American Corn Growers Association v. Environmental Protection Agency, State of Michigan, Department of Environmental Quality, Intervenors , 291 F.3d 1 ( 2002 )

Opinion for the Court filed PER CURIAM.

Opinion concurring in part and dissenting in part filed by Circuit Judge GARLAND.'

PER CURIAM:

In 1999, the Environmental Protection Agency promulgated a final rule to address regional haze. See Regional Haze Regulations, 64 Fed.Reg. 35,714 (July 1, 1999). The Haze Rule calls for states to play the lead role in designing and implementing regional haze programs to clear the air in national parks and wilderness areas that have been classified as “mandatory class I Federal areas,”¹ such as Yellowstone National Park, Grand Canyon National Park, and Shenandoah National Park. See 40 C.F.R. §§ 81.401-.437 (listing areas that have been designated as Class I areas where visibility is an important value). Numerous petitioners now challenge the Haze Rule. We vacate the rule in part and sustain it in part.

I. Introduction

“Regional haze,” as EPA defines it, is visibility impairment caused by geographically dispersed sources emitting fine particles and their precursors into the air. See 64 Fed.Reg. at 35,715. The emission and movement of sulfur dioxide, oxides of nitrogen, and fine particulate matter from sources, such as power plants, contribute to haze. See id. Fine particulate matter scatters and absorbs light. See id.

Haze has degraded visibility in most of the country’s national parks and wilderness areas. See id. The average visual range in many Class I areas in the western United States is 100 to 150 kilometers - which is just one-half to two-thirds the estimated visual range that would exist without manmade air pollution. See id. In most of the eastern United States, the average visual range is less than 30 kilometers - or about one-fifth the visual range that would exist under estimated natural conditions. See id.

Before 1977, the Clean Air Act (the “CAA” or the “Act”) “did not elaborate on the protection of visibility as an air-quality related value.” Chevron U.S.A., Inc. v. EPA 658 F.2d 271, 272 (5th Cir.1981). But in 1977, “[i]n response to a growing awareness that visibility was rapidly deteriorating in many places, such as wilderness areas and national parks,” id. at 272, Congress added § 169A to the Act. See Clean Air Act Amendments of 1977, Pub'.L. No. 95-95, § 128, 91 Stat. 685, 742 (current version at 42 U.S.C. § 7491). Section 169A established as a national goal the “prevention of any future, and the remedying of any existing, impairment in visibility in mandatory class I areas which impairment results from manmade air pollution.” See 91 Stat. at 742 (current version at 42 U.S.C. § 7491(a)(1)). Congress directed EPA to issue regulations requiring states to submit State Implementation Plans (“SIPs”) containing emission limits, schedules of compliance, and other measures necessary to make reasonable progress toward meeting the national visibility goal. See 91 Stat. at 743 (current version at 42 U.S.C. § 7491(b)(2)). In addition, Congress required states to address possible visibility impairment caused by currently-operating large stationary sources which had been in operation between 1962 and 1977. See 91 Stat. at 743 (current version at 42 U.S.C. § 7491(b)(2)(A)).

Congress also gave EPA the responsibility of promulgating regulations under § 169A to “assure ... reasonable progress toward meeting the national goal.” See 91 Stat. at 742-43 (current version at 42 U.S.C. § 7491(a)(4)). EPA issued its first regulations in 1980. See 45 Fed.Reg. 80,-084 (Dec. 2, 1980). The 1980 visibility regulations, which apply to states containing at least one Class I area, addressed visibility impairment reasonably attributable to one source, or to a small number of sources. See id. at 80,085. EPA limited the reach of the 1980 regulations to impairment attributable to specific sources and deferred any action on regional haze attributable to multiple sources located across broad geographic regions because there was insufficient data regarding the relationship between emitted pollutants, pollutant transport and visibility impairment. See id. at 80,086.

• In 1990, Congress amended the Clean Air Act again, adding § 169B in an attempt to prompt EPA to further address visibility impairment in national parks and wilderness areas. See Clean Air Act Amendments, Pub.L. No. 101-549, § 816, 104 Stat. 2695 (1990) (current version at 42 U.S.C. § 7492). Section 169B requires, among other things, that EPA undertake research to identify “sources” and “source regions” of visibility impairment in Class I areas, consider designating transport commissions to study the interstate movement of pollutants, and establish a transport commission for the Grand Canyon National Park. See 42 U.S.C. § 7492.

