WildEarth Guardians v. U.S. Envtl. Prot. Agency

Decision Date23 July 2014
Docket NumberNo. 13–9524.,13–9524.
Citation759 F.3d 1196
PartiesWILDEARTH GUARDIANS, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Gina McCarthy, in her official capacity as Administrator of the U.S. Environmental Protection Agency, Respondents. Arizona Public Service Company, Intervenor–Respondent.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

Ashley D. Wilmes, WildEarth Guardians, Louisville, CO, for Petitioner.

Martha C. Mann, Environmental Defense Section, (Robert G. Dreher, Acting Assistant Attorney General, and Kristen Byrnes Floom, Environmental Defense Section, with her on the brief), United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for Respondents.

Makram B. Jaber, (William L. Wehrum, Andrew J. Turner, Andrew D. Knudsen, with him on the brief), Hunton & Williams LLP, Washington, DC, for IntervenorRespondent.

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

HARTZ, Circuit Judge.

On August 24, 2012, the Environmental Protection Agency (EPA) promulgated a final Federal Implementation Plan (FIP) to reduce regional haze by regulating emissions of nitrogen oxides (NOx) and particulate matter (PM) at the five units of the Four Corners Power Plant (the Plant) on the Navajo Reservation in northwestern New Mexico.1 WildEarth Guardians (WildEarth) filed a petition under 42 U.S.C. § 7607(b)(1) for review of the FIP. It argued that promulgation of the FIP did not comply with the Endangered Species Act (ESA) because the EPA failed to consult with the Fish and Wildlife Service about the effect of the FIP even though the EPA had discretion to act to protect endangered fish near the Plant from mercury and selenium emissions. We deny the petition. WildEarth has contended that the EPA had four grounds for the exercise of discretion that could have benefitted the fish. But the principal ground was mooted by the closure of Plant Units 1–3 and two other grounds were not raised in WildEarth's opening brief. As for the fourth alleged ground, it could not create a duty to consult under the ESA because it would have required the EPA to exceed the clearly delineated boundaries of the FIP.

I. BACKGROUNDA. Regulation of Four Corners Power Plant

The Plant is a coal-fired power plant located on the Navajo Reservation near Farmington, New Mexico. It is privately owned by Arizona Public Service Company (APS) and several other utilities. APS serves as the Plant operator. At the time of the rulemaking, the Plant consisted of five units; Units 1 and 2 were each rated to a capacity of 170 mega-watts (MW), Unit 3 was rated to a capacity of 220 MW, and Units 4 and 5 were each rated to a capacity of 750 MW.

In 1977 Congress amended the Clean Air Act to authorize the EPA to regulate regional haze to remedy “any existing[ ] impairment of visibility in mandatory class I Federal areas which impairment results from manmade air pollution.” 42 U.S.C. § 7491(a)(1); see id. § 7491(a)(4),(b). Federal Class I areas are international parks, national wilderness areas, national memorial parks, and national parks that exceed a certain size. See id. § 7472. The regional-haze program has “goals and standards [that] are purely aesthetic rather than directly related to health and safety.” Oklahoma v. U.S. EPA, 723 F.3d 1201, 1226 (10th Cir.2013) (Kelly, J. concurring in part and dissenting in part); Henry N. Butler & Nathaniel J. Harris, Sue, Settle, and Shut Out the States: Destroying the Environmental Benefits of Cooperative Federalism, 37 Harv. J.L. & Pub. Pol'y 579, 603 (2014) ( “The [regional haze provisions] are designed to improve visibility in national parks and wilderness areas by decreasing pollution—a purely aesthetic goal unrelated to health.”).

The process for regulating haze resembles that for regulating air pollutants for which the EPA has set national ambient-air-quality standards (NAAQS) under 42 U.S.C. §§ 7408 and 7409.2 Once a standard has been established for a pollutant, each state is responsible for developing a state implementation plan (SIP) to meet the standard by means such as setting emission limits for power plants and other stationary sources of pollution. See id. § 7410. The SIP must be approved by the EPA; and if a state fails to submit a SIP, or if it fails to remedy a deficient SIP, the EPA is required to promulgate a FIP within two years. See id. § 7410(c).

For haze reduction the EPA does not set NAAQS, but it must (1) promulgate a list of Class I areas that are designated visibility areas based on a determination by the Secretary of the Interior that each area is one “where visibility is an important value of the area,” id. § 7491(a)(2); and (2) promulgate regulations to assure “reasonable progress” toward the national goal of visibility in Class I areas, id. § 7491(a)(4). States whose emissions may contribute to visibility impairment in designated visibility areas must issue SIPs that require operating stationary sources emitting air pollutants that can contribute to visibility impairment to “procure, install, and operate, as expeditiously as practicable (and maintain thereafter) the best available retrofit technology [ (BART) ] to reduce such emissions. Id. § 7491(b)(2)(A). The EPA must examine five factors when determining what is the BART:

[1] the costs of compliance, [2] the energy and nonair quality environmental impacts of compliance, [3] any existing pollution control technology in use at the source, [4] the remaining useful life of the source, and [5] the degree of improvement in visibility which may reasonably be anticipated to result from the use of such [BART].

