217 F.3d 861 (D.C. Cir. 2000)
Chemical Manufacturers Association and Cement Kiln Recycling Coalition,Petitionersv.Environmental Protection Agency,RespondentEnvironmental Technology Council, Inc.,Intervenor
No. 99-1236, 99-1514
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 3, 2000Decided July 25, 2000

On Petitions for Review of an Order of the  Environmental Protection Agency
Richard G. Stoll argued the cause for petitioners.  With  him on the briefs were David F. Zoll, Ronald A. Shipley,
Michael W. Steinberg, Joshua D. Sarnoff and David P.  Novello.
Christopher S. Vaden, Attorney, U.S. Department of Justice, argued the cause for respondent.  With him on the brief  were Peter D. Coppelman, Acting Assistant Attorney General, and Steven E. Silverman, Attorney, Environmental Protection Agency.
David R. Case was on the brief for intervenor Environmental Technology Council, Inc.
Before:  Williams, Sentelle and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Dissenting Opinion filed by Circuit Judge Sentelle.
Tatel, Circuit Judge:


1
Petitioners challenge an Environmental Protection Agency rule establishing an unusual bifurcated schedule for hazardous waste combustors to comply  with strict new emission standards.  To meet the new standards, combustors must either modify existing facilities and  processes to bring emission levels below the new limits or  cease burning hazardous waste altogether.  Combustors  electing to make the necessary changes have three years to  comply, but under EPA's "early cessation" program, combustors that find it not cost-effective to make the required  modifications must cease burning hazardous waste within two  years.  Although we reject petitioners' argument that EPA  lacks statutory authority to implement an early cessation  program, we vacate the rule because, as the Agency concedes,  it failed to establish that this particular early cessation program, which imposes substantial costs on hazardous waste  combustors, will have any environmental or health benefits.

I.

2
Three types of businesses burn hazardous waste.  Professional hazardous waste treatment and disposal companies  operate large commercial incinerators, charging fees to dispose of hazardous wastes generated by their customers. Some hazardous waste producers, such as chemical manufacturers, operate their own on-site incinerators to dispose of  waste generated in the manufacturing process.  Cement manufacturers operate kilns in which they occasionally supplement the fossil fuels they burn with hazardous waste to  generate additional heat energy, to recover usable materials  from treated waste, and to earn additional revenue from  disposal fees.  Petitioners Chemical Manufacturers Association and Cement Kiln Recycling Coalition represent the latter  two types of hazardous waste combustors.  Environmental  Technology Council, intervenor in support of EPA's rule,  represents commercial waste incinerators.


3
All three types of hazardous waste combustors are regulated by Subtitle C of the Resource Conservation and Recovery  Act ("RCRA"), 42 U.S.C. §§ 6901 et seq., which "establishes a  comprehensive 'cradle-to-grave' regulatory program for the  treatment, storage, and disposal of hazardous waste."  Horsehead Resource Dev. Co. v. Browner, 16 F.3d 1246, 1252 (D.C.  Cir. 1994).  Existing EPA standards, promulgated pursuant  to RCRA and upheld for the most part in Horsehead, require  hazardous waste combustors to operate under conditions sufficient "to protect human health and the environment."  42  U.S.C. § 6924(a).


4
The Clean Air Act ("CAA"), 42 U.S.C. §§ 7401 et seq.,  foregoing RCRA's risk-based approach in favor of technologybased regulation, directs EPA to establish emission standards  for hazardous air pollutants based on the "maximum achievable control technology" known as MACT.  42 U.S.C.  § 7412(g)(2).  The EPA Administrator must list categories  and subcategories of hazardous air pollutant emissions  sources, then set MACT standards for each category at a  level


5
requir[ing] the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section (including a prohibition on such emissions, where achievable) that the Administrator, taking into consider-ation the cost of achieving such emission reduction, and any non-air quality health and environmental impact sand energy requirements, determines is achievable for new or existing sources in the category or subcategory to which such emission standard applies.