EPA established the Grand Canyon Visibility Transport Commission (“GCVTC”) in 1991 to assess information about the adverse impacts on visibility in and around sixteen Class I areas on the Colorado Plateau region and to provide policy recommendations' to EPA to address such impacts. See 56 Fed.Reg. 57,522 (Nov. 12, 1991). The GCVTC issued its report to EPA in 1996. Then in 1997 EPA issued a notice of proposed rulemaking with regard to regional haze, see 62 Fed.Reg. 41,138 (July 31, 1997), noting that advances in scientific and technical knowledge, including analyses provided by the GCVTC, had made it possible for EPA to target region-wide visibility impairment. After receiving more than 1,300 comments to the proposed rule, EPA published the final Haze Rule on July 1, 1999. See 64 Fed.Reg. at 35,714. The final Haze Rule reaches all states because, EPA concluded, all states contain sources whose emissions are “reasonably anticipated to contribute to regional haze in a Class I area.” Id. at 35,721. Under the Haze Rule, a state must develop and submit a SIP that provides for reasonable progress toward achieving “natural visibility conditions” in the national parks and wilderness areas in that state. See 40 C.F.R. § 51.308(d)(1). SIPs addressing regional haze in an “attainment” area must be submitted within one year of the date the area is designated as “attainment,” and revised SIPs for “non-attainment” areas must be submitted within three years after the designation. See id. § 51.308(b)(l)-(2).

The Haze Rule, for the most part, does not specify what control measures a state must implement in its initial SIP. See 64 Fed.Reg. at 35,721 (noting that the determination of what specific control measures must be implemented “can only be made by a State once it has conducted the necessary technical analyses of emissions, air quality, and the other factors that go into determining reasonable progress”). But the rule does require states to: (1) provide for an improvement in visibility in the 20 percent most impaired days; (2) ensure that there is no degradation in visibility during the 20 percent clearest days; and (3) determine the annual rate of visibility improvement that would lead to “natural visibility” conditions in 60 years. See 40 C.F.R. § 51.308(d)(1); see also id. § 51.301; 64 Fed.Reg. at 35,734. A state may not adopt a rate of improvement that would achieve natural visibility conditions in more than 60 years unless it demonstrates that the 60-year rate is unreasonable. See 40 C.F.R. § 51.308(d)(l)(n).

The Haze Rule also provides that each state must develop a long-term strategy for achieving its visibility improvement goals. This strategy must include the identification of all major stationary sources subject to Best Available Retrofit Technology (“BART”) requirements. See id. § 51.308(e). In identifying sources subject to BART, the Haze Rule calls for states to use a group rather than a source-by-source approach. See 64 Fed.Reg. at 35,740 (providing that a state should find a source subject to BART “if it can be shown that the source emits pollutants within a geographic area from which pollutants can be emitted and transported downwind to a Class I area”) (italics added). In addition, when establishing emission limits for BART sources, states must consider the improvement in visibility that would result if the technology were used at all comparable BART sources (rather than the improvement that a particular device at a particular source would accomplish). See 40 C.F.R. § 51.308(e)(l)(ii)(B).

The various petitioners and intervenors in this consolidated case raise numerous challenges to the Haze Rule. In Part II we address the claim that EPA acted contrary to law in establishing a group rather than a source-by-source approach to BART determinations. In Part III we address the claims of industry petitioners in Case Nos. 01-1111, 01-1112, and 01-1113 that EPA acted without legal authority and in an arbitrary and capricious manner in promulgating the “natural visibility” goal and the “no degradation” requirement in the regional haze regulations. Finally, in Part IV, we address the challenges raised by the Sierra Club - namely that EPA failed to set reasonable criteria for measuring or assuring reasonable progress, and that EPA acted contrary to law in extending the statutory deadline for submission of state haze control plans.

II. BART Issues

Under § 169A of the Act, each state must review all BART-eligible sources - meaning all major stationary sources built between August 1962 and August 1977 - to determine whether the sources emit “any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility” in a Class I area.² 42 U.S.C. § 7491(b)(2)(A). After deciding that a BART-eligible source emits a pollutant which may reasonably be anticipated to cause or contribute to Class I visibility impairment, the state then must determine what is the best available retrofit technology for controlling emissions from that source. See id. Under the Act, states must take the following five factors into consideration when deciding what BART controls to place on a source:

the costs of compliance, the energy and nonair quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.

Id. § 7491(g)(2).

The Haze Rule interprets and implements these statutory BART provisions in two main ways. First, the Haze Rule requires states to “find that a BART-eligi--ble source is ‘reasonably anticipated to cause or contribute’ to regional -haze if it can be shown that’ the source emits pollutants within a geographic area from which pollutants can be. emitted and transported downwind to a Class I area.” 64 Fed.Reg. at 35,740 (italics added). In other words, states must subject BART-eligible sources to BART requirements even absent empirical evidence of that source’s individual contribution to visibility impairment in a Class I area so long as the source is located within a region that may contribute to visibility impairment. See id. at 35,740; see also Br. for EPA at 26-27. EPA explained in the preamble to the Haze Rule that this sort of “collective contribution” approach was “consistent with that taken in the programs for acid rain and ozone, programs which also address regional air quality problems caused by transported pollutants.” 64 Fed.Reg. at 35,740; see also 63 Fed.Reg. at 57,376.

