Alabama Power Co. v. Costle

Decision Date21 April 1980
Docket NumberNo. 78-1006,78-1006
CitationAlabama Power Co. v. Costle, 636 F.2d 323, 204 U.S.App.D.C. 51 (D.C. Cir. 1980)
Parties, 204 U.S.App.D.C. 51, 10 Envtl. L. Rep. 20,001 ALABAMA POWER COMPANY, et al., Petitioners, * v. Douglas M. COSTLE, as Administrator, Environmental Protection Agency, et al., Respondents,* Sierra Club, et al., Intervenors.*
CourtU.S. Court of Appeals — District of Columbia Circuit

Page 342

Petitions for Review of Orders of the Environmental Protection agency.

Henry V. Nickel, Washington, D. C., with whom George C. Freeman, Jr., Richmond, Va., Michael B. Barr, Andrea S. Bear, Washington, D. C., were on brief, for Alabama Power Company, et al., in Nos. 78-1006, 78-1591, 78-1592, 78-1801, 78-1802and78-1832.

Michael K. Glenn, Washington, D. C., for American Paper Institute, et al., in Nos. 78-1815and78-1832.

James R. Bieke, Washington, D. C., with whom Francis M. Shea, Richard T. Conway, William R. Galeota and Joseph C. Zengerle, Washington, D. C., were on brief, for Montana Power Company, et al., in Nos. 78-1610, 78-1807and78-1832.

Richard G. Wise, Asst. Corp.Counsel, Washington, D. C., with whom Louis P. Robbins, Acting Corp.Counsel, John C. Salyer, III, Asst. Corp.Counsel, Washington, D. C., were on brief, for District of Columbia in No. 78-1752.

Jim Mathews, Asst. Atty. Gen., State of Texas, Austin, Tex., with whom John L. Hill **, Atty. Gen., David M. Kendall, Jr. **, First Asst. Atty. Gen., State of Texas, Austin, Tex., were on brief, for State of Texas in No. 78-1825.

John J. Adams, Washington, D. C., and David F. Peters, Richmond, Va., were on brief, for American Petroleum Institute, et al., in Nos. 78-1008, 78-1595, 78-1596, 78-1801and78-1832.

J. Michael Hines, John D. Field, III and John R. Feore, Jr., Washington, D. C., were on brief, for Hampton Roads Energy Company in Nos. 78-1590and78-1832.

Alan B. Mollohan and J. Roy Spradley, Jr., Washington, D. C., were on brief, for Mining and Reclamation Council of America, Inc. in Nos. 78-1805and78-1832.

Jonathan B. Hill and Donald W. Markham, Washington, D. C., were on brief, for The Pittston Company in Nos. 78-1810and78-1832.

Roger M. Golden, Washington, D. C., was on brief, for American Iron and Steel Institute in Nos. 78-1811and78-1832.

George J. Miller, Denver, Colo. and William A. White, Washington, D. C., were on brief, for Westmoreland Coal Company, et al., in Nos. 78-1823, 78-1824and78-1832.

James L. Lyons, Washington, D. C., was on brief, for Mitchell Energy Co., et al., in Nos. 78-1827, 78-1828, 78-1829, 78-1830and78-1832.

Carl W. Ulrich, William R. Duff and Henry E. Brown, Washington, D. C., were on brief, for Colorado Interstate Gas Company, et al., in Nos. 78-1832and78-1834.

William S. Hemsley, Jr., Washington, D. C., was on brief, for GATX Terminals Corporation, et al. in Nos. 78-1832and78-1836.

Albert J. Beveridge, III and Charles A. Patrizia, Washington, D. C., were on brief, for Reynolds Metals Company, Inc. in No. 78-1833.

Thomas C. Matthews, Jr., Charles C. Abeles and Donald T. Bucklin, Washington, D. C., were on brief, for Occidental Oil Shale, Inc., et al., in Nos. 78-1832and78-1837.

Frank H. Morison, Donald Quander and James L. White, Denver, Colo., were on brief, for ASARCO Inc. in Nos. 78-1821and78-1832.

Robert C. Rauch, for Environmental Defense Fund in Nos. 78-1006, 78-1008, 78-1525, Part II and 78-1610, Part II.

Peter J. Herzberg, Washington, D. C., with whom H. Anthony Ruckel, Denver, Colo., James H. Cohen and Kristine L. Hall, Washington, D. C., were on brief, for Sierra Club Legal Defense Fund, Inc. in No. 78-1006, 78-1008, 78-1591, 78-1592, 78-1595, 78-1596, 78-1752, 78-1839, Part II, 78-1801, 78-1802, 78-1805, 78-1806, 78-1807, 78-

Page 343

1810, Part II, 78-1811, 78-1815, Part II, 78-1816, 78-1817, 78-1818, 78-1819, Part II, 78-1821, 78-1822, 78-1823, 78-1824, 78-1825, 78-1827, 78-1828, 78-1829, 78-1830, 78-1832, 78-1833, 78-1834, 78-1836, 78-1837 and 78-1838, Part II.

