Nat'l Parks Conservation Ass'n v. U.S. Envtl. Prot. Agency

• Decision Date: 29 September 2015
• Docket Number: No. 14–3147.,14–3147.
• Citation: 803 F.3d 151
• Parties: NATIONAL PARKS CONSERVATION ASSOCIATION; Sierra Club; Clean Air Council, Petitioners v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. * Pennsylvania Department of Environmental Protection; Homer City Generation LP, Intervenors. *(Pursuant to Clerk Order dated 08/21/14).
• Court: U.S. Court of Appeals — Third Circuit

803 F.3d 151

NATIONAL PARKS CONSERVATION ASSOCIATION; Sierra Club; Clean Air Council, Petitioners

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.* Pennsylvania Department of Environmental Protection; Homer City Generation LP, Intervenors.*(Pursuant to Clerk Order dated 08/21/14).

No. 14–3147.

United States Court of Appeals, Third Circuit.

Argued April 14, 2015.

Opinion Filed: Sept. 29, 2015.

David S. Baron, Esq., Earthjustice Legal Defense Fund, Washington, DC, Charles McPhedran, Esq., [Argued], Earthjustice, Philadelphia, PA, Counsel for Petitioners.

Kate R. Bowers, Esq., [Argued], United States Department of Justice Environment and Natural Resources Division, Washington, DC, Regina McCarthy, Esq., Environmental Protection Agency, Ariel Rios Building, Washington, DC, Counsel for Respondent.

Robert A. Reiley, Esq. [Argued], Kristen M. Furlan, Esq., Pennsylvania Department of Environmental Resources, Office of Chief Counsel, Harrisburg, PA, Counsel

for Intervenor Pennsylvania Department of Environmental Protection.

Chet M. Thompson, Esq. [Argued], Kirsten L. Nathanson, Esq., Crowell & Moring, Washington, DC, Counsel for Intervenor Homer City Generation LP.

Before: AMBRO, VANASKIE, and SHWARTZ, Circuit Judges.

OPINION OF THE COURT

VANASKIE, Circuit Judge.

Section 169A of the Clean Air Act, 42 U.S.C. § 7491, and implementing regulations promulgated by the United States Environmental Protection Agency (“EPA”) require states to evaluate the impact that emissions from certain sources of pollution within their borders have on atmospheric visibility in national parks and wilderness areas. After conducting this evaluation, the Commonwealth of Pennsylvania declined to require its sources to implement additional pollution controls because it concluded that the costs associated with the controls outweighed the limited visibility improvements they would produce. The Commonwealth's conclusions were set forth in its 2010 State Implementation Plan (“SIP”), which was approved by the EPA in 2014.

Alleging that the EPA's approval of Pennsylvania's SIP was arbitrary and capricious, the National Parks Conservation Association, Sierra Club, and Clean Air Council (collectively, “Conservation Groups”) filed the petition for review presently before the Court. For the reasons that follow, we will grant the petition in part and deny it in part, and remand the matter to the EPA for further consideration.

I.

A. Statutory and Regulatory Framework

In 1970, Congress enacted the Clean Air Act, 42 U.S.C. §§ 7401 –7671q, to address the increasing amount of air pollution created by the industrialization of the United States and the resulting threat to public health and welfare. Employing “cooperative federalism,” the Clean Air Act gives both the federal government and the states responsibility for maintaining and improving air quality: “the federal government develops baseline standards that the states individually implement and enforce.” Bell v. Cheswick Generating Station, 734 F.3d 188, 190 (3d Cir.2013) (citation and quotation marks omitted).

As originally enacted, the Clean Air Act “did not elaborate on the protection of visibility as an air-quality related value.” Chevron U.S.A., Inc. v. EPA, 658 F.2d 271, 272 (5th Cir.1981) (emphasis added). In 1977, however, Congress added § 169A to the Clean Air Act “[i]n response to a growing awareness that visibility was rapidly deteriorating in many places, such as wilderness areas and national parks....” Id. With § 169A, Congress “established as a national goal the ‘prevention of any future, and the remedying of any existing, impairment in visibility in mandatory class I areas which impairment results from man-made air pollution.’ ” Am. Corn Growers Ass'n v. EPA, 291 F.3d 1, 3 (D.C.Cir.2002) (per curiam) (quoting 42 U.S.C. § 7491(a)(1) ). The protected “Class I areas” include certain national parks and wilderness areas under 42 U.S.C. § 7472(a).¹ “Visibility impairment” means both “reduction in visual range and atmospheric discoloration.” Id. § 7491(g)(6).