6
42 U.S.C. § 7412(d)(2).  Once EPA sets the emission standards, the Act, in language central to this case, requires the  Agency to establish a "compliance date or dates for each  category or subcategory of existing sources, which shall provide for compliance as expeditiously as practicable, but in no  event later than 3 years after the effective date of such  standard."  42 U.S.C. § 7412(i)(3)(A).  Sources demonstrating a need for additional time to complete installation of  pollution control equipment qualify for a one-year extension.42 U.S.C. § 7412(i)(3)(B).


7
Acting pursuant to RCRA and the Clean Air Act, EPA  promulgated revised emission standards for hazardous waste  combustors.  See Revised Standards for Hazardous Waste  Combustors, 61 Fed. Reg. 17,358 (1996).  In the original  notice of proposed rule making, EPA predicted that most  affected combustors would have to make substantial modifications to their equipment in order to reduce emissions to levels  mandated by the new standards.  In order to allow sufficient  time for combustors to implement necessary modifications,  EPA proposed its usual three-year compliance period.  Id. at  17,416.


8
The Agency recognized that because certain combustors,  namely kilns and on-site incinerators, burn hazardous waste  as an adjunct to their primary business, they might find it  more feasible to stop burning hazardous waste altogether  rather than invest in new pollution controls.  Cement kilns  could switch to non-hazardous fuels, and operators of on-site  incinerators might find it more cost-effective to contract with  commercial hazardous waste incinerators.  To "ensure that  only those facilities that plan to comply with the new regulations are allowed to burn hazardous waste during the [threeyear] compliance period," id., EPA proposed an early cessation program under which kilns and on-site incinerators that  decide against making the improvements necessary to continue burning hazardous waste under the new standards would  be required to "immediately stop burning hazardous waste  when the owner or operator first determines that [compliance  will not be achieved] by the applicable date."  Id.


9
After considering public comment, EPA adopted a final  rule requiring owners and operators of hazardous waste  combustion facilities to submit a Notification of Intent to  Comply, known as a "NIC," within a year of the new standards' effective date.  See Hazardous Waste Combustors; Revised Standards;  Final Rule, 63 Fed. Reg. 33,782, 33,80609 (1998).  Each combustor must indicate in the NIC whether  it plans to comply, i.e., whether it plans to continue burning  hazardous wastes under the new standards, and if so, what  emission-control measures it will take to ensure timely compliance.  Combustors indicating an intent to comply must file  a two-year Progress Report describing in detail all compliance modifications planned and undertaken;  they must comply with the new standards within three years.  Id. at 33,806.Kilns and on-site incinerators that indicate an "intent not to  comply"--the focus of this case--must cease burning hazardous waste within two years of the effective date.  The Agency  explained the process as follows:


10
The source can use the NIC to notify either the source's intent to come into compliance with the new standards, or the source's intent not to come into compliance with the new standards. The NIC must be submitted to the permitting agency within a year of the final standards being promulgated, and the Progress Report within two years


11
.....


12
The NIC will not serve as a basis for requiring facilities to cease burning hazardous waste if they intend to comply with the emission standards of this Subpart....EPA would like to clarify that its intent has never been to shut a source down completely.  The source might be required to cease burning hazardous waste;  however, it would not be precluded from burning non-hazardous waste or other alternative fuels. However, those source who indicate in the NIC their intent not to comply with the applicable emission control requirements of this Sub-part will be required to stop burning hazardous waste within two years of the effective date of the emission control requirements.