Erica L. Dolgin, Angus Macbeth and Elizabeth Stein, Attys., Dept. of Justice, Washington, D. C., with whom Sanford Sagalkin, Acting Asst. Atty. Gen., Washington, D. C., was on brief, for respondentDouglas M. Costle, et al.

Peter H. Wyckoff, Atty., Environmental Protection Agency, Washington, D. C., a member of the bar of the Supreme Court of New York pro hac vice by special leave of Court, Jeffrey C. Smith and Lydia N. Wegman, Attys., Environmental Protection Agency, Washington, D. C., with whom Joan Z. Bernstein, General Counsel, Environmental Protection Agency, Washington, D. C., was on brief, for respondentEnvironmental Protection Agency, et al.

Lawrence V. Robertson, Jr. and John H. Cheatham, III, Washington, D. C., were on brief, for intervenor, Interstate Natural Gas Association of America in No. 78-1834.

James W. Moorman and Earl Salo, Attys., Dept. of Justice, Washington, D. C., entered appearances for respondent, Douglas M. Costle, et al. in Nos. 78-1006and78-1008.

Tom Watson, Washington, D. C., entered an appearance for intervenorSierra Pacific Power Company in No. 78-1832.

Bruce J. Terris and Philip G. Sunderland, Washington, D. C., entered appearances for intervenor, Environmental Defense Fund, et al. in No. 78-1610, Part II.

Theodore L. Garrett, Washington, D.C., for Ashland-Warren, Inc., in No. 78-1817, and Manufacturing Chemists Assn., et al., in No. 79-1818;Patricia A. Barald, Washington, D.C., on brief, for Manufacturing Chemists Assn., in No. 78-1818.

Before LEVENTHAL, ***ROBINSON and WILKEY, Circuit Judges.

Opinions for the Court filed by Circuit Judges LEVENTHAL, ROBINSON and WILKEY.

PER CURIAM:

Because of the great number of complex issues, the court's opinion appears in three parts, each written for the court by a member of the panel.Today's opinions supersede the per curiam opinion in this case, issued June 18, 1979.We have entertained narrowly focused petitions for reconsideration, all of which are disposed of by our holdings here.

A table of contents for the three opinions appears at the start of Judge Leventhal's opinion.

LEVENTHAL, Circuit Judge:

This is one of three opinions issued today considering challenges to the validity of final regulations 1 promulgated by the Environmental Protection Agency(EPA) on June 19, 1978 generally embracing the prevention of significant deterioration of air quality in the nation's "clean air areas."2 These "PSD" regulations interpreted and began the implementation of various provisions of the Clean Air ActAmendments of 1977. 3 Pertinent provisions are gathered in title I,part C of the Clean Air Act as

Page 344

amended (hereafter sometimes referred to as the "PSD part" or the "PSD provisions").

Before us are consolidated petitions for review filed in this court, as provided by statute, within 60 days of the date of promulgation.4 A special procedure was employed by the Chief Staff Counsel of the Circuit to coordinate the efforts of counsel and facilitate the presentation of this extraordinarily complex case.5 Significant preliminary issues raised by these petitions were argued on October 10, 1978, and our ruling on those questions issued March 27, 1979.6 The remaining issues raised by the petitions, involving primarily interpretative questions of comprehensive importance, 7 came to be argued on April 19 and 20, 1979.

The judicial review provisions as well as other features of the Clean Air ActAmendments set a tone for expedition of the administrative process that effectuates the congressional purpose to protect and enhance an invaluable national resource, our clean air.Motivated by such concerns, after careful and complete consideration of the case, we issued on June 18, 1979, a per curiam opinion 8 summarizing our rulings on the questions presented.The expedited judgment and per curiam opinion served two additional purposes: (1) it enabled the EPA to commence rulemaking or other proceedings necessary to promulgate those revisions in the PSD regulations required by our rulings, and to take other prudent action to effectuate congressional policies; 9 and (2) it allowed the court to entertain, prior to the issuance of this opinion, narrowly focused petitions for reconsideration directed to the panel by the parties.10

The three opinions issued today are in part an incorporation, with some enlargement of analysis, of the rulings in our per curiam opinion of June 18, 1979, together with modifications that the court has deemed appropriate in light of the petitions for reconsideration that have been filed.In view of the large number of questions raised, the members of the panel divided responsibility for preparation of discrete parts.

