Nat'l Parks Conservation Ass'n v. McCarthy

• Decision Date: 14 March 2016
• Docket Number: Nos. 12–2910,12–3481.,s. 12–2910
• Citation: 816 F.3d 989
• Parties: NATIONAL PARKS CONSERVATION ASSOCIATION; Voyageurs National Park Association ; Friends of the Boundary Waters Wilderness ; Sierra Club; Minnesota Center for Environmental Advocacy ; Fresh Energy, Petitioners v. Gina McCARTHY, Administrator, United States Environmental Protection Agency; United States Environmental Protection Agency, Respondents. National Parks Conservation Association; Voyageurs National Park Association ; Friends of the Boundary Waters Wilderness ; Sierra Club; Minnesota Center for Environmental Advocacy ; Fresh Energy, Petitioners v. Gina McCarthy, Administrator, United States Environmental Protection Agency; United States Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

816 F.3d 989

NATIONAL PARKS CONSERVATION ASSOCIATION; Voyageurs National Park Association ; Friends of the Boundary Waters Wilderness ; Sierra Club; Minnesota Center for Environmental Advocacy ; Fresh Energy, Petitioners

v.Gina McCARTHY, Administrator, United States Environmental Protection Agency; United States Environmental Protection Agency, Respondents.

National Parks Conservation Association; Voyageurs National Park Association ; Friends of the Boundary Waters Wilderness ; Sierra Club; Minnesota Center for Environmental Advocacy ; Fresh Energy, Petitioners

v.Gina McCarthy, Administrator, United States Environmental Protection Agency; United States Environmental Protection Agency, Respondents.

Nos. 12–2910

12–3481.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 23, 2015.

Filed: March 14, 2016.

Janette K. Brimmer, Matthew Evan Gerhart, Seattle, WA, Kevin Reuther, Saint Paul, MN, for Petitioners.

Norman Louis Rave, Jr., Matthew Marks, and Lea Anderson, and Angeline Purdy of Washington, DC, Thomas Kenney, Chicago, IL, for Respondents.

Before RILEY, Chief Judge, BYE and BENTON, Circuit Judges.

BENTON

, Circuit Judge.

On June 12, 2012, EPA approved the Minnesota Regional Haze State Implementation Plan. Six conservation organizations¹ petition for review of the Plan. Having jurisdiction under 42 U.S.C. § 7607(b)(1)

, this court denies the petition.

I.

A.

A national goal is natural visibility in "mandatory class I Federal areas." 42 U.S.C. § 7491(a)(1)

. States must revise their environmental plans to include "measures as may be necessary" for reasonable progress toward the national goal. § 7491(b)(2). Some major stationary facilities that emit "any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in [class I Federal areas]" must install and operate the best available retrofit technology ("BART"). § 7491(b)(2)(A).

BART is "an emission limitation based on the degree of reduction achievable through the application of the best system of continuous emission reduction for each pollutant which is emitted by an existing stationary facility." 40 C.F.R. § 51.301

. When implementing BART, the state must consider five statutory factors: "the costs of compliance, the energy and nonair quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of improvement in visibility" from BART. 42 U.S.C. § 7491(g)(2).

In 1999, EPA offered an alternative to BART if "the State demonstrates that an emissions trading program or other alternative will achieve greater reasonable progress toward natural visibility conditions." Regional Haze Regulations, 64 Fed.Reg. 35,714, 35,767 (July 1, 1999)

. See also 40 C.F.R. § 51.308(e)(2). For BART alternatives, a state must submit a "demonstration that the emissions trading program or other alternative measure will achieve greater reasonable progress than would have resulted from the installation and operation of BART at all sources subject to BART in the State." § 51.308(e)(2)(i). The demonstration includes several steps. § 51.308(e)(2)(i)(A)–(E). A state may satisfy the final step of the demonstration by meeting two criteria: "(i) Visibility does not decline in any Class I area, and (ii) There is an overall improvement in visibility, determined by comparing the average differences between BART and the alternative over all affected Class I areas." § 51.308(e)(3) (emphasis added).

On June 7, 2012, EPA determined that the Transport Rule—also known as the Cross–State Air Pollution Rule ("CSAPR")—is "better than BART." Regional Haze: Alternatives to Source–Specific Best Available Retrofit Technology (BART) Determinations, 77 Fed.Reg. 33,642, 33,648 (June 7, 2012)

(Better than BART Rule). According to EPA, the Transport Rule achieves "greater reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas than source-specific Best Available Retrofit Technology (BART) in those states covered by the Transport Rule." Id. at 33,643. States subject to the Transport Rule may use its emissions-trading program instead of source-specific BART. 40 C.F.R. § 51.308(e)(4). See EPA v. EME Homer City Generation, L.P., ––– U.S. ––––, 134 S.Ct. 1584, 1610, 188 L.Ed.2d 775 (2014), approving 76 Fed.Reg. 48,208 (Aug. 8, 2011) (Transport Rule).

