198 F.3d 930 (D.C. Cir. 1999), 98-1525, Lignite Energy Council v.United States Envt'l Protection Agency

Docket Nº:98-1525 Consolidated with98-1529, 98-1533, 98-1541, 98-1543
Citation:198 F.3d 930
Party Name:Lignite Energy Council, et al.,Petitioners v. U.S. Environmental Protection Agency, Respondent Natural Gas Supply Association, et al., Intervenors
Case Date:December 21, 1999
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 930

198 F.3d 930 (D.C. Cir. 1999)

Lignite Energy Council, et al.,Petitioners


U.S. Environmental Protection Agency, Respondent

Natural Gas Supply Association, et al., Intervenors

No. 98-1525 Consolidated with98-1529, 98-1533, 98-1541, 98-1543

United States Court of Appeals, District of Columbia Circuit

December 21, 1999

Argued November 16, 1999

Page 931

[Copyrighted Material Omitted]

Page 932

On Petitions for Review of an Order of the Environmental Protection Agency

F. Willam Brownell and William F. Pedersen argued the cause for petitioners. With them on the briefs were Craig S. Harrison, Jeffrey A. Knight, Harold P. Quinn, Jr., Gene E. Godley, Scott H. Segal, Brian R. Bjella, and Charles S. Miller, Jr.

Heidi Heitkamp, Attorney General, State of North Dakota, and Carmen Miller, Assistant Attorney General, were on the brief for amicus curiae the State of North Dakota.

Wendy L. Blake, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief was Lois J. Schiffer, Assistant Attorney General.

Armond M. Cohen was on the brief for amicus curiae Conservation Law Foundation, et al.

John H. Sharp, Michael R. Barr and Michael A. Conley were on the brief for intervenors.

Before: Edwards, Chief Judge, Silberman and Henderson, Circuit Judges.

Opinion for the Court filed Per Curiam.

Per Curiam:

Petitioners challenge EPA's new source performance standards for nitrogen oxides emissions from utility and industrial boilers. We conclude that EPA did not exceed its discretion under section 111 of the Clean Air Act in promulgating these standards, and therefore deny the petitions.

* * * *

Fossil-fuel fired steam generating units ("boilers") emit nitrogen oxides (NOx), air pollutants that can cause deleterious health effects and contribute to the formation of acid rain. Section 111 of the Clean Air Act requires EPA to establish performance standards for the emission of NOx from newly constructed boilers; these "new source performance standards" are to be set at a level that

reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any non air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.

42 U.S.C. § 7411(a)(1). In its 1990 Clean Air Act Amendments Congress specifically directed EPA to exercise its section 111 authority and establish new NOx standards that incorporate "improvements in methods for the reduction of emissions of oxides of nitrogen." 42 U.S.C. § 7651f(c)(1).

In response to these statutory mandates, EPA promulgated a rule lowering its NOx new source performance standards to .15 lb/MMBtu (pounds of NOx emitted per million BTU burned) for utility boilers1 and .20 lb/MMBtu for industrial boilers. See 63 Fed. Reg. 49,442, 49,443 (1998) (to be codified at 40 C.F.R. pt. 60). These standards reflect the level of NOx emissions achievable by what EPA considers to be the "best demonstrated system" of emissions reduction: the use of selective catalytic reduction (SCR) in combination with combustion control...

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