State v. U.S. Envtl. Prot. Agency

• Decision Date: 23 September 2013
• Docket Number: 12–1961,12–2331.,Nos. 12–1844,s. 12–1844
• Citation: 730 F.3d 750
• Parties: State of NORTH DAKOTA, Petitioner v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Lisa P. Jackson, Administrator, Respondent. Basin Electric Power Cooperative, Intervenor. Great River Energy, Petitioner v. United States Environmental Protection Agency, and Lisa P. Jackson, Administrator, Respondent. Basin Electric Power Cooperative, Intervenor. National Parks Conservation Association; Sierra Club, Petitioners v. United States Environmental Protection Agency; Lisa P. Jackson, Administrator, United States Environmental Protection Agency, Respondents. Basin Electric Power Cooperative; Great River Energy; Minnkota Power Cooperative; Square Butte Electric Cooperative; State of North Dakota, Intervenors. Montana–Dakota Utilities Co., A Division of MDU Resources Group, Inc.; Northern Municipal Power Agency; Northwestern Corporation, doing business as NorthWestern Energy; Otter Tail Power Company, Amici on Behalf of Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

730 F.3d 750

State of NORTH DAKOTA, Petitioner

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Lisa P. Jackson, Administrator, Respondent.

Basin Electric Power Cooperative, Intervenor.

Great River Energy, Petitioner

v.United States Environmental Protection Agency, and Lisa P. Jackson, Administrator, Respondent.

Basin Electric Power Cooperative, Intervenor.

National Parks Conservation Association; Sierra Club, Petitioners

v.United States Environmental Protection Agency; Lisa P. Jackson, Administrator, United States Environmental Protection Agency, Respondents.

Basin Electric Power Cooperative; Great River Energy; Minnkota Power Cooperative; Square Butte Electric Cooperative; State of North Dakota, Intervenors.

Montana–Dakota Utilities Co., A Division of MDU Resources Group, Inc.; Northern Municipal Power Agency; Northwestern Corporation, doing business as NorthWestern Energy; Otter Tail Power Company, Amici on Behalf of Respondent.

Nos. 12–1844, 12–1961, 12–2331.

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2013.

Filed: Sept. 23, 2013.

Paul M. Seby, Special AAG, argued, Denver, CO, Margaret I. Olson, AAG, Bismarck, ND, on the brief, for Petitioner State of North Dakota in 12–1844.

Samara L. Kline, argued, Dallas, TX, William M. Bumpers and Michael B. Heister, Washington, DC, on the brief, for Petitioner Great River Energy in 12–1961.

Abigail M. Dillen, argued, New York, N.Y., Matthew Gerhart and Jocelyn D'Ambrosio, on the brief, for Petitioners National Parks Conservation Association and Sierra Club in 12–2331.

Alan D. Greenberg, argued, Denver, CO, Ignacia S. Moreno, AAG, on the brief, for respondent.

Harry M. Johnson, III, Penny A. Shamblin, Richmond, VA, on the brief, for Amici Curiae on behalf of the EPA in 12–2331, Otter Tail Power Company, Northern Municipal Power Agency, Montana–Dakota Utilities Co., a division of MDU Resources Group, Inc., and Northwestern Corporation, d.b.a. Northwestern Energy.

Paul M. Seby, Special AAG, argued, Denver, CO Margaret I. Olson, AAG, Bismarck, ND, on the brief, for Intervenor State of North Dakota in 12–2331.

Patrick D. Traylor, Dennis L. Arfmann, Washington, DC, on the brief, for Intervenor Minnkota Power Cooperative and Square Butte Electric Cooperative in 12–2331.

Patrick R. Day, Cheyenne, WY, Denise W. Kennedy, Christopher L. Colclasure, Denver, CO, on the brief, for Intervenor Basin Electric Power Cooperative in 12–2331.

Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.

WOLLMAN, Circuit Judge.

In these consolidated petitions for review, the State of North Dakota (State), Great River Energy, and National Parks Conservation Association and Sierra Club (collectively Environmental Groups) challenge the final rule promulgated by Environmental Protection Agency (EPA) on April 6, 2012, see77 Fed.Reg. 20,894–945 (the Final Rule). The Final Rule approved in part and disapproved in part two state implementation plans (SIPs) submitted by the State to address its obligations under §§ 110 and 169A of the Clean Air Act (CAA), 42 U.S.C. §§ 7401–7671 q, and promulgated a federal implementation plan (FIP) to address those portions of the SIPs that were disapproved. We grant in part and deny in part the State's and Great River Energy's petitions for review, and deny the Environmental Groups' petition for review and voluntary motion to dismiss under Federal Rule of Appellate Procedure 42(b).

