Central Arizona Water Conservation Dist. v. U.S. E.P.A., No. 91-70731

CourtU.S. Court of Appeals — Ninth Circuit
Writing for the CourtGOODWIN
Citation990 F.2d 1531
Parties, 61 USLW 2627, 143 P.U.R.4th 110, 23 Envtl. L. Rep. 20,678 CENTRAL ARIZONA WATER CONSERVATION DISTRICT, Central Arizona Irrigation and Drainage District, Maricopa-Stanfield Irrigation & Drainage District, New Magma Irrigation & Drainage District, and Harquahala Valley Irrigation District, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Salt River Project and Power District, Grand Canyon Trust, and the Wilderness Society, Respondents-Intervenors.
Decision Date25 March 1993
Docket NumberNo. 91-70731

Page 1531

990 F.2d 1531
36 ERC 1177, 61 USLW 2627, 143
P.U.R.4th 110,
23 Envtl. L. Rep. 20,678
CENTRAL ARIZONA WATER CONSERVATION DISTRICT, Central Arizona
Irrigation and Drainage District, Maricopa-Stanfield
Irrigation & Drainage District, New Magma Irrigation &
Drainage District, and Harquahala Valley Irrigation
District, Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,
Salt River Project and Power District, Grand Canyon Trust,
and the Wilderness Society, Respondents-Intervenors.
No. 91-70731.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Jan. 13, 1993.
Decided March 25, 1993.

Page 1533

Marvin S. Cohen, Sacks, Tierney & Kasen, Leslie A. McCarthy (on brief), Phoenix, AZ, for petitioners.

Scott A. Schachter, U.S. Dept. of Justice, Vicki L. Patton, U.S. E.P.A., Washington, DC, for respondent.

Patrick M. Raher, Hogan & Hartson, Washington, DC, for respondents-intervenors.

Beryl I. Dulsky, Asst. Atty. Gen., Phoenix, AZ, for amicus curiae.

Appeal from the United States Environmental Protection Agency.

Before: ALDISERT, * GOODWIN, and FLETCHER, Circuit Judges.

GOODWIN, Circuit Judge:

Petitioners Central Arizona Water Conservation District ("CAWCD") and four irrigation districts 1 (collectively "Petitioners" or the "Districts") challenge an Environmental Protection Agency ("EPA") Final Rule which requires a 90% reduction in sulfur dioxide (SO sub2 ) emissions at the Navajo Generating Station ("NGS") in order to improve winter average visibility in the Grand Canyon National Park ("Grand Canyon").

Petitioners argue (1) that, because the Final Rule seeks to regulate "regional haze" when EPA has yet to promulgate Phase II implementing regulations addressing regional haze, EPA exceeded the scope of its regulatory authority by issuing the Final Rule, and (2) that the Final Rule constitutes arbitrary and capricious agency action. In addition to responding to Petitioners' substantive criticisms, EPA asserts that Petitioners lack standing to bring this challenge.

The Final Rule was issued by EPA under 42 U.S.C. §§ 7410(c)(1), 7491, and is directly appealable to this court under 42 U.S.C. § 7607(b)(1). Petitioners do have standing to bring this challenge. We hold, however, that EPA acted within its statutory and regulatory authority when it promulgated the Final Rule, and that EPA has not acted arbitrarily and capriciously.

I. BACKGROUND

This case involves regulations promulgated by EPA in an attempt to remedy, at least partially, visibility impairment at the Grand Canyon. In a final rule entitled "Approval and Promulgation of Implementation Plans: Revision of the Visibility FIP for Arizona," 56 Fed.Reg. 50,172 (1991) (codified at 40 C.F.R. § 52) ("Final Rule"), EPA required a 90% reduction in SO sub2 emissions at NGS, a power plant situated approximately twelve miles from the Grand Canyon, near Page, Arizona. The Final Rule limits SO sub2 emissions from NGS to 0.10 pound per million British thermal units (lb/MMBtu), with an estimated 7% winter average visibility improvement in the Grand Canyon. The estimated cost of the improvement, following an initial capital cost estimated at $430 million, is $89.6 million per year.

The Salt River Project ("SRP"), a respondent-intervenor in this case, 2 is the operating agent of NGS. NGS is jointly owned by SRP, the U.S. Department of Interior, Bureau of Reclamation ("BOR"), Los Angeles Department of Water and Power, Arizona Public Service Co., Nevada Power Co. and Tucson Gas & Electric Co. 3 Petitioners

Page 1534

are water districts that obtain electricity to pump their water primarily from NGS. They acknowledge that they are not owners of NGS, but nonetheless claim an economic interest in the Final Rule. CAWCD claims that it will be required, due to its contractual relationship with the BOR, to repay the major portion of the BOR's 24.3% share of the costs of installing and maintaining the emission controls required by the Final Rule.