                TABLE OF CONTENTS
                Opinion for the Court by Judge Leventhal      Page
                      I.   BACKGROUND OF PSD PROGRAM AND
                           REGULATIONS UNDER REVIEW ......... 346
                     II.   POTENTIAL TO EMIT ................ 352
                    III.   EXEMPTION OF 50 TPA CONTROLLED
                           SOURCES .......................... 355
                     IV.   PROTECTION OF THE INCREMENTS ..... 361
                      V.   APPLICATION OF PSD PERMITS TO
                           SOURCES IN NONATTAINMENT
                           AREAS ............................ 364
                     VI.   FUGITIVE DUST SOURCES
                           RULEMAKING, AND EXEMPTION
                           AUTHORITY ........................ 368
                    VII.   MONITORING ....................... 371
                Opinion for the Court by Judge Robinson
                      I.   BASELINE DATE .................... 374
                     II.   BASELINE AND VOLUNTARY FUEL
                           SWITCHES ......................... 376
                    III.   MODELING ......................... 381
                     IV.   STACK HEIGHT ..................... 388
                Opinion for the Court by Judge Wilkey
                      I.   SOURCE DEFINITION ................ 394
                     II.   MAJOR MODIFICATION/BUBBLE ........ 399
                    III.   POLLUTANTS SUBJECT TO PSD
                           REGULATION AND THE "MAJOR
                           EMITTING FACILITY" THRESHOLD ..... 403
                     IV.   DEFINITION OF BACT TO INCLUDE A
                           VISIBLE EMMISSION
...

