Davis

Opinion by Judge CANBY; Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN.

ORDER AND AMENDED OPINION

ORDER

The opinion filed in this case on July 17, 2003, and reported at 336 F.3d 965 , is *776 hereby amended as follows: The final sentence and citation in the section entitled “Standing,” 336 F.3d at 970 (Beginning “In addition ...” and ending “... (4th Cir.2002)”) is deleted.

With that amendment, Judges Canby and W. Fletcher have voted to deny the petition for panel rehearing, and Judge O’Seannlain has voted to grant the petition.

The petition for panel rehearing is denied.

OPINION

California Governor Gray Davis and the California Air Resources Board (“CARB”) (collectively “California”) petition for review of an order of the United States Environmental Protection Agency (“EPA”) denying their request for a waiver of the oxygen level requirement under the federal reformulated gasoline program. The EPA denied the waiver on the ground that California had not clearly demonstrated that a waiver would have a beneficial effect on ozone pollution, and ruled that it was unnecessary to consider the effect a waiver would have on particulate matter pollution. We conclude…

concurring in part and dissenting in part;

I agree that the United States Environmental Protection Agency’s (“EPA’s”) interpretation of 42 U.S.C. § 7545 (k)(2)(B) is afforded broad deference. As a result, I concur in Parts 1A, IB, 2, and 3 of the majority’s opinion, which hold that the EPA’s extensive review of gasoline emissions data is neither arbitrary nor capricious, and that any disagreement that California has with the EPA’s scientific analysis is simply insufficient to support its petition for review. I must dissent, however, from the majority’s further conclusion in Part 1C that the agency’s assessment of potential ozone effects, while failing to consider particulate matter (“PM”) effects, somehow contravenes congressional intent.

In subsection (k)(2)(B), Congress imposed a 2.0 percent oxygen content requirement for gasoline used in prescribed high-smog zone areas of the country. In the case before us, the State of California sought an exemption from such requirement, claiming that without a waiver, it would be hard pressed to meet certain federal air quality standards. The Administrator denied the waiver request, concluding that California had failed to demonstrate…