A. Regulatory Framework

1. The Clean Air Act, Visibility Impairment, and the Grand Canyon

In 1977, Congress substantially amended the Clean Air Act (the "Act"). Included in the 1977 amendments was section 169A, 42 U.S.C. § 7491, which declared "as a national goal the prevention of any future, and the remedying of 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). Congress required EPA to promulgate regulations to assure "reasonable progress toward meeting th[is] national goal." 42 U.S.C. § 7491(a)(4). EPA was further directed to require each state with a class I Federal area to revise its state implementation plan ("SIP") "to contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward meeting the national goal." 42 U.S.C. § 7491(b)(2). Measures for achieving "reasonable progress" generally include best available retrofit technology ("BART") 4 and a long-term strategy. 42 U.S.C. §§ 7491(b)(2)(A), (B). If an individual state fails to fulfill its obligations under the Act, EPA is directed to take such measures as are required to achieve "reasonable progress" pursuant to a federal implementation plan ("FIP") under section 110(c) of the Act. 42 U.S.C. § 7410(c)(1).

The Act defines class I Federal areas as international parks, national wilderness areas or memorial parks which exceed 5,000 acres in size, and national parks which exceed 6,000 acres in size. 42 U.S.C. § 7472(a). The Grand Canyon has been classified as a class I Federal area. See 44 Fed.Reg. 69,122 (1979). Congress recorded its concern with the visibility impairment at the Grand Canyon caused by NGS. See H.R.Rep. No. 294, 95th Cong., 1st Sess. 203-04 (1977) U.S.Code Cong. & Admin.News pp. 1077, 1282, 1283.

2. EPA's 1980 Regulations

In 1980, EPA promulgated visibility regulations under section 169A of the Act. 45 Fed.Reg. 80,084 (1980) (codified at 40 C.F.R. §§ 51.300-.307). The regulations adopted a "phased approach to visibility protection." Id. at 80,085. Phase I was directed at controlling visibility impairment "that can be traced to a single existing stationary facility or small group of existing stationary facilities." Id. EPA refers to this type of impairment as "reasonably attributable" impairment. 45 Fed.Reg. 34,762, 34,779 (1980) (codified at 40 C.F.R. § 51). EPA deferred addressing other types of impairment such as "regional haze" for future phases due to the heightened complexity and the scientific and technical limitations inherent in attempts to identify, measure, and control such broadscale visibility impairment. See 45 Fed.Reg. at 80,086; see also id. at 80,085 (defining regional haze as "widespread, regionally homogeneous haze from a multitude of sources which impairs visibility in every direction over a large area").

Page 1535

Generally, EPA's "Phase I" regulations require affected states to coordinate the development of SIPs with the appropriate Federal land managers, to develop programs to assess and remedy visibility impairment from new and existing sources, and to develop a long-term strategy to assure reasonable progress toward section 169A's national visibility goal. See 40 C.F.R. §§ 51.300-.307. The regulations specifically require states to identify those existing sources "which may reasonably be anticipated to cause or contribute" to any visibility impairment which is "reasonably attributable to that existing stationary facility." 40 C.F.R. § 51.302(c)(4)(i). Once the source is identified, the affected state is required to take such measures as are required to attain "reasonable progress"; such measures generally include determination of emissions limitations for that source under BART and the development of a long-term strategy. 40 C.F.R. §§ 51.302(c)(1), (2).

The regulations define the term "visibility impairment" as "any humanly perceptible change in visibility (visual range, contrast, coloration) from that which would have existed under natural conditions." 40 C.F.R. § 51.301(x). The term "reasonably attributable" is defined as "attributable by visual observation or any other technique the State deems appropriate." 40 C.F.R. § 51.301(s). The states, or EPA under § 7410(c), thus have broad discretion in determining how and whether impairment may be attributed to an individual source. See 45 Fed.Reg. at 80,094, 80,085.

B. Prior Proceedings and the Rulemaking History

In its implementation of Phase I, EPA required all states containing class I Federal areas to submit revised visibility SIPs within a nine-month period. Arizona was one of thirty-five states failing to submit a revised SIP to EPA. In 1982, the Environmental Defense Fund and other environmental groups brought a citizen suit against EPA to compel performance of the agency's nondiscretionary duty under 42 U.S.C. § 7410(c)(1)(A) to promulgate visibility FIPs when states fail to submit SIPs pursuant to the 1980 regulations. See EDF v. Reilly, No. C82-6850-RPA (N.D.Cal. Apr. 20, 1984). The parties reached a settlement agreement which the court approved in an April 20, 1984 consent decree. This consent decree required EPA to review existing SIPs for deficiencies and allow states to cure those deficiencies. If states remained deficient, the consent decree required EPA to issue visibility FIPs.

The Department of Interior subsequently certified the existence of visibility impairment in all class I Federal areas, and specifically declared NGS as a probable source of impairment at the Grand Canyon. Following this certification, the National Park Service ("Park Service") conducted the Winter Haze Intensive Tracer Experiment ("WHITEX"), a winter visibility attribution study. In part, WHITEX involved the release from NGS of a unique "tracer" gas, CD sub4 ; because CD sub4 is not found in the ambient air, its use "fingerprinted" NGS emissions when detected downwind.

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    ...Alaska Oil & Gas Ass'n v. Ross , ––– U.S. ––––, 138 S.Ct. 924, 200 L.Ed.2d 202 (2018) ; Cent. Ariz. Water Conservation Dist. v. EPA , 990 F.2d 1531, 1539-40 (9th Cir. 1993) ). They further point out that the Service relied on the Coates Study "only for the limited purpose of assessing the g......
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