In addition to BART requirements, a state must propose a long-term strategy plan for regional haze, including "enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals established by States having mandatory Class I Federal areas." 40 C.F.R. § 51.308(d)(3)

. States must "establish goals ... that provide for reasonable progress towards achieving natural visibility conditions" at Class I areas. § 51.308(d)(1). In establishing such goals, a state must consider four factors: "the costs 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 the goal." § 51.308(d)(1)(i)(A). The state must also "[a]nalyze and determine the rate of progress needed to attain natural visibility conditions by the year 2064." § 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.’ " North Dakota v. EPA, 730 F.3d 750, 756 (8th Cir.2013)

, quoting 40 C.F.R. § 51.308(d)(1)(ii). "The reasonable progress goals established by the State are not directly enforceable but will be considered by the Administrator in evaluating the adequacy of the measures in the implementation plan to achieve the progress goal adopted by the State." 40 C.F.R. § 51.308(d)(1)(v).

B.

Minnesota has two Class I federal areas: the Boundary Waters Canoe Area Wilderness and Voyageurs National Park. Proposed Rule; Minnesota; Regional Haze, 77 Fed.Reg. 3,681, 3,686 (Jan. 25, 2012)

. Minnesota has five electric-generating units (EGUs) subject to BART that pollute these Class I areas (and also affect the visibility in Isle Royale National Park in Michigan). Id. at 3,686, 3,688. For these EGUs, Minnesota proposed using the Transport Rule rather than source-specific BART. Id. at 3,691. Days after EPA determined that the Transport Rule was "better than BART," EPA approved the Minnesota Plan, stating that "it is acceptable for Minnesota to substitute participation in the [Transport Rule] trading programs for source-specific BART." Approval and Promulgation of Air Quality Implementation Plans; Minnesota; Regional Haze, 77 Fed.Reg. 34,801, 34,803 (June 12, 2012).

EPA also approved Minnesota's reasonable-progress goals to "attain natural visibility conditions in Boundary Waters in 2093 and in Voyageurs in 2177." Id.

Minnesota must review and reassess these reasonable-progress goals and its Plan "by July 31, 2018 and every ten years thereafter." 40 C.F.R. § 51.308(f).

The conservation organizations challenge EPA's approval of Minnesota's decision to use the Transport Rule in place of source-specific BART, and Minnesota's reasonable-progress goals.

II.

The conservation organizations petition for review under 42 U.S.C. § 7607(b)(1)

. Neither side disputes this court's jurisdiction to consider the reasonable-progress goals in the Plan. EPA, however, asserts that its approval of the Plan based on the Transport Rule is a nationally-applicable action that must be reviewed in the D.C. Circuit. The conservation organizations counter that EPA's approval of the Plan—including Minnesota's reliance on the Transport Rule—is a local or regional action that must be reviewed by this court.

Section 7607(b)(1)

has three parts. First, only the D.C. Circuit may review a petition for review of "nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter." 42 U.S.C. § 7607(b)(1). Second, only an appropriate circuit court of appeals may review a "petition for review of the Administrator's action ... which is locally or regionally applicable." Id. This includes petitions for review of the "Administrator's action in approving or promulgating any implementation plan under section 7410." Id. However, for a "locally or regionally applicable" action, only the D.C. Circuit may review the petition "if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination." Id. See Lion Oil Co. v. EPA, 792 F.3d 978, 982 (8th Cir.2015) (holding this court had jurisdiction to hear a locally or regionally applicable action because EPA did not publish a finding of nationwide scope or effect).

Section 7607(b)(1)

thus has two routes for review in the D.C. Circuit. Am. Rd. & Transp. Builders Ass'n v. EPA, 705 F.3d 453, 455 (D.C.Cir.2013). First, "EPA's regulations may themselves be nationally applicable," and second, "EPA may determine that the otherwise locally or regionally applicable regulations have a nationwide scope or effect" then find and publish the determination. Id. EPA's " ‘action in approving or promulgating any implementation plan’ is the prototypical ‘locally or regionally applicable’ action that may be challenged only in the appropriate regional court of appeals." Id.See alsoATK Launch Sys., Inc. v. EPA, 651 F.3d 1194, 1199 (10th Cir.2011) (describing an action challenging a state plan as a "purely local action" and "an undisputably regional action"). EPA has not found and published a determination of nationwide scope or effect...