Second, the Haze Rule provides that once a state has decided that a particular source is subject to BART and is considering what BART controls to place on that source, the state must analyze “the degree of visibility improvement that would be achieved in each mandatory Class I Federal area as a result of the emission reductions achievable from all sources subject to BART located within the region that contributes to visibility impairment in the Class I area.” 40 C.F.R. § 51.308(e)(l)(ii)(B) (italics added). This means that of the five statutory factors to be considered by states when determining BART controls, see 42 U.S.C. § 7491(g)(2), only four factors (the costs of compliance, the environmental impacts of compliance, any existing pollution control technology in use at the source, and the remaining useful life of the source) are considered on a source-specific basis. The Haze Rule requires states to consider the fifth statutory factor (the degree in improvement) on a group or “area wide” basis.

Industry petitioners attack EPA’s decision to use a group rather than a source-by-source BART approach, arguing that the language, statutory structure, and legislative history of § 169A make it clear that the Haze Rule runs afoul of the Act. See Br. for Industry Pet’rs and Intervenor in Case Nos. 99-1348, et al. at 13. For the reasons that follow, we grant the petition for review, vacate the BART rules, and remand to EPA.

In the Haze Rule, EPA extracts one of the five statutory factors listed in § 169A(g)(2) and treats it differently than the other four. See 64 Fed.Reg. at 35,741 (providing that only “the degree in improvement in visibility that would be expected at each Class I area as a result of imposing BART” is to be considered on a group rather than a source-specific basis). In effect, EPA bifurcates the states’ determination of the appropriate BART emission limitations for specific sources. States must first estimate possible emission reductions on a source-by-source basis based on the application of the technology, the cost, time for compliance, energy and nonair environmental impacts, and the remaining useful life of the source. See id.; see also 40 C.F.R. § 51.308(e)(l)(ii)(A). “Taking these factors into account allows the State to arrive at an estimate of the ‘best system’ of retrofit control technology for a particular source.” 64 Fed.Reg. at 35,741. States must then calculate the degree in improvement in visibility that would be expected at each Class I area as a result of imposing BART on all sources subject to BART. See id.; see also 40 C.F.R. § 51.308(e)(l)(ii)(B).

EPA argues that its bifurcated approach to determining appropriate BART controls is permissible because § 169A(g)(2) is unclear about how a state must analyze anticipated visibility improvement. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). We cannot agree. The Haze Rule’s splitting of the statutory factors is consistent with neither the text nor the structure of the statute. See 42 U.S.C. § 7491(g)(2). All five § 169A(g)(2) factors inform the states’ inquiries into what BART controls are appropriate for particular sources. Although no weights were assigned, the factors were meant to be considered together by the states. The language of § 169A(g)(2) can be read in no other way. To treat one of the five statutory factors in such a dramatically different fashion distorts the judgment Congress directed the states to make for each BART-eligible source. This is most apparent with respect to the states’ duty to take into account “the costs of compliance” in deciding not only whether to order an individual source to install any new pollution control equipment, but also what type of equipment - or as the statute puts it, what type of “retrofit technology.” How is a state to determine what is too costly (and what is not) for a particular source? The statute answers that the state must consider the degree of improvement in visibility in national parks and wilderness areas that would result from the source’s installing and operating the retrofit technology. EPA has a far different answer: in assessing the cost of compliance imposed on a source, the state may not consider the degree to which new equipment at a particular source would help cure the haze in some distant national park. Under EPA’s take on the statute, it is therefore entirely possible that a source may be forced to spend millions of dollars for new technology that will have no appreciable effect on the haze in any Class I area.³ A similar problem arises when a state considers, as it must, the “existing pollution control technology in use at the source.” How is a state to decide whether the source already has installed sufficient devices without determining how much, if at all, the source is contributing to visual impairment in downwind Class I areas? As the industry petitioners correctly note, there is no point during the Haze Rule’s BART determination “in which it could be demonstrated that the degree of improvement in visibility obtained from installing a particular set of emissions controls at a source with ‘exceedingly low’ or even merely theoretical visibility impacts is not justified by the cost of BART in light of those low or theoretical impacts.” Br. for Industry Pet’rs and Intervenor in Case Nos. 99-1348, et al. at 17-18.

The Haze Rule’s treatment of § 169A(g)(2)’s degree-of-improvement calculation is, the industry petitioners argue, not the only respect in which the rule is inconsistent with the Act. As they see it, the Haze Rule also unlawfully constrains the states’ statutory authority because under the Act it is the states - not EPA - who must determine which BART-eligible sources should be subject to BART. See 42 U.S.C. § 7491(b)(2)(A) (providing that each BART-eligible source that, “as determined by the State ... emits any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility,” shall install and operate the best available retrofit technology (italics added)); see also id.- § 7491(g)(2) (listing the factors that “the State ... shall take into consideration” in determining BART controls (italics added)).

