regulation.”
`Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 158 (2013) (citing Nat’l
`Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980
`(2005)). “Federal courts accord ‘great deference’ to the EPA’s construction
`of the [Clean Air Act].” Luminant Generation Co. v. EPA, 714 F.3d 841, 851
`(5th Cir. 2013) (quoting Union Elec. Co. v. EPA, 427 U.S. 246, 266 (1976)).
`
`B.
`
`We begin by noting that Texas does not deny that, for the relevant
`
`2015–17 period, Bexar County did not comply with the 2015 NAAQS.
`Instead, the state argues that it, not EPA, is tasked with determining a
`county’s attainment status and that Bexar County would have reached
`attainment by 2020 without a change in designation. EPA’s role is merely
`clerical in promulgating the state’s designation unless it is “necessary” to
`change it. Here, Texas argues that EPA should have accepted the state’s
`designation, which was based partly on monitoring data and partly on future
`modeling data, because it was not necessary to make a change.
`
`Importantly, the Clean Air Act establishes a system of “cooperative
`
`federalism.” Texas, 829 F.3d at 428 (quoting Luminant Generation Co., LLC
`v. EPA, 675 F.3d 917, 921 (5th Cir. 2012)). The state’s role at the attainment
`designation phase
`is to make “initial designations.”
` 42 U.S.C.
`
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`§ 7407(d)(1)(A). Once that is complete, EPA notifies the state of any
`contemplated modifications, gives time for appropriate comments, and then
`promulgates a final designation. EPA “may either promulgate [the initial
`designations] as submitted or modify them as it ‘deems necessary.’” Miss.
`Comm’n, 790 F.3d at 146 (quoting 42 U.S.C. § 7407(d)(1)). At that point,
`the state takes the final designations and crafts a SIP detailing how the state
`plans to achieve attainment within a specified time frame. See id.; Texas, 829
`F.3d at 411. EPA, not the state, has the primary responsibility for
`promulgating attainment designations under the Clean Air Act. The State
`has primary responsibility for creating the SIP. Texas, 829 F.3d at 411.
`
`The state’s first argument leads us to the first step of our Chevron
`analysis. We must determine whether “Congress has directly spoken to the”
`question of when EPA may modify a state’s proposed attainment
`designations. Chevron, 467 U.S. at 842–43. Texas contends that Congress
`has expressly cabined EPA’s authority to alter initial designations to cases
`where it is “necessary” to do so. The state focuses on the meaning of the
`word “necessary,” arguing that it unambiguously means “inescapable” or
`“compulsory.” Under this reading, EPA can alter a proposed designation
`only when it is essential to do so. EPA counters that the statute grants the
`Administrator discretion to make changes whenever it “deems necessary.”
`Therefore, Congress has given the agency discretion to determine when
`changes are necessary, not merely authority to make changes when it has no
`other option. EPA has the better reading of the statute.
`
`“As this is a question of statutory interpretation, we begin with the
`
`text of the statute.” United States v. Lauderdale Cnty., 914 F.3d 960, 961 (5th
`Cir. 2019). After a state makes its initial attainment designation, the Clean
`Air Act states that the EPA “Administrator may make such modifications as
`the Administrator deems necessary” before promulgating the designations.
`42 U.S.C. § 7407(d)(1)(B)(ii) (emphasis added). The Act “says nothing of
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`No. 18-60606
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`what precisely will render a modification ‘necessary.’” Catawba Cnty. v.
`EPA, 571 F.3d 20, 35 (D.C. Cir. 2009). “Under Chevron, we read Congress’
`silence as a delegation of authority to [the agency] to select from among
`reasonable options.” EPA v. EME Homer City Generation, L.P., 572 U.S. 489,
`515 (2014).
`
`If we were looking at the word “necessary” in isolation, we might
`agree with Texas.2 However, the word does not exist in a vacuum. It is part
`of a larger scheme, one which grants discretion to the Administrator to make
`modifications that it “deems necessary.” If Congress had said instead that
`the Administrator may only make changes “when necessary,” Texas’s
`argument might have more merit. Because the statute says that the
`Administrator “may” make changes that it “deems necessary,” however, it
`is clear that Congress has delegated discretionary authority to EPA to
`determine when adjustments should be made.
`
`We turn, then, to the second step of our Chevron analysis: whether
`EPA’s construction of the statute is permissible. We conclude that it is. EPA
`has determined that a change
`is necessary when a designation
`is
`“inconsistent with the statutory language.” 83 Fed. Reg. at 35,138/1. Thus,
`“any area that does not meet the [NAAQS]” must be designated
`“nonattainment,” even if the state initially designated it as “attainment.”
`
`
`
`2 Texas cites to several dictionary definitions for the word “necessary,” all of
`which the state argues restrict EPA’s discretion by uniformly defining the word as one that
`does not bestow discretion. See, e.g., 10 Oxford English Dictionary 275–76 (2d ed. 1989)
`(defining necessary as “indispensable, requisite, essential, needful; that cannot be done
`without); Merriam Webster’s Collegiate Dictionary 776 (10th ed. 1993) (defining necessary
`as “of an inevitable nature: inescapable”). These definitions do not change our analysis.
`“A dictionary definition states the core meanings of a term. It cannot delineate the
`periphery,” and the meanings of common words (which typically have multiple definitions)
`must be determined in the context in which they appear. Antonin Scalia & Bryan A.
`Garner, Reading Law: The Interpretation of Legal Texts 418–19 (2012).
`
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`No. 18-60606
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`42 U.S.C. § 7407(d)(1)(A). Texas does not argue that this construction is
`impermissible, and we agree that it is a reasonable interpretation of the
`statute.
`
`C.
`
`With this definition in mind, we next determine whether EPA’s
`
`decision to change Bexar County’s designation was arbitrary and capricious.
`Because Bexar County was not compliant with the 2015 NAAQS when EPA
`promulgated its designation, we conclude that the Clean Air Act and the
`Administrative Procedure Act allowed the change.
`
`Texas does not contend that, at the time of assessment, Bexar County
`
`met the 2015 NAAQS. Instead, they argue that because their projection data
`indicated that Bexar County would be in compliance by 2020,3 the county
`should have been designated as attainment. EPA’s failure to consider the
`modeling data was, in Texas’s view, arbitrary and capricious. This argument
`relies on the Dictionary Act, which states that “unless the context indicates
`otherwise . . . words used in the present tense include the future as well as
`the present.” 1 U.S.C. § 1. According to Texas, this means that when 42
`U.S.C. § 7407(d)(1)(A)(i) says that any county that “does not meet” the
`NAAQS should be designated nonattainment, what the statute really means
`is that any county that “does not [now, and will not in the future,] meet” the
`NAAQS should be designated nonattainment.
`
`According to Texas, even if EPA has discretion to determine when a
`change is necessary, EPA is required to consider modeling data that is
`relevant to an area’s attainment designation. If the Dictionary Act compels
`EPA to designate an area as attainment if it will meet the NAAQS in the
`
`
`
`3 2020 is nearly over, and neither EPA nor Texas has notified the court whether
`Bexar County has achieved attainment or not.
`
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`Case: 18-60606 Document: 00515683679 Page: 16 Date Filed: 12/23/2020
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`No. 18-60606
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`future, then it would be arbitrary and capricious to ignore that relevant
`information. See State Farm Mut. Auto. Ins. Co., 463 U.S. at 43.4
`
`We think that the provision of the Dictionary Act cited by Texas does
`
`not apply here. The future-tense presumption applies only where context
`does not indicate otherwise. 1 U.S.C. § 1. Context makes it clear in this case
`that the designation process considers only the present tense. The text of the
`Clean Air Act provides that a state must designate an area nonattainment if
`it “does not meet” the NAAQS. 42 U.S.C. § 7407(d)(1)(A)(i). An area
`designated as “marginal” nonattainment (such as Bexar County) must then
`meet the NAAQS within three years. 42 U.S.C. § 7511(a)(1); 40 C.F.R.
`§ 51.1303 (2018). It would be contradictory for EPA to require marginal
`nonattainment areas to comply within three years if projected compliance
`within three years triggered an attainment designation.
`
`Texas contends that it would have attained the 2015 NAAQS by the
`
`year 2020 without a SIP anyway and that this is the distinguishing
`characteristic. The state’s argument, however, is based not on fact, but on
`supposition. The statute uses concrete terms: either a county does or does
`not meet the NAAQS. Even with the b