13
Id. at 33,806-07.


14
Until this rule making, EPA had always set a single compliance date for each category of emission source;  never before  had it required emission sources to choose between complying  or ceasing the regulated activity.  Several commenters objected to the early cessation program, arguing that EPA lacks  statutory authority to impose such an unprecedented requirement.  The Agency responded:


15
EPA believes that compliance as expeditiously as practicable will have numerous benefits for human health and the environment.  In particular, for those sources that do not intend to ultimately come into compliance with the emission standards of this Subpart, expeditious compliance would be achieved by ceasing to burn hazardous waste.  The Agency anticipates that numerous sources will choose not to come into compliance with the requirements of this rule, and will cease burning hazardous waste prior to issuance of the rule or at some later date, but prior to the compliance date.  This section is intend-ed to expeditiously limit the burning of hazardous waste by those sources who do not intend to come into compliance with the requirements of the emission standards of this Subpart, but continue to burn hazardous waste after the effective date of the emission standards of this Subpart.  These sources are, quite simply, able to meet the standards earlier than the three years allowed for sources


16
which will continue to burn hazardous waste. Thus, for this class of facilities, EPA is creating a means of compliance "as expeditiously as practicable."


17
Id. at 33,810.


18
Petitioners challenge the early cessation program, claiming  that although it imposes substantial costs, it will produce no  environmental benefits because hazardous waste currently  burned by kilns and on-site incinerators will simply be shifted  to commercial incinerators operating under the same emission standards.  Petitioners also contend that because CAA section 112(i)(3), 42 U.S.C. § 7412(i)(3), requires EPA to set  compliance dates based on the technical feasibility of attaining the MACT standards, once EPA set a three-year deadline, it had no authority to require earlier cessation.  Finally,  petitioners challenge the Notice of Intent to Comply and the  two-year Progress Report filing requirements.


19
EPA, supported by intervenor Environmental Technology  Council, responds that because some sources will choose to  comply by ceasing to burn hazardous waste rather than  installing new pollution controls, and because that method of  compliance can be achieved well before the three-year compliance date, early cessation is required by section 112(i)(3)(A)'s  "compliance as expeditiously as practicable" mandate.  EPA  defends the NIC and Progress Report requirements as not  only critical to enforcing the early cessation rule, but also as  an important means of increasing public participation in  RCRA's permit modification process.

II.

20
We begin with Petitioners' argument that the early cessation program is arbitrary and capricious and exceeds EPA's  authority under the Clean Air Act.  According to petitioners,  CAA section 112(i)(3)(A) requires EPA to set compliance  dates based only on "the technical ability of facilities to attain  timely compliance with the MACT standards."  Once EPA  determined that combustors need three years to comply,  petitioners argue, then "no provision of the CAA provides any  support for (1) specifying early compliance dates based on  intentions to comply or (2) forcing facilities to cease burning  waste prior to the established compliance date."


21
This argument requires little discussion.  Petitioners point  to nothing in either the CAA or RCRA that requires EPA to  set a single uniform compliance date for all combustors.  In  fact, as the Agency points out, the CAA speaks in terms of  "compliance date or dates" and requires "compliance as expeditiously as practicable, but in no event later than 3 years  after the effective date of such standard."  42 U.S.C. 7412(i)(3)(A) (emphasis added).  Responding to this directive,  the Agency determined that combustors can achieve "compliance" not just through installation of pollution controls, but  also through cessation of hazardous waste combustion.  The  Agency also determined that cessation can be accomplished  more "expeditiously" than other compliance methods such as  pollution controls.  "These sources are, quite simply, able to  meet the standards earlier than the three years allowed for  sources which will continue to burn hazardous waste."  63  Fed. Reg. at 33,810.  Thus, the Agency argues, its early  cessation rule is just an alternative compliance date tailored  to an individual source's chosen method of compliance.  "As a  practical matter," the Agency explains in its brief, the early  cessation rule simply "established two subcategories for compliance purposes here:  sources complying by ceasing to burn  hazardous wastes, and sources complying by other means  (adding air pollution control devices, adopting waste minimization process changes, etc.)."  Because EPA determined  that compliance by cessation requires less time than compliance through installation of pollution controls, it in effect set  two different compliance dates depending on which route a  particular combustor elects to take.