We agree with these petitioners that the Haze Rule’s BART provisions are inconsistent with the Act’s provisions giving the states broad authority over BART determinations. See id. § 7491(b)(2)(A); see also id. § 7491(g)(2). The Haze Rule ties the states’ hands and forces them to require BART controls at sources without any empirical evidence of the particular source’s contribution to visibility impairment in a Class I area. See 64 Fed.Reg. at 35,740; see also Br. for EPA at 26-27. If the Haze Rule contained some kind of a mechanism by which a state could exempt a BART-eligible source on the basis of an individualized contribution determination, then perhaps the plain meaning of the Act would not be violated. But the Haze Rule contains no such mechanism. Section 169A(c)(l) - on which EPA relies - is a procedure by which the Administrator, with the approval of federal land managers, can exempt a source from BART requirements. See 42 U.S.C. § 7491(c)(1) (“The Administrator may, by rule, after notice and opportunity for public hearing, exempt any major stationary source from [the BART requirements], upon his determination that such source does not or will not, by itself or in combination with other sources, emit any air pollutant which may reasonably be anticipated to cause or contribute to a significant impairment of visibility in any mandatory class I Federal area.”); see also id. § 7491(c)(3). It does not provide the states with a means by which they can. exempt sources based on individual contribution determinations.

Our conclusion that the Haze Rule’s BART provisions impermissibly constrain state authority is reinforced by the Conference Report on the 1977 amendments to the Act. See Demby v. Schweiker, 671 F.2d 507, 510 (D.C.Cir.1981). The Report explains:

The agreement clarifies that the State, rather than the Administrator, identifies the source that impairs visibility in the Federal class I areas identified....

In establishing emission limitations for any source which impairs visibility, the State shall determine what constitutes “best available retrofit technology” ... in establishing emission limitations on a source-by-source basis to be included in the State implementation plan so as to carry out the requirements of this section.

H.R. Conf. Rep. No. 95-564, (1977), U.S.Code Cong. & Admin.News 1977 at pp. 1502, 1536, reprinted in 3 Senate Comm, on Env’t and Pub. Wores, A legislative Histoey of the Clean Air Act Amendments of 1977, at 535 (1978) [hereinafter “1977 Legislative History”]. The “agreement” to which the Conference Report refers was an agreement to reject the House bill’s provisions giving EPA the power to determine whether a source contributes to visibility impairment and, if so, what BART controls should be applied to that source. See id. at 533-35. Pursuant to the agreement, language was inserted to make it clear that the states - not EPA - .would make these BART determinations. See id. at 533-35; see also H.R. Res. 4151, 95th Cong. (1977), reprinted in 1977 Legislative History at 1985, 2325-30. The Conference Report thus confirms that Congress intended the states to decide which sources impair visibility and what BART controls should apply to those sources. The Haze Rule attempts to deprive the states of some of this statutory authority, in contravention of the Act.

In sum, we conclude that the Haze Rule’s BART provisions are contrary to the text, structure and history of § 169A of the Act because the rule isolates § 169A(g)(2)’s benefit calculation and constrains authority Congress conferred on the states. Although petitioners also contended that no concept of a group or area-wide BART determination could ever be consistent with the Act,⁴ we need not decide that broad issue today. We hold only that the Haze Rule’s treatment of § 169A(g)(2)’s benefit calculation and its infringement on states’ authority under the Act render the BART provisions of the rule impermissible.

III. The “Natural Visibility” Goal and the “No Degradation” Requirement

The industry petitioners in Case Nos. 01-1111, 01-1112, and 01-1113 (“Reconsideration Petitioners”) cite four grounds in support of their claim that the “natural visibility” goal and the “no degradation” requirement in the Haze Rule should be vacated as “arbitrary and capricious” and otherwise not in accordance with law: (1) EPA exceeded its authority under § 169A(a)(l) and adopted regulations that conflict with the PSD program in establishing “natural visibility” as the goal of the regional haze program; (2) the regulations impermissibly constrain state discretion in requiring that the states develop their visibility programs using the “no degradation” requirement as a bench mark; (3) EPA has no authority to impose upon the states the goal of achieving “natural visibility” conditions, and thereby restrict the opportunity of some states to participate in the planning process aimed at addressing regional haze; and (4) EPA promulgated the Haze Rule without providing adequate notice and an opportunity for comment. We find no merit in these claims and, accordingly, deny industry petitioners’ challenge to the “natural visibility” goal and the “no degradation” requirement.