Id. § 7491(g)(2). Section 7491 does not, however, govern chemicals listed as “hazardous air pollutants” under Section 112 of the Clean Air Act, 42 U.S.C. § 7412(b). Section 112, under which the EPA sets emission standards for source polluters that emit hazardous air pollutants, states, “The provisions of [the regional-haze program] shall not apply to pollutants listed under this section.” Id. § 7412(b)(6). Both mercury and selenium compounds are listed as hazardous pollutants. See id. § 7412(b)(1).

In the 1990 amendments to the Clean Air Act, Congress declared that in some situations Indian tribes should be treated as states for purposes of the Act. See id. § 7601(d). Congress left it to the EPA to specify the provisions of the Act “for which it is appropriate to treat Indian Tribes as States” and authorized the EPA to “promulgate regulations which establish the elements of tribal implementation plans [ (TIPs) ].” Id. § 7601(d)(2)(3). Congress also provided that the EPA could at times directly administer regulations under a FIP on tribal land, similar to its power to issue a FIP if a state does not submit an acceptable SIP. See id. § 7601(d)(4). The EPA promulgated the Tribal Authority Rule under these provisions in 1998. See40 C.F.R. pt. 49 (2013). The rule generally “authorize[s] eligible tribes to have the same rights and responsibilities as States.” Id. § 49.1. But recognizing that tribes would need more time than states to investigate and submit TIPs, the EPA eliminated several time requirements for TIPs, including the deadline for submitting specific visibility implementation plans. See id. § 49.4(e). It also determined that it could issue FIPs when “necessary or appropriate to protect air quality ... if a tribe does not submit a [proper TIP].” Id. § 49.11.

Because the Plant is on the Navajo Reservation, it is not regulated by any New Mexico SIP. And the Navajo Nation has never submitted a TIP that would regulate the Plant under the Clean Air Act. In 2007 the EPA issued the first FIP to cover the Plant, which set emissions limits for sulfur dioxide (SO2) and an opacity limit on various emissions. In 2009 the EPA began the rulemaking process to issue a FIP to apply regional-haze regulations to the Plant. The Plant is within 300 km of 16 Class I areas, including the Grand Canyon, Mesa Verde, and Arches National Park.3 The air quality and visibility are impaired in each of the 16 areas. SeeProposed FIP, 75 Fed.Reg. at 64224.

B. The Endangered Species Act

Under the ESA, whenever a federal agency proposes an action in which it has discretion to act for the benefit of an endangered species, it must consult to insure that the action “is not likely to jeopardize the continued existence of any endangered species or threatened species.” 16 U.S.C. § 1536(a)(2); see50 C.F.R. § 402.03 (2013) (§ 1536 applies “to all actions in which there is discretionary Federal involvement or control”). The acting agency consults with the U.S. Fish and Wildlife Service if the endangered species is a terrestrial or freshwater species or with the National Marine Fisheries Service if it is an anadromous or marine species. See id. § 402.01(b); Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1105 n. 2 (10th Cir.2010). Agency action is “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies.” 50 C.F.R. § 402.02 (2013).

The first step in the consultation process is to determine whether the proposed action “may affect a listed species or a critical habitat”; [i]f so, the agency must consult.” Rio Grande Silvery Minnow, 601 F.3d 1096 at 1105. If the agency decides its action may affect a listed species, it can decide whether to pursue formal or informal consultation. See50 C.F.R. § 402.14(b) (2013). Informal consultation ends either in a finding that formal consultation is necessary or in a finding that “the action is not likely to adversely affect listed species or critical habitat,” in which case “no further action is necessary.” Id. § 402.13(a). Formal consultation is initiated by a written request that includes [a] description of the action to be considered.” Id. § 402.14(c)(1). It generally concludes in a biological opinion, see id. § 402.14( l ), which assesses “whether the action is likely to jeopardize the continued existence of a listed...

To continue reading

Request your trial
24 cases
  • Kan. Natural Res. Coal. v. U.S. Dep't of Interior
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 24, 2020
    ...KNRC's ability to protect its interest.This asserted injury is concrete. It "is one of process, not result." WildEarth Guardians v. U.S. E.P.A., 759 F.3d 1196, 1205 (10th Cir. 2014). We have recognized that "[f]or a procedural injury, the requirements for Article III standing are somewhat r......
  • Sierra Club v. U.S. Envtl. Prot. Agency
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 2, 2020
    ...to reduce emissions from the Hunter Plant. These sworn statements thus satisfy the element of causation. See WildEarth Guardians v. EPA , 759 F.3d 1196, 1206–07 (10th Cir. 2014) (concluding that the plaintiff showed causation when the EPA's alleged error could have prevented a further reduc......
  • Wild Earth Guardians v. U.S. Forest Serv.
    • United States
    • U.S. District Court — District of Wyoming
    • August 14, 2015
    ...issue. The exercise of judicial power is limited by the Constitution to cases and controversies. WildEarth Guardians v. United States E.P.A., 759 F.3d 1196, 1204–1205 (10th Cir.2014). The standing doctrine restricts judicial power to redress or prevent actual or imminently threatened injury......
  • Kerr v. Polis
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 13, 2021
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT