Ala. Envtl. Council v. Adm'r, U.S. Envtl. Prot. Agency

• Decision Date: 06 March 2013
• Docket Number: Nos. 08–16961,11–11549.,s. 08–16961
• Citation: 711 F.3d 1277
• Parties: ALABAMA ENVIRONMENTAL COUNCIL, Sierra Club, Natural Resources Defense Council, Our Children's Earth Foundation, Petitioners, v. ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, United States Environmental Protection Agency, Respondents, Alabama Power Company, Tennessee Valley Authority, Alabama Department of Environmental Management, Intervenors. Alabama Power Company, Petitioner, v. United States Environmental Protection Agency, Administrator, United States Environmental Protection Agency, Respondents, Alabama Environmental Council, Our Children's Earth Foundation, Sierra Club, Intervenors.
• Court: U.S. Court of Appeals — Eleventh Circuit

711 F.3d 1277

ALABAMA ENVIRONMENTAL COUNCIL, Sierra Club, Natural Resources Defense Council, Our Children's Earth Foundation, Petitioners,

v.ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, United States Environmental Protection Agency, Respondents,Alabama Power Company, Tennessee Valley Authority, Alabama Department of Environmental Management, Intervenors.

Alabama Power Company, Petitioner,

v.United States Environmental Protection Agency, Administrator, United States Environmental Protection Agency, Respondents,Alabama Environmental Council, Our Children's Earth Foundation, Sierra Club, Intervenors.

Nos. 08–16961, 11–11549.

United States Court of Appeals,Eleventh Circuit.

March 6, 2013.

George E. Hays, Law Office of George E. Hays, Michael A. Costa, Our Children's Earth Foundation, San Francisco, CA, Justine Thompson, GreenLaw, Atlanta, GA, William J. Moore, III, William J. Moore, III, PA, Jacksonville, FL, Anthony Todd Carter, Alabama Dept. of Env. Mgmt., Montgomery, AL, for Appellants in No. 08–16961 and Intervenor in No. 11–11549.

Andrew J. Doyle, U.S. Dept. of Justice, David P.W. Orlin, Geoffrey L. Wilcox, U.S. E.P.A., Washington, DC, Vera S. Kornylak, Keri N. Powell, U.S. E.P.A., Reg. 4, Atlanta, GA, for Respondents in Nos. 08–16961 and 11–11549.

Lauren Elizabeth Freeman, F. William Brownell, Hunton & Williams, LLP, Washington, DC, for Amici Curiae Utility Air Regulatory Group.

Philip Stephen Gidiere, III, Thomas Lee Casey, III, Michael D. Freeman, Steven G. McKinney, Balch & Bingham, LLP, Birmingham, AL, Mary–Frank Brown, Alabama Dept. of Environmental Mgmt., Montgomery, AL, Frank H. Lancaster, Harriet A. Cooper, Knoxville, TN, for Intervenors in No. 08–16961, and Petitioners in No. 11–11549.

Petitions for Review of Final Action of the United States Environmental Protection Agency.

Before TJOFLAT and BLACK, Circuit Judges, and MOLLOY,^* District Judge.

BLACK, Circuit Judge:

These consolidated appeals focus on a Clean Air Act¹ visible emissions regulation promulgated by the State of Alabama and submitted to the United States Environmental Protection Agency (EPA) as a revision to Alabama's State Implementation Plan (SIP). In 2008, the EPA approved the revision after concluding the proposed regulation satisfied the Clean Air Act's requirements (2008 approval). The EPA denied a timely request in 2009 that it reconsider its approval, but, when confronted with a second reconsideration request the following month, the EPA's new Acting Regional Administrator granted the request. In April of 2009, the EPA moved this Court to grant a limited voluntary remand. We granted the motion, remanding the case “on a limited basis for purposes of reconsidering the final rule under review.” In 2011, following such reconsideration, the EPA disapproved the revision (2011 disapproval).

Petitions for review of both the 2008 approval and the 2011 disapproval are before us. Alabama Power supports the 2008 approval and asks us to affirm the approval as the only lawful action the EPA has taken on the proposed regulation. The Alabama Environmental Council, Sierra Club, Natural Resources Defense Council, and Our Children's Earth Foundation (Citizens) support the 2011 disapproval and ask us to affirm that action. The EPA is defending the 2011 disapproval and contends we should not review the 2008 approval.

After a discussion of the statutory background and the factual and procedural history of the two petitions, we first consider whether the EPA's 2011 disapproval was conducted in compliance with the statutory procedures set forth in the Clean Air Act. We conclude the 2011 disapproval was unauthorized by the Clean Air Act because the EPA failed to make the statutorily required error determination. We next reject the EPA's reliance on its inherent authority and this Court's remand order as authorization for the 2011 disapproval. Finally, we address and dismiss challenges to the 2008 approval, and affirm the validity of that action.

I. Statutory Background

The Clean Air Act aims to “protect and enhance the quality of the Nation's air resources,” 42 U.S.C. § 7401(b)(1), and “sets out a two-stage process for achieving this goal,” Sierra Club v. Ga. Power Co., 443 F.3d 1346, 1348 (11th Cir.2006). At the first stage, the EPA identifies air pollutants that endanger the public, then formulates national ambient air quality standards (NAAQS) to regulate these pollutants. 42 U.S.C. § 7409; Ga. Power, 443 F.3d at 1348. At the second stage, each state develops a SIP to ensure its air meets the NAAQS for the various pollutants. 42 U.S.C. § 7410; Ga. Power, 443 F.3d at 1348. The SIP must be submitted for review by the EPA, 42 U.S.C. § 7410(a)(1), and becomes federally enforceable once it is approved and adopted by the EPA, 42 U.S.C. § 7410(k).

The Clean Air Act thus provides a cooperative-federalism approach to air quality regulation. See Fla. Power & Light Co. v. Costle, 650 F.2d 579, 581 (5th Cir.1981) (“Congress chose a balanced scheme of state-federal interaction to implement the goals of the [Clean Air] Act.”).² Under this approach, states have “primary responsibility for ensuring that the ambient air meets the NAAQS for the identified pollutants,” Ky. Res. Council, Inc. v. EPA, 467 F.3d 986, 988 (6th Cir.2006), and “so long as the ultimate effect of a State's choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation,” Train v. NRDC, Inc., 421 U.S. 60, 79, 95 S.Ct. 1470, 1482, 43 L.Ed.2d 731 (1975). “The great flexibility accorded the states under the Clean Air Act is ... illustrated by the sharply contrasting, narrow role to be played by the EPA.” Fla. Power & Light Co., 650 F.2d at 587. If the SIP revision meets the requirements in the Clean Air Act, the EPA must approve it. See 42 U.S.C. § 7410(k)(3) (“[T]he Administrator shall approve [a SIP or SIP revision] as a whole if it meets all of the applicable requirements of this chapter.” (emphasis added)).

To obtain approval by the EPA, the SIP must comply with the Clean Air Act requirements set forth at 42 U.S.C. § 7410(a)(2), which mandates, inter alia, the inclusion of “enforceable emission limitations and other control measures, means, or techniques ... as may be necessary or appropriate to meet the applicable [Clean Air Act] requirements.” 42 U.S.C. § 7410(a)(2)(A); see also Ga. Power, 443 F.3d at 1348. Once approved, a SIP may not be unilaterally modified by either the state or the EPA: “no ... plan revision, or other action modifying any requirement of an applicable implementation plan may be taken with respect to any stationary source by the State or by the Administrator [of the EPA].” 42 U.S.C. § 7410(i). The Clean Air Act does, however, provide cooperative processes for modifying a SIP that may be initiated by either the EPA or the state.

A “SIP Call” is one mechanism by which the EPA may initiate a modification to a SIP. Clean Air Act § 110(k)(5); 42 U.S.C. § 7410(k)(5). Section 110(k)(5), entitled “[c]alls for plan revisions,” outlines the “SIP Call” procedure:

Whenever the Administrator finds that the applicable implementation plan for any area is substantially inadequate to attain or maintain the relevant national ambient air quality standard ... the Administrator shall require the State to revise the plan as necessary to correct such inadequacies. The Administrator shall notify the State of the inadequacies, and may establish reasonable deadlines (not to exceed 18 months after the date of such notice) for the submission of such plan revisions. Such findings and notice shall be public.

42 U.S.C. § 7410(k)(5). Thus, “whenever” the EPA makes a “substantial inadequacy” determination, the SIP Call procedure requires the EPA to (1) notify the state of the substantial inadequacy, and (2) give the state the first opportunity to revise the SIP to conform with the Clean Air Act. Id.

Prior to 1990, a SIP Call was the only mechanism by which the EPA could initiate a modification to a SIP. In 1990, however, Congress added a separate provision permitting the EPA to initiate a “correction” to a SIP or SIP revision which had been approved or disapproved “in error.” Clean Air Act § 110(k)(6); 42 U.S.C. § 7410(k)(6). Section 110(k)(6), entitled “[c]orrections,” provides:

Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof) ... was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.

42 U.S.C. § 7410(k)(6). In contrast to the SIP Call procedure, Section 110(k)(6) permits the EPA, after determining a prior action approving or disapproving a plan revision “was in error,” to revise the action without “requiring any further submission from the State.” Id. Section 110(k)(6) provides a procedure for the EPA to follow in revising the prior action: the action may be revised “in the same manner as the approval, disapproval, or promulgation,” and the “determination and basis thereof shall be provided to the State and public.” Id.

A state may also voluntarily initiate a revision to its SIP. 42 U.S.C. § 7410(a)(1). “If a state wants to add, delete, or otherwise modify any SIP provision, it must submit the proposed change to EPA for approval.” Sierra Club v. Tenn. Valley Auth., 430 F.3d 1337, 1346 (11th Cir.2005) (citing 40 C.F.R. § 52.1384). Before adopting and submitting the revision to the EPA, the state must hold public hearings and accept public comments. 42 U.S.C. § 7410(a); Tenn. Valley Auth., 430 F.3d at 1348 (citing 40 C.F.R. § 51.102). The EPA “shall not” approve a SIP revision “if the revision would interfere...