22
Were there nothing more to this case, we would agree with  EPA that section 112(i)(3)(A)'s requirement of "compliance as  expeditiously as practicable" can be read to provide authority  for an early cessation program.  Indeed, at oral argument  petitioners conceded that even under their reading of the  CAA, EPA could accomplish precisely the same result by  setting the compliance date for all combustors at two years  rather than three and then granting one-year extensions to  combustors electing to comply by installing emission control  devices.  See 42 U.S.C. 7412(i)(3)(B) (authorizing the Administrator to issue extension permits to sources "if such additional period is necessary for the installation of controls.")


23
But this case is not so simple.  EPA claimed in the  rule making that its early cessation requirement would have  "numerous benefits for human health and the environment."


24
63 Fed. Reg. at 33,810.  Yet as the Agency now acknowledges, it neither pointed out what those benefits would be nor  explained how any such benefits might result from the early  cessation program.  In issuing the rule, moreover, EPA  expressly recognized that the early cessation program would  result in hazardous waste being shifted away from kilns and  on-site incinerators that comply with existing RCRA standards but elect to cease burning hazardous waste rather than  meet the new MACT standards.  During the year between  the early cessation and compliance dates, hazardous waste  will simply be redirected to other facilities to be burned under  essentially the same conditions.


25
Combustion systems that can no longer cover costs ...are projected to stop burning hazardous waste.  Hazardous wastes from these systems will likely be real located to other viable combustion systems at the same facility if there is sufficient capacity, alternative combustion facilities that continue burning, or waste management alternatives (e.g., solvent reclamation).  Because combustion is likely to remain the lowest cost option, we expect most real located wastes will continue to be managed at combustion facilities.


26
NESHAPS:  Final Standards for Hazardous Air Pollutants  for Hazardous Waste Combustors, 64 Fed. Reg. 52,828,  53,017 (1999).  In other words, the early cessation rule will  not significantly reduce the amount of hazardous waste produced, the amount of hazardous waste burned, or the levels of  hazardous air pollutant emissions.  It will instead merely  reallocate which combustion facilities process the same hazardous waste under the same conditions.  At oral argument,  EPA counsel candidly conceded that we must resolve this  case on the assumption that the early cessation program may  have no environmental benefits at all.  Indeed, as petitioners  point out, to the extent that transporting hazardous waste to  commercial incinerators increases the risk of leakage, spills,  or contamination, early cessation might even result in net  environmental damage.


27
In view of the state of this record and EPA's concessions,  we think that the Agency's action represents a classic case of  arbitrary and capricious rulemaking.  Not only did the Agency fail to "articulate a satisfactory explanation for its action  including a rational connection between the facts found and  the choice made," Motor Vehicle Mfr. Ass'n v. State Farm  Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation  marks omitted), but by claiming "numerous benefits for human health and the environment," 63 Fed. Reg. at 33,810,  where none were found, EPA "offered an explanation for its  decision that runs counter to the evidence before the agency,"  State Farm, 463 U.S. at 43.


28
According to EPA, however, petitioners' arguments based  on the absence of health or environmental benefits "miss the  point."  The point, the Environmental Protection Agency tells  us, is not environmental protection.  Instead, the Agency  argues, it must implement the early cessation program regardless of environmental impact because CAA section  112(i)(3)(A) requires "compliance as expeditiously as practicable" and that phrase "appears to mandate EPA's selection of  a two-year compliance date for sources choosing the compliance option of ceasing to burn hazardous wastes."  EPA's  argument goes like this:  (1) "Compliance" with an emission  standard must include "virtually any means of avoiding noncompliance."  (2) "Compliance date" can thus be interpreted  to include "the date that a source, subject to the rule because  it burns hazardous waste, ceases air emissions attributable to  burning those wastes."  (3) Since "compliance" means cessation as well as installation of pollution controls, then "compliance as expeditiously as practicable" must require early cessation because cessation can be accomplished sooner than  installation of emission-control equipment.  (4) Allowing combustors intending to cease burning hazardous waste a full  three years to continue burning would violate the statute's  command to "provide for compliance as expeditiously as  practicable" regardless of the environmental effect of requiring early cessation.


29
As with any question of statutory interpretation, we first  ask "whether Congress has directly spoken to the precise  question at issue."  Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984).  In  this case, the answer is no.  Nothing in the Clean Air Act  addresses whether "compliance as expeditiously as practicable" requires early cessation.  Indeed, as the Agency concedes, neither the Act nor its legislative history suggests that  Congress ever considered early cessation or the possibility  that if EPA imposes a cessation deadline before a compliance  deadline, sources not subject to early cessation but which  burn no cleaner would take up the slack during the interim  and produce the very same emissions level.


30
Since the Clean Air Act is "silent or ambiguous with  respect to the specific issue," id. at 843, we ask whether the  Agency's interpretation of section 112(i)(3)(A) to mandate  early cessation absent environmental benefit is "a permissible  construction of the statute," id., i.e., whether it is "reasonable  and consistent with the statute's purpose."  Independent Ins.  Agents of Am., Inc. v. Hawke, 211 F.3d 638, 643 (D.C. Cir.  2000).  The Clean Air Act's purpose is "to protect and  enhance the quality of the Nation's air resources so as to  promote the public health and welfare and the productive  capacity of its population," 42 U.S.C. § 7401(b)(1), constrained  of course by section 112(i)(3)'s explicit concern over practicability.  In its rulemaking, EPA, apparently recognizing that  its regulations must be consistent with the Clean Air Act's  goals, claimed that early cessation "will have numerous benefits for human health and the environment."  63 Fed. Reg. at  33,810.  But having realized it had made no findings to  support this claim, the Agency simply abandoned any attempt  to reconcile its reading of section 112(i)(3)(A) with the statute's objectives.  Indeed, nothing in the record suggests the  early cessation program will, directly or indirectly, further  the Clean Air Act's environmental goals.


31
We think it unreasonable for the Agency to have interpreted the phrase "compliance as expeditiously as practicable" as


32
requiring it to impose costly obligations on regulated entities  without regard to the Clean Air Act's purpose.  See, e.g.,  United States Nat'l Bank of Oregon v. Independent Ins.  Agents of Am., Inc., 508 U.S. 439, 455 (1993) ("Over and over  we have stressed that '[i]n expounding a statute, we must not  be guided by a single sentence or member of a sentence, but  look to the provisions of the whole law, and to its object and  policy.' ") (quoting United States v. Heirs of Boisdore, 49 U.S.  (8 How.) 113, 122 (1849)).  As we said in Continental Air  Lines, Inc. v. DOT, "the critical point is whether the agency  has advanced what the Chevron Court called 'a reasonable  explanation for its conclusion that the regulations serve the  ... objectives [in question].' "  843 F.2d 1444, 1452 (D.C. Cir.  1988) (quoting Chevron, 467 U.S. at 863) (alteration in original).  Here, EPA has failed to do so.  See also, e.g., Dole v.  United Steelworkers of America, 494 U.S. 26, 37 (1990)  (rejecting agency's interpretation of a statute where "none of  Congress' enumerated purposes would be served").


33
Unlike Chevron, see dissenting op. at 2-3, this case does  not involve a policy disagreement between this court and  EPA over which of two possible interpretations would best  achieve the Clean Air Act's goals.  Here, the Agency readily  concedes it has no evidence to suggest the challenged program is consistent with the Act's aims.  See Continental Air  Lines, 843 F.2d at 1453 ("A judicial decision to the effect that  an agency's interpretation frustrates the policies of Congress  (or is inconsistent with the statutory mandate) is a far cry  from a decision that the agency's approach fails best to  promote Congress' purposes.").  Given the absence of environmental benefits--indeed, the possibility of environmental  harm--EPA violated the basic requirement that its actions  must "not deviate from or ignore the ascertainable legislative  intent."  Small Refiner Lead Phase-Down Task Force v.  EPA, 705 F.2d 506, 520 (D.C. Cir. 1983) (internal quotation  marks omitted).