I. Background

A. Statutory Background

“[I]n 1977, ‘[i]n response to a growing awareness that visibility was rapidly deteriorating in many places, such as wilderness areas and national parks,’ Congress added § 169A to the [Clean Air Act.]” Am. Corn Growers Ass'n v. EPA, 291 F.3d 1, 3 (D.C.Cir.2002) (per curiam) (second alteration in original) (internal citation omitted) (quoting Chevron U.S.A., Inc. v. EPA, 658 F.2d 271, 272 (5th Cir.1981)). “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.’ ” Id. (quoting Clean Air Act Amendments of 1977, Pub.L. No. 95–95, § 128, 91 Stat. 685, 742 (current version at 42 U.S.C. § 7491(a)(1))). In connection with § 169A, “Congress directed EPA to issue regulations requiring states to submit [SIPs] containing emission limits, schedules of compliance, and other measures necessary to make reasonable progress toward meeting the national visibility goal.” Id.

Under the regional haze regulations promulgated by EPA, a state “must establish goals (expressed in deciviews) that provide for reasonable progress towards achieving natural visibility conditions” in “each mandatory Class I Federal area located within the State[.]” ¹40 C.F.R. § 51.308(d)(1). In reaching these reasonable progress goals, the state must consider “the cost of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any potentially affected sources, and include a demonstration showing how these factors were taken into consideration in selecting a goal.” Id. § 51.308(d)(1)(i)(A). The state must also analyze and determine the rate of progress necessary to achieve natural visibility conditions in the mandatory Class I Federal areas by the year 2064 and “consider the uniform rate of improvement in visibility and the emission reduction measures needed to achieve it for the period covered by the implementation plan.” Id. § 51.308(d)(1)(i)(B). If the state's reasonable progress goals provide for a slower rate of improvement than necessary to achieve natural visibility conditions by 2064, the state must demonstrate “that the rate of progress for the implementation plan to attain natural conditions by 2064 is not reasonable; and that the progress goal adopted by the State is reasonable.” Id. § 51.308(d)(1)(ii).

In addition to the reasonable progress goals, § 169A and the regional haze regulations require states to determine the best available retrofit technology (BART) for certain major stationary sources built between 1962 and 1977 that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. See42 U.S.C. § 7491(b)(2)(A); 40 C.F.R. §§ 51.301, 51.308(e). To address the requirements for BART, a state must submit a SIP that contains a list of all BART-eligible sources and an analysis that takes into consideration the technology available, the costs of compliance, the energy and non-air quality environmental impacts of compliance, any pollution control equipment 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. § 51.308(e)(1)(i)-(ii). For BART-eligible sources that have a total generating capacity greater than 750 megawatts, the state must also use Appendix Y to the BART Guidelines in making its determination. Id. § 51.308(e)(1)(B). Appendix Y creates a five-step process for determining BART on a case-by-case basis: (1) identify all available retrofit control technologies; (2) eliminate technically infeasible options; (3) evaluate control effectiveness of remaining control technologies; (4) evaluate impacts and document the results; and (5) evaluate visibility impacts. See70 Fed.Reg. 39,164.

The CAA also “charges EPA with setting National Ambient Air Quality Standards, or NAAQS, which prescribe the maximum permissible levels of common pollutants in the ambient air.” EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 12 (D.C.Cir.2012). “The States implement the NAAQS within their borders through ... SIPs.” Id. at 13. The CAA requires states to submit revised SIPs to address new or revised NAAQS within three years after promulgation of the NAAQS. 42 U.S.C. § 7410(a)(1). Section110(a)(2) identifies the required elements of a state's interstate transport SIP submission, which include what is known as the “good neighbor” provision. Id. § 7410(a)(2)(D). The good neighbor provision requires that a SIP contain four distinct components, one of which is a visibility component. Id. § 7410(a)(2)(D)(i)(II). The visibility component mandates that the SIP contain an adequate provision prohibiting any source of emissions within the state from emitting air pollutant in amounts that will interfere with measures required to be included in the applicable SIP for any other state to protect visibility. Id.

“Under the Clean Air Act, both the Federal Government and the States exercise responsibility for maintaining and improving air quality.” Am. Trucking Ass'ns v. EPA, 600 F.3d 624, 625 (D.C.Cir.2010). “The Act sets forth a basic division of labor: The Federal Government establishes air quality standards, but States have primary responsibility for attaining those standards within their borders.” EME Homer, 696 F.3d at 29. “The Act thus leaves it to the individual States to determine, in the first instance, the particular restrictions that will be imposed on particular emitters within their borders.” Id. at 12. But, if a state fails to submit a SIP, submits an incomplete SIP, or submits a SIP that does not meet the statutory requirements, EPA is obligated to implement its own FIP to correct the deficiency in the SIP, unless the State can correct the deficiency itself and EPA can approve that correction within two years. 42 U.S.C. § 7410(c). This is commonly referred to as cooperative federalism, and both § 169A and § 110 operate under this framework.

B. Procedural Background

The State submitted its interstate transport SIP for EPA approval on April 6, 2009, and submitted its regional haze SIP on March 3, 2010. The State submitted a SIP Supplement No. 1 on July 27, 2010, and also a SIP Amendment No. 1 on July 28, 2011. EPA issued a proposed rule on September 21, 2011, see76 Fed.Reg. 58,570–648 (Proposed Rule), proposing to disapprove the State's regional haze SIP regarding its...