Before we turn to the merits of petitioners’ claims, we must first address EPA’s contentions that petitioners’ challenge to the natural visibility goal and their claims of inadequate notice are barred because they were not properly raised before the agency. We find no merit in EPA’s contentions. Petitioners argued that the Haze Rule conflicted with the PSD program in both their comments to the agency before the regulations were issued and in their petition for reconsideration. See Supplemental Comments of the Utility Air Regulatory Group at 22, reprinted in Joint Appendix (“J.A.”) 156; Petition for Reconsideration of the Regional Haze Regulations Submitted by Utility Air Regulatory Group & National Mining Ass’n at 10-11, reprinted in J.A. 97-98. Petitioners also sought notice and comment in connection with these portions of the Haze Rule in their petition for reconsideration. See Petition for Reconsideration of the Regional Haze Rule Submitted by the Center for Energy and Economic Development at 11-14, reprinted in J.A. 116-19.

On the merits, we reject petitioners’ claim that EPA had no authority under § 169A to adopt the natural visibility goal. EPA acted under express congressional authorization in promulgating the challenged regulations. See 42 U.S.C. § 7491(a)(4). In a case such as this, where

“there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” Chevron, 467 U.S. at 848-844, 104 S.Ct. at 2781-83, ... any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.

United States v. Mead Corp., 533 U.S. 218, 227, 121 S.Ct. 2164, 2171, 150 L.Ed.2d 292 (2001) (footnote omitted). The natural visibility goal is neither “manifestly contrary to the statute” nor “arbitrary or capricious in substance.” Indeed, the goal is an eminently reasonable elucidation of the statute.

The statutory goal enunciated in § 169A(a)(l) is quite clear: “the prevention of any future, and the remedying of any existing, impairment of visibility.” 42 U.S.C. § 7491(a)(1). Petitioners argue that a “natural visibility” goal cannot be gleaned from this statutory standard. This claim is specious. Agency regulations that aim to remedy any existing impairment of visibility and prevent any future impairment - as the statute commands - will of necessity aim to achieve a state of natural visibility. There is no material inconsistency between the statutory and regulatory goals, for the latter merely elucidates the former.

The petitioners also claim that Congress did not intend for the statutory goal of § 169A(a) to displace the objectives of the PSD program. Therefore, according to petitioners, the natural visibility goal and the no degradation requirement cannot be squared with the PSD program, because that program recognizes that some impairment of visibility would be acceptable in Mandatory Federal Class I areas. We reject this argument, because EPA has reasonably construed the PSD program and the disputed regional haze rules as complementary regulatory regimes.

There are two things worth noting at the outset. First, the natural visibility goal is not a mandate, it is a goal. As EPA has explained, this goal serves as the foundation for analytical tools to be used by the states to set reasonable progress goals. 64 Fed.Reg. at 35,732-33 Petitioners’ claim that the agency is without authority to mandate attainment of the national goal is therefore meritless.

Second, the statute specifically calls for regulations to assure “reasonable progress toward meeting the national goal” of remedying any current and preventing any future impairment of visibility. 42 U.S.C. § 7491(a)(4). The no degradation provision requires implementation plans to “provide for an improvement in visibility for the most impaired days over the period of the implementation plan and ensure no degradation in visibility for the least impaired days over the same period.” 40 C.F.R. § 51.308(d)(1). This regulation plainly and permissibly serves to assure the reasonable progress sought by Congress.

The PSD program was adopted pursuant to the 1977 amendments to the Act. See generally Ala. Power Co. v. Costle, 636 F.2d 323, 349-51 (D.C.Cir.1979). The program generally controls any additional deterioration of air quality by establishing maximum allowable increases of certain pollutants in specified areas. See 42 U.S.C. § 7473(b). It is therefore true, as industry petitioners point out, that the PSD program may sometimes allow for limited air quality deterioration. EPA, however, has taken pains to explain that the PSD program and the Haze Rule are not at odds:

Section 169A of the CAA requires the EPA to promulgate regulations to ensure that the States revise their implementation plans to contain those measures necessary to make reasonable progress toward the national visibility goal. In addition to the remedying of any existing visibility impairment, that goal requires the prevention of any future visibility impairment in mandatory Class I Federal areas. As part of the overall strategy to effectuate that goal, the final rule requires States to identify all anthropogenic sources of visibility impairment. The States accordingly should take into account the cumulative effect of all existing, man-made sources of air pollution in developing their regional haze implementation plan as well as potential new sources.

With respect to the comment that EPA lacks authority to impose a welfare-based standard which renders other requirements of the CAA such a[s] PSD and NSPS largely superfluous, EPA notes that when Congress amended the CAA in 1977 to provide for the protection of visibility, it was aware of both the PSD and NSPS provisions. Nevertheless, Congress required EPA to issue regulations to address visibility. In contrast, the final regional haze rule requires States to take into account the visibility impact of emissions from both existing and new sources, and stationary and nonstationary sources. This is only one of many instances under the CAA in which Congress has provided for overlapping regulation. Indeed, the PSD and NSPS programs both focus on the control of emissions from new stationary sources. EPA believes that the regional haze rule and these other provisions are complementary means of improving air quality.