34
In reaching this conclusion, we emphasize that we do not  question EPA's authority under the Clean Air Act to implement an early cessation program if it determines through  reasoned decision making that the program would produce  environmental or health benefits.  For example, if hazardous  waste combustors who elect to comply with the MACT standards by modifying their processes or equipment, phase in  their new controls gradually over the three-year compliance  period, it may well be that during the third year, these  sources would be burning under much cleaner conditions.  In  that case, the hazardous waste that would have been burned  by kilns and on-site incinerators would be redirected to  facilities that are closer to compliance with the new standards, thus producing real environmental benefits.  As the  Agency concedes, however, the record contains no evidence of  such benefits.

III.

35
We turn finally to petitioners' challenge to the NIC and  Progress Report requirements.  EPA asserts that although  these requirements were implemented primarily as means of  enforcing the early cessation rule, they serve the independent  purpose of increasing public participation in the RCRA permit modification process which this rule streamlined.  Petitioners disagree, claiming not only that the reporting requirements are integrally related to the early cessation rule, but  that they go far beyond the level of disclosure and public  participation required under previous RCRA regulations.


36
Because it is impossible for us to determine from this  record that EPA would have promulgated the NIC and  Progress Report requirements absent the early cessation  rule, we must vacate these provisions as well.  See, e.g., Davis  County Solid Waste Management v. E.P.A., 108 F.3d 1454,  1459 (D.C. Cir. 1997) ("Severance and affirmance of a portion  of an administrative regulation is improper if there is substantial doubt that the agency would have adopted the severed portion on its own." (internal quotation marks omitted)).Of course, this leaves EPA free to promulgate new reporting  requirements if it has some independent basis for doing so,  consistent with the statutes' purposes.


37
The petition for review is granted and the rule is vacated.


38
So ordered.

Sentelle, Circuit Judge, dissenting:

39
While the majority  correctly describes EPA's bifurcated compliance program as  "unusual," EPA sees the compliance mechanism as an innovative approach to implementing a congressional command.However it is styled, as judges, we cannot second guess  EPA's approach as long as the agency acted pursuant to  statutory authority and did so reasonably.  Here, EPA devised a reasonable approach to implement a reasonable interpretation of a congressional mandate to achieve "compliance  as expeditiously as practicable."  Therefore, I would uphold  the early cessation program as permissible under Chevron  U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467  U.S. 837 (1984), and as a reasonable, lawful agency action.


40
I agree with the majority that section 112(i)(3)(A) vests  EPA with the statutory authority to implement a bifurcated  early cessation program.  See Maj. Op. at 7-8.  I also agree  that EPA failed to substantiate its claim of health and environmental benefit associated with the implementation of the  program.  See id. at 9.  I part company with the majority  when it reads section 112(i)(3)(A) to require EPA to conduct  an environmental impact analysis before ordering "compliance as expeditiously as practicable."  I accept the majority's  general premise that Congress intended the Clean Air Act, 42  U.S.C. § 7401 et seq. (1994), to further the goals of achieving  environmental and health benefits.  However, nowhere in  section 112(i)(3)(A) does Congress order EPA to consider  separately environmental or health benefits in carrying out  the command to implement "compliance as expeditiously as  practicable."  It thus would appear at least reasonable to  conclude that Congress itself determined that the statutorily  mandated action by EPA of requiring such compliance is in  furtherance of the general goal of the statute, without the  agency's considering anew whether its specific acts also further general goals.


41
For the reasons set forth by the majority, tempered by  Congress's decision not to impose a regulation-specific requirement concerning environmental and health benefits, I  agree that "section 112(i)(3)(A)'s requirement of 'compliance  as expeditiously as practicable' can be read to provide authority for an early cessation program."  Maj. Op. at 8.  Once  that is said, I do not see that we have any other choice than  to deny the petition for review and uphold the interpretation  of EPA.  This is precisely the teaching of Chevron.  In  Chevron itself, the Supreme Court reviewed a decision of this  court setting aside an interpretation by EPA of a Clean Air  Act provision in a fashion that did not in the view of this court  advance the overall goals of the statutorily established program that EPA was administering.  See Natural Resources  Defense Council, Inc. v. Gorsuch, 685 F.2d 718, 727 (D.C. Cir.  1982).  In the landmark Chevron decision, the Supreme Court  reversed, and established the overriding principle to which  the majority pays lip service.  In Chevron, the High Court  emphasized that the sort of policy considerations inherent in  decisions as to means of implementation "are more properly  addressed to legislators or administrators, not to judges."Chevron, 467 U.S. at 864.  Just so here.  Where the interpretation by the agency otherwise survives the two-step analysis  under Chevron, I do not see how this court can strike that  interpretation as unreasonable merely on the basis that it  does not in our view advance the overriding policy of the  statutory scheme.


42
True, Congress passed the Clean Air Act "to protect and  enhance the quality of the Nation's air resources so as to  promote the public health and welfare and the productive  capacity of its population."  42 U.S.C. § 7401(b)(1);  see Maj.  Op. at 11.  However, the Clean Air Act contains hundreds of  specific commands to EPA from Congress.  Some directives  explicitly tell EPA to consider, inter alia, environmental  impact, cost considerations, or technological feasibility.  Others direct EPA to engage in managerial functions pursuant to  the environmental, cost, technological, or other factors which prompted Congress to move EPA to action.  Here, EPA  created a rule to execute a managerial function established by  statute.  EPA did nothing to frustrate the Clean Air Act's  broader goal of promoting the health, welfare, or productivity  of the public.  We can ask no more.


43
Nor is American Petroleum Institute v. EPA, 52 F.3d 1113  (D.C. Cir. 1995), relied upon by petitioners to the contrary.Indeed, that decision supports the position of EPA, not that  of the petitioners.  In API, we considered a petition seeking  review of EPA regulations promulgated pursuant to 42 U.S.C.  § 7545(k)(1).  That section, also part of the Clean Air Act,  empowered EPA to "establish[ ] requirements for reformulated gasoline to be used in gasoline-fueled vehicles in specified  nonattainment areas."  42 U.S.C. § 7545(k)(1).  The statute  mandated that the regulations were to be directed toward  "the greatest reduction in emissions of ozone forming volatile  organic compounds ... and emissions of toxic air pollutants  ... achievable through the reformulation of conventional  gasoline...."  Id.  EPA issued regulations directed toward  achieving not only the specified statutory goals, but also  toward an increase in the use of renewable resources--no  doubt a laudable goal, but not one specified by Congress in  the empowering Act.  We granted the petition for review, and  struck down the regulations, precisely because EPA had used  its regulatory proceeding to pursue goals beyond those set  forth in the empowering statute.  Today, the majority vacates  another set of EPA regulations because EPA did not pursue  goals not specified by Congress in the empowering sections  under which EPA operated in the promulgation of the regulations.  I am not suggesting that it would have been unreasonable for EPA to have considered the overall goals as urged by  the majority, but I do not see how under Chevron analysis it  is within our jurisdiction to demand that EPA pursue the  general statutory goals.  The majority embarks on a dangerous course by using 42 U.S.C. § 7401(b)(1) as the means for a  court to act as a superlegislator and rewrite the Clean Air Act  to impose substantive requirements on EPA--a course forbidden by the Supreme Court in Chevron.


44
Finding nothing illegal in EPA's choice of means to implement "compliance as expeditiously as practicable," I dissent.