In connection with § 169A, Congress directed the EPA to issue regulations to ensure “reasonable progress” toward the national goal of restoring visibility conditions to their natural state in Class I areas. Id. § 7491(a)(4). Congress dictated that the EPA's regulations require adoption of a State Implementation Plan (“SIP”) by each state that has a Class I area within its borders or whose emissions “may reasonably be anticipated to cause or contribute to any impairment of visibility” in any Class I area. Id. § 7491(b)(2). Each SIP must include, inter alia, emission limits, compliance schedules, and a long-term strategy for meeting the national visibility goal. Id. In response to this statutory directive, the EPA promulgated the Regional Haze Rule in 1999. Regional Haze Regulations, 64 Fed.Reg. 35,714 (July 1, 1999).²

Section 169A and the Regional Haze Rule also require each SIP to include a determination of the best available retrofit technology (“BART”) for certain major stationary sources of pollution that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. North Dakota v. EPA, 730 F.3d 750, 756 (8th Cir.2013) (citing 42 U.S.C. § 7491(b)(2)(A) ; 40 C.F.R. §§ 51.301, 51.308(e) ). BART is defined as “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.

To satisfy the BART requirements, a state's SIP must first identify all “BART-eligible” sources within its borders. Under the regulations, a stationary source of air pollution is BART-eligible if it: (1) was in existence on August 7, 1977, but not in operation prior to August 7, 1962; (2) fits within one of 26 identified categories; and (3) has the potential to emit annually at least 250 tons of any air pollutant. Id.

Next, a state's SIP must determine which of these BART-eligible sources are “subject to BART.” A source is subject to BART if it “emits any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandatory Class I Federal area.” Id. § 51.308(e)(1)(ii) (emphasis added). The EPA recommends that a state consider a source to “cause” visibility impairment if it is responsible for a change in visibility in a Class I area of at least 1.0 deciview.³

Regional Haze Regulations and Guidelines for Best Available Retrofit Technology (BART) Determinations, 70 Fed.Reg. 39,104, 39,118 (July 6, 2005). The suggested threshold for determining whether a source “contributes” to visibility impairment at a level no higher than 0.5 deciviews. Id.

For each BART-eligible source that is subject to BART, the state must conduct a source-specific analysis to determine appropriate emission limitations. In so doing, states “weigh[ ] the following five factors: (1) ‘the costs of compliance’; (2) ‘the energy and non[-]air 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 technology.’ ” WildEarth Guardians v. EPA, 759 F.3d 1064, 1068 (9th Cir.2014) (quoting 42 U.S.C. § 7491(g)(2) ; 40 C.F.R. pt. 51, app. Y ).

To aid states in identifying BART-eligible sources and determining appropriate emission limitations, the EPA issued the BART Guidelines, 70 Fed.Reg. 39,156. WildEarth Guardians, 759 F.3d at 1068. The Guidelines, issued in 2005, provide states with a five-step process for making their source-specific BART determinations, and these five steps subsume the statutory considerations listed above. Id. at 1068–69 (citing 70 Fed.Reg. 39,127 ). Under the Guidelines, a state is to first identify all available retrofit control technologies. Second, technically infeasible options are eliminated. Third, the effectiveness of the remaining control techniques is assessed. Fourth, the impacts, including the cost of compliance, energy impacts, non-air quality impacts, and the remaining useful life of the facility, are evaluated. Finally, a state must estimate the visibility impacts at Class I areas. Id. at 1069 (citing 70 Fed.Reg. 39,164, 39,166 ). While states are required to use the Guidelines when making BART determinations for any fossil fuel-fired power plant with a total electricity generating capacity of 750 megawatts or more, the Guidelines are advisory for smaller BART-eligible sources. Id. (citing 42 U.S.C. § 7491(b)(2)(B) ; 40 C.F.R. § 51.308(e)(1)(ii)(B) ).

As an alternative to conducting this source-specific analysis, states may instead implement another program if they can demonstrate it is “better-than-BART” at reducing emissions. Specifically, the regional haze regulations permit a state to “opt to implement or require participation in an emissions trading program or other alternative measure” if it can show that the program would result in “greater reasonable progress” toward the national goal of restoring natural visibility “than would be achieved through the installation and operation of BART.” 40 C.F.R. § 51.308(e)(2). States participating in such programs do not have to conduct a source-specific BART analysis or compel pollution sources within their borders to install, operate, and maintain BART at their facilities. Id.

Regardless of whether a state conducts the source-specific BART analysis or follows the better-than-BART approach, it must ultimately submit its SIP to the EPA. The EPA, in turn, must review the SIP and determine whether it meets the requirements of the Clean Air Act. 42 U.S.C. § 7410(a)(1). The EPA is required to approve a SIP as a whole if it meets all the statutory requirements, and it may approve any portion of a SIP that meets the requirements. Id. at § 7410(k)(3). If a state fails to submit a...