Commenters raised a number of specific questions regarding the interaction of the PSD program and the regional haze rule. One commenter asked the EPA to address the relationship of allowable Class I impacts to the proposed visibility impact limits. All PSD areas are categorized as Class I, II, or III. The classification of an area determines the corresponding maximum allowable increases, or increment, of air quality deterioration. Only a relatively small increment of air quality deterioration is permissible in Class I areas. These increments are measured over annual, 24-hour, and/or 3-hour averaging times. Nowhere, however, does the CAA provide that air quality must be allowed to deteriorate to the full extent allowed by the Class I increments standing alone. To read the statute in that manner would contravene both the general goals of the CAA to “protect and enhance” air quality (see section 101(b)(1)) but the specific long-term goal of section 169A is to eventually remedy existing visibility impairment in Class I areas. Accordingly, we believe that allowing localized air quality increases in the short-term due to the emissions from major new sources subject to PSD is not inconsistent with the regional haze program. The regional haze program is focused on long-term emission decreases from the entire regional emission inventory, comprised of major and minor stationary sources, area sources and mobile sources. We expect that long-term emission strategies for regional haze will derive substantial emission decreases from the inventory as a whole, and that these overall strategies will be able to accommodate some localized increases within .the framework of a regional decrease. .We also note that the overall inventory would decrease in cases where new sources are built that replace older, more polluting sources. Accordingly, we do not see any inherent conflict between the two programs.

While the PSD program generally allows for a small increment of air quality deterioration in Class I areas, section 165 of the CAA also provides for the additional protection of air quality-related values, “including visibility,” in Class I Federal areas beyond that provided by the increments. That is, where the FLM [Federal Land Manager] demonstrates that emissions from a new or modified source will have an adverse impact on air quality-related values (AQRVs), notwithstanding the fact that the emissions from the source do not cause or contribute to concentrations in excess of the increment for a Class I area, “a permit shall not be issued.” Section 165(d). Thus, under PSD there can be no increase in emissions from the construction or modification of a major stationary source where that increase would result in adverse impacts on AQRVs in a Class I Federal area.

Responses to Significant Comments on the Notice of Proposed Rulemaking § I.F (Apr.1999), reprinted in J.A. 106263.

The Government also reminds us that the PSD program “does not require that [visibility] deterioration occur. Nor does it create an entitlement to degrade air quality in general or visibility in particular, because nothing in the CAA provides for issuance of a PSD permit as a matter of right.” Br. for EPA at 59. We agree.

Petitioners cite Alabama Power in an attempt to support their claim that- the existence of the PSD program effectively bars “natural visibility” as a viable regulatory goal. Alabama Power supports no such claim. Indeed, the court noted that “[s]ection 169A is available to protect visibility in Class I areas where visibility is an important characteristic, and the [agency] may choose to invoke'[its] rulemaking authority ... to address this problem.” 636 F.2d at 368. In acknowledging the availability of § 169A, the court implicitly embraced EPA’s view that the visibility program is a supplement to the PSD program.

Industry petitioners additionally claim that the no degradation requirement conflicts with § 169A(g)(l)’s list of factors that states must consider when determining reasonable progress. Section 169A(g)(l) states:

in determining reasonable progress there shall be taken into consideration the costs of compliance, the time necessary for compliance, and the energy and nonair quality environmental impacts of compliance, and the remaining useful life of any existing source subject to such requirements.

42 U.S.C. § 7491(g)(1). Petitioners argue that, because “reasonable progress” could at times involve degradation, the “no degradation” requirement restricts the states’ authority to apply the statutory criteria. We disagree.

As noted above, the statute commands EPA to promulgate regulations assuring “reasonable progress toward meeting the national goal.” Id. § 7491(a)(4). The national goal includes “the prevention of any future ... impairment of visibility.” Id. § 7491(a)(1). The no degradation requirement simply elucidates “reasonable progress.” The requirement does not, however, in any way alter the list of § 169A(g)(l) criteria. In fact, the cited statutory factors do not include “degradation.” Therefore, the states will be able to comply with the no degradation requirement while applying the § 169A(g)(l) criteria.

Next, although the petitioners assert that the Haze Rule somehow restricts the opportunity of some states to participate in the planning process aimed at addressing regional haze, we can find no real evidence in support of this claim. This contention certainly offers no ground upon which to vacate the disputed regulations.

Finally, petitioners claim that they did not have fair notice and an adequate opportunity to comment on the regulatory goal of natural visibility, because “EPA provided no notice in its 1997 proposal that it intended to require states to achieve natural visibility conditions.” Br. for Reconsideration Pet’rs at 25. Rather, according to petitioners, EPA merely proposed regulations patterned on the statutory goal enunciated in § 169A(a)(l), ie., “‘preventing any future, and remedying any existing, impairment of visibility.’” Br. for Reconsideration Pet’rs at 25 (quoting old 40 C.F.R. § 51.300(a)(1)). This argument is meritless. As noted above, there is no material inconsistency between the statutory goal enunciated in § 169A(a)(l) and the regulatory goal of “natural visibility.” The latter is a “logical outgrowth” of the former. Fertilizer Inst. v. EPA, 935 F.2d 1303, 1311 (D.C.Cir.1991). Therefore, EPA did not violate any notice and comment requirements in adopting the natural visibility goal as a part of the Haze Rule.