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex
181 cases
  • Brodsky v. United States Nuclear Regulatory
    • United States
    • U.S. District Court — Southern District of New York
    • March 04, 2011
    ...commands of a regulatory statute." 636 F.2d at 358. Here, the NRC has not created any blanket or categorical exemption from any explicit rule set forth in the AEA. In fact, this case concerns a case-specific exemption from Commission-promulgated regulations. The Alabama Power court took care to distinguishits facts from the type of case before this Court. The Court held: [W]e are not concerned here with the "equitable" discretion of agencies to afford case-by-case treatmentwhich no variance is permitted. Id. at 357-58. Clearly, the Alabama Power holding was not intended to hamstring an agency's ability to make case-specific decisions where necessary for special circumstances. Moreover, the Alabama Power court reviewed an exemption contrary to the express language in a congressional statute. The court described the agency's action as seeking "vindication of an approach contrary to the explicit statutory design on the basis of its estimatethe express language in a congressional statute. The court described the agency's action as seeking "vindication of an approach contrary to the explicit statutory design on the basis of its estimate of its lack of capacity to handle the task delegated to it." Id. at 359-60. This is not the issue before this Court. Here, the Commission promulgated the rules in Appendix R, pursuant to a mandate from Congress to establish fire-safety rules. The NRC did not grant an exemption to Entergy...
  • Brodsky v. United States Nuclear Regulatory Comm'n
    • United States
    • U.S. District Court — Southern District of New York
    • March 04, 2011
  • Waterkeeper Alliance v. Envtl. Prot. Agency
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • April 11, 2017
  • Natural Resources Defense Council, Inc. v. Hodel, 87-1432
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • December 30, 1988
  • Get Started for Free
6 firm's commentaries
  • EPA Permitting Regulations Vacated—Project Delays Expected
    • United States
    • Burr & Forman March 29, 2013
    ...concentrations of PM2.5. Finally, to allow EPA to retain (and delegate to the State) discretion on when such an exemption would apply allows the authorities to engage in impermissible cost-benefit analysis, which was expressly rejected in Alabama Power, absent a Congressional grant of such authority under a fair reading of the specific statute, considering its aims and legislative This decision will likely slow down the permitting process for new major sources and modifications. Applicantsmethodologies for establishing a value for the SMC. C. Basis for Rulemaking In the final rule issued on October 10, 2010, EPA adopted and set values for both SILs and SMCs for PM2.5. The legal basis it relied on was Alabama Power Co. v. Costle, 636 F.2d 323 (D.C.Cir.1979), which held that an administrative agency’s de minimis authority to establish categorical exemptions from statutory commands may be permissible as an exercise of agency power, when it is inherent in the statutory scheme,...
  • "D.C. Circuit Decision May Significantly Impact the Process for Obtaining Clean Air Act Permits"
    • United States
    • Skadden, Arps, Slate, Meagher & Flom LLP February 28, 2013
    ...PM2.5 increment. Id. EPA’s rationale for this exemption was that it had legal authority to be flexible in applying Clean Air Act obligations to circumstances that were inconsequential or insignificant, pursuant to Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1979). EPA considered “a source whose individual impact falls below a SIL to have a de minimis impact on air quality concentrations.” 72 Fed. Reg at 54139. As a result, it “considers the conduct of a cumulative air quality...
  • EPA's Missed Opportunity To Ground Its GHG Tailoring Rule In The Statute: What The Situs Argument Would Mean For The Future Of The PSD Program
    • United States
    • May 25, 2012
    ...Cir.); Coalition for Responsible Regulation, Inc. v. EPA, No. 10-1092 (D.C. Cir.); American Chemistry Council v. EPA, No. 10-1167 (D.C. Cir.). 42 U.S.C. §§7401-7671q, ELR Stat. CAA §§101-618. Alabama Power Co. v. Costle, 636 F.2d 323, 10 ELR 20001 (D.C. Cir. 1979), a 90-page opinion, defined the contours of EPA's PSD program, and Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 14 ELR 20507 (1984), a case also addressing the CAA's...
  • 'Utility Regulatory Group v. EPA': U.S. Supreme Court Stops EPA's Rewrite Of The Clean Air Act
    • United States
    • July 03, 2014
    ...475 (2001). UARG reinforces that fundamental principle by flatly rejecting the notion that EPA can turn a blind eye to congressional judgments and legislative compromise in setting greenhouse gas rules. See Alabama Power Co. v. Castle, 636 F.2d 323, 350, 353 (D.C. Cir. 1979) (per curiam) (noting the PSD and Title V programs were structured by Congress to avoid economic Most immediately, the impact of the decision on the pending EPA rules under Section 111 of the...
  • Get Started for Free
20 books & journal articles
  • The Negotiable Implementation of Environmental Law.
    • United States
    • Stanford Law Review Stanford Law School Owen, Dave
    • January 01, 2023
    ...this part applies"); New York v. U.S. EPA, 413 F.3d 3, 11-13 (D.C. Cir. 2005) (describing the evolution of and relationships between the new source standards of performance and new source review programs); Ala. Power Co. v. Costle, 636 F.2d 323, 364-66 (D.C. Cir. 1979) (explaining that the "to which this part applies" language from section 7475 covers facilities built in prevention of significant deterioration (250.) Demonstrating Compliance with New Source Performance...
  • The Colorado Prevention of Significant Deterioration of Air Quality Program
    • United States
    • Colorado Lawyer Colorado Bar Association
    • Invalid date
    ...5 C.C.R. 1001--5.I.B.2.d; 5 C.C.R. 1001--5.I.B.3.e. 22. See, Settlement Agreement, Exhibit B at 1, 2 and 4, supra, note 10. 23. C.R.S. 1973, § 25-7-204(1)(a); 5 C.C.R. 1001--5.IV.D.3.b(i)(A). 1986 24. 636 F.2d 323, 364 (D.C. Cir. 1979). 25. 5 C.C.R. 1001--5.IV.D.3.a(iii); 40 C.F.R. 52.21(m). 26. Id. 27. 5 C.C.R. 1001--5.IV.D.3.a(iii)(D); 5 C.C.R. 1001--5.XIV.B. 28. 5 C.C.R. 1001--5.IV.A....
  • State and federal command-and-control regulation of emissions from fossil-fuel electric power generating plants.
    • United States
    • Environmental Law Lewis & Clark Northwestern School of Law Reitze, Arnold W., Jr.
    • March 22, 2002
    ...continuous emissions control systems. 635 F.2d at 561-62. (327) 1977 Clean Air Act Amendments for Stack Heights, 44 Fed. Reg. 2608 (Dec. 29, 1979) (codified at 40 C.F.R. pt. 51 (2001)). (328) 636 F.2d 323, 387 (D.C. Cir. (329) Approval and Promulgation of State Implementation Plans, 42 Fed. Reg. 57,459, 57,460 (Oct. 31, 1977) (codified at 40 C.F.R. pt. 52 (2001)). (330) Stack Height Regulations, 47 Fed. Reg. 5864...
  • CHAPTER 10 AIR QUALITY ISSUES IMPACTING MIDSTREAM OPERATIONS
    • United States
    • Midstream Oil and Gas from the Upstream Perspective (FNREL) Foundation for Natural Resources and Energy Law
    ...91-604, 84 Stat. 1676 (1970). [58] 40 C.F.R. § 51.166(b)(5). [59] 43 Fed. Reg. 26,383 (June 19, 1978). The analysis applies to both the PSD and later-adopted Title V programs. [60] Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1979). [61] 45 Fed. Reg. 52,676 (Aug. 7, 1980). [62] 45 Fed. Reg. 52,676, 52,694-95 (Aug. 7, 1980) (emphasis added). [63] 40 C.F.R. § 51.166(b)(5). [64] ld. at § 51.166(b)(6). [65] For example,...
  • Get Started for Free