If there is any tension between the Haze Rule and the PSD program, it is EPA’s responsibility to harmonize the regulatory requirements. It has done so in a perfectly reasonable fashion. EPA’s regulatory harmonization is both consistent with the statute and reasonable. Accordingly, we deny the petitions for review of the natural visibility goal and the no degradation requirement.

IV. The “Reasonable Progress” Criteria and the Extension of the Statutory Deadline

While the Industry Petitioners attack the Regional Haze Rule as overstepping EPA’s statutory authority, Sierra Club argues that EPA has not gone far enough to meet its statutory responsibilities.

In its first cluster of attacks on the Haze Rule, Sierra Club contends that the Rule does not satisfy EPA’s responsibility under CAA § ■ 169A(a)(4) to “promulgate regulations to assure ... reasonable progress toward meeting the national [visibility] goal,” 42 U.S.C. § 7491(a)(4), its responsibility under CAA § 169B(e)(l) to establish “criteria for measuring ‘reasonable progress’ toward the national goal,” 42 U.S.C. § 7492(e)(1), and its obligation under the Administrative Procedure Act not to act in an “arbitrary or capricious” fashion, 5 U.S.C. § 706 (2)(A). Sierra Club argues that the Haze Rule’s requirements for improvement in visibility during the 20 percent most impaired days and for no degradation during the 20 percent least impaired days, 40 C.F.R. § 51.308(d)(1); see also 64 Fed.Reg. at 35,734, do not qualify as “reasonable progress” criteria and are arbitrary and capricious. Similarly, it argues that the Rule’s requirement that a state not adopt a rate of improvement that would take more than 60 years to achieve natural visibility unless the state demonstrates that the 60-year rate is unreasonable, 40 C.F.R. § 51.308(d)(l)(i)(b), (ii), does not meet the statutory mandates and lacks “requisite specificity” because a state would be “free to reject the 60 year time frame merely by claiming that such a schedule is not ‘reasonable.’” Reply Br. for Sierra Club at 5, 8.

We' might well consider the latter attack unripe even without reference to our decision in Part II that the group-BART provisions of the Haze Rule are invalid. If in the future a state does conclude that it needs more than 60 years to achieve natural visibility, and if EPA decides to accept that conclusion, it will at that time be open to Sierra Club to challenge EPA’s decision as arbitrary and capricious. In the meantime, this court will certainly “‘benefit from postponing review until the policy in question has sufficiently crystallized.”’ Grand Canyon Air Tour Coalition v. FAA, 154 F.3d 455, 472 (D.C.Cir.1998) (quoting Florida Power & Light Co. v. EPA, 145 F.3d 1414, 1421 (D.C.Cir.1998)).

But in any event, our decision to invalidate the group BART provisions renders this entire cluster of challenges unripe for disposition. Because those provisions were intimately related to EPA’s assessment of what was necessary to achieve the goal of natural visibility, we cannot be sure whether on remand EPA will retain its current criteria for evaluating reasonable progress or adopt others. If the invalidation of the group-BART provisions causes EPA to doubt the efficacy of the remaining elements of the Haze Rule, perhaps EPA will see wisdom in some of Sierra Club’s complaints and, for example, increase the percentage of days during which there must be improvement in visibility, or increase the specificity of its criteria for reasonable progress. In light of the uncertainty that our decision creates with respect to the foirn of the rule that may emerge upon remand, the only prudent course is for us to decline to address Sierra Club’s challenges at this juncture.

Sierra Club’s second major attack on the Haze Rule challenges EPA’s determination to give states 3 years to file haze SIPs for areas designated “attainment” or “unclassifiable.” We are troubled by EPA’s action, which appears to contravene express statutory language, but in light of our decision regarding group-BART we leave this to EPA to reconsider on remand as well.

The Transportation Equity Act for the 21st Century, Pub.L. No. 105-178, 112 Stat. -107, 463 (1998) (“TEA-21”), provides that, for areas designated as “nonattainment” for the new national ambient air quality standard (NAAQS) for fine particulate matter, EPA shall require states to submit haze SIPs 3 years after the area has been so designated. See TEA-21 § 6102(c)(2) (incorporating the 3-year deadline of 42 U.S.C. § 7492(e)(2)). However, TEA-21 also expressly mandates that for any area designated as “attainment” or “unclassifiable” for that standard, EPA “shall require the [SIP] to be submitted 1 year after the area has been so designated.” Id. Nonetheless, the Haze Rule permits a state to “choose to defer addressing the [Rule’s] core requirements for regional haze ... and the requirements for BART” by submitting a so-called “commitment SIP,” containing a “demonstration of ongoing participation in a regional planning process to address regional haze, and an agreement ... to continue participating,” a “description of the regional planning process,” and a “list of all BART-eligible sources within the state.” 40 C.F.R. § 51.308(c), (c)(1). If a state submits such a commitment SIP, the deadline for submitting a haze SIP is extended from 1 year to 3. Id. § 51.308(c)(2); see Br. for EPA at 87; Br. for Sierra Club at 25.

On its face, this provision of the Haze Rule appears to extend the express statutory deadline for “attainment” and “unclassifiable” areas, an action which is beyond the agency’s authority. See Sierra Club v. EPA, 129 F.3d 137, 140 (D.C.Cir.1997) (holding that EPA cannot establish a “grace period” for compliance when not authorized to do so by the CAA); Sierra Club v. EPA 719 F.2d 436, 469 (D.C.Cir.1983) (reversing an EPA implementation plan that would have effectively extended the statutory deadline for state submissions under CAA amendments). The statute requires states to submit, by the 1-year deadline, SIPs “containing] such emission limits, schedules of compliance, and other measures as may be necessary to carry out” the haze regulations. 42 U.S.C. § 7492(e)(2) (incorporated by reference into TEA-21 § 6102(c)(2)). A commitment SIP, which by definition addresses neither the Haze Rule’s “core requirements for regional haze,” nor its “requirements for BART,” 40 C.F.R. § 51.308(c), does not appear to satisfy the statutory requirement. Cf. Natural Res. Def. Council, Inc. v. EPA, 22 F.3d 1125, 1134 (D.C.Cir.1994) (holding, under CAA § 110(k)(4), that EPA cannot satisfy its responsibility to determine whether a state plan submission complies with the CAA unless the submission .“contains something more than a mere promise to take appropriate but unidentified measures in the future,” and that a submission containing nothing more than such a commitment cannot extend the statutory deadline).

Notwithstanding our doubts about the validity of this provision, we decline to vacate it in light of the uncertainty that our decision invalidating the group-BART provisions of the Haze Rule will cast upon the contents of the SIPs required of the states. With the Rule and hence the contents of the SIPs now altered and subject to revision on remand, the more prudent course for this court is simply to remand the deadline-extension issue as well. This will permit the agency to reconsider its decision to extend the deadline at the same time that it decides what form the substantive requirements of a revised Haze Rule should take.

1 . "Class I” areas include all international parks, national wilderness areas which exceed 5,000 acres in size, national memorial parks which exceed 5,000 acres in size, and national parks which exceed 6,000 acres in size and which were in existence on August 7, 1977. See 42 U.S.C. § 7472(a). The term "mandatory class I Federal areas” is defined as "Federal areas which may not be designated as other than class I.” Id. § 7491(g)(5). At the time the Haze Rule was promulgated, there were 156 Class I areas across the country. See 64 Fed.Reg. at 35,714.

2 . A "major stationary source” is a source that has the potential to emit 250 tons or more of any pollutant. See 42 U.S.C. § 7491(g)(7).

3 . EPA's rule requires states to consider the cost of compliance in terms of the likely emission reductions which would be achieved by the imposition of BART, no matter whether this reduction would enhance visibility in downwind national parks. See 64 Fed.Reg. at 35,741 (explaining that the four factors, including cost, "should be taken into account for each source subject to BART in order to compare tradeoffs between the control efficiencies and costs associated with various control alternatives”). The preamble to the rule provides very little guidance about how states axe to calculate the degree of improvement in visibility under the regime EPA contemplates. The preamble tells the states only this:

To calculate the degree of improvement in visibility that would be expected at each Class I area as a result of imposing BART on all sources subject to BART, the State should estimate the possible emissions reductions resulting from the application of BART at all subject sources located within the region that contributes to visibility impairment in the Class I area. The State should work on its own or in conjunction with othfer States, such as a regional planning body, to determine the geographic scope of the region that contributes to each Class I area. The States should consult with one another to determine the emission reductions achievable from sources subject to BART in other states.

Id.

4 . The industry petitioners argued that source-by-source BART determinations are required by the statute and that no concept of area-wide BART determinations is permissible. See Brief for Industry Pet’rs and Intervenor in Case Nos. 99-1348, et al. at 14 (arguing that § 169A makes it clear that BART determinations "must be made on a source-by-source basis”). Cf. Train v. Natural Res. Def. Council, 421 U.S. 60, 64, 95 S.Ct. 1470, 1474-75, 43 L.Ed.2d 731 (1975) (discussing the history of the Clean Air Act and how the premise of the Act was to give states and local governments responsibility over preventing air pollution "at its source”).