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

• Decision Date: 09 June 2015
• Docket Number: Nos. 12–73710,12–73757.,s. 12–73710
• Citation: 788 F.3d 1134
• Parties: NATIONAL PARKS CONSERVATION ASSOCIATION; Montana Environmental Information Center; Sierra Club, Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY and Lisa P. Jackson, Administrator, United States Environmental Protection Agency, Respondents, PPL Montana, LLC, Respondent–Intervenor. PPL Montana LLC, Petitioner, National Parks Conservation Association, Montana Environmental Information Center, and Sierra Club, Intervenors, v. U.S. Environmental Protection Agency and Lisa P. Jackson, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

788 F.3d 1134

NATIONAL PARKS CONSERVATION ASSOCIATION; Montana Environmental Information Center; Sierra Club, Petitioners

v.U.S. ENVIRONMENTAL PROTECTION AGENCY and Lisa P. Jackson, Administrator, United States Environmental Protection Agency, Respondents

PPL Montana, LLC, Respondent–Intervenor.

PPL Montana LLC, Petitioner

National Parks Conservation Association, Montana Environmental Information Center, and Sierra Club, Intervenors

v.U.S. Environmental Protection Agency and Lisa P. Jackson, Respondents.

Nos. 12–73710

12–73757.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 2014.

Filed June 9, 2015.

Lisa S. Blatt, Arnold & Porter LLP, Washington, DC, argued the cause and filed the briefs for petitioner PPL Montana. With her on the briefs were Jonathan S. Martel and Christopher A. Jaros, Arnold & Porter, LLP, Washington, DC.

Jenny K. Harbine, Earthjustice, Bozeman, MT, argued the cause and filed the briefs for NPCA. Wither her on the briefs was Janette K. Brimmer, Earthjustice, Seattle, WA.

Daniel Pinkston, Environmental Defense Section, Environment and Natural Resources Division, United States Department of Justice, Denver, CO, argued the cause and filed the brief for respondents. With him on the brief were Ignacia S. Moreno, Assistant Attorney General, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, and Elizabeth B. Dawson, Environmental Defense Section, Environment and Natural Resources Division, United States Department of Justice, Washington, DC.

Michael G. Jenkins, Assistant General Counsel, PacifiCorp Energy, Salt Lake City, UT and E. Blaine Rawson, Ray Quinney & Nebeker, P.C., Salt Lake City, UT, filed the brief for Amicus Curiae PacifiCorp.

On Petition for Review of an Order of the Environmental Protection Agency. EPA No. EPA–R08–OAR–2011–0851.

Before: DIARMUID F. O'SCANNLAIN, MARSHA S. BERZON, and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge O'SCANNLAIN.

Concurrence by Judge BERZON.

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether the Environmental Protection Agency's regional haze regulations for the State of Montana lawfully prescribe emission limits at certain power plants.

I

Petitioner PPL Montana operates and partially owns coal-fired and hydroelectric power plants in Montana, including the Colstrip Steam Electric Generating Station (“Colstrip”) and the J.E. Corette Steam Electric Station (“Corette”). Petitioners National Parks Conservation Association, Montana Environmental Information Center, and Sierra Club (collectively, “NPCA”) are nonprofit conservation organizations whose members enjoy wilderness areas impacted by EPA's regional haze regulations for the State of Montana. Both petitioners are dissatisfied with such regulations. PPL Montana argues, in essence, that they are too stringent; NPCA argues, to the contrary, that they do not do enough to remedy visibility impairment caused by regional haze in various relevant wilderness areas.

A

Regional haze is “visibility impairment caused by geographically dispersed sources emitting fine particles and their precursors into the air.” Am. Corn Growers Ass'n v. EPA, 291 F.3d 1, 3 (D.C.Cir.2002) (per curiam) (citing Regional Haze Regulations, 64 Fed.Reg. 35,714 (July 1, 1999) (codified at 40 C.F.R. Pt. 51)). Congress enacted §§ 169A and 169B of the Clean Air Act (the “CAA” or the “Act”) to address the problem of regional haze. Id. at 3–4; see Clean Air Act Amendments of 1977, Pub.L. No. 95–95, § 128, 91 Stat. 685, 742 (current version at 42 U.S.C. § 7491 ); Clean Air Act Amendments, Pub L. No. 101–549, § 816, 104 Stat. 2695 (1990) (current version at 42 U.S.C. § 7492 ). These provisions establish as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I areas which impairment results from manmade air pollution.”¹ 42 U.S.C. § 7491(a)(1).

The Act imposes several requirements on States and on EPA relevant to this case. First, the Act requires EPA to promulgate regulations to “assure ... reasonable progress toward meeting the national goal” of regional haze reduction. 42 U.S.C. § 7491(a)(4). Second, the Act invites each State to submit to EPA a “State Implementation Plan” (“SIP”) setting forth emission limits and other measures necessary to make reasonable progress toward the national visibility goal. See 42 U.S.C. §§ 7410(a), 7491(b)(2). If, like Montana, a State chooses not to submit such a plan, the Act requires EPA to produce a “Federal Implementation Plan” (“FIP”) for that State. See 42 U.S.C. § 7410(c)(1)(A).

The Act further provides that all implementation plans must require installation of the “best available retrofit technology” (“BART”) to reduce emissions from certain emission sources that were operational between 1962 and 1977 (“BART-eligible sources”). See 42 U.S.C. § 7491(b)(2), (g). Five statutory factors determine which type of emissions-reducing technology constitutes BART for such sources:

(a) the costs of compliance;

(b) the energy and non-air quality environmental impacts of compliance;

(c) any existing pollution control technology at a source;

(d) the remaining useful life of the emission source; and

(e) the degree of visibility improvement anticipated[.]

42 U.S.C. § 7491(g)(2).

Pursuant to the Act, EPA promulgated its Regional Haze Regulations (the “Regulations”), which asked certain States, including Montana, to analyze sources of emissions within the State and to develop a plan to eliminate all man-made visibility impacts by 2064. See 64 Fed.Reg. at 35,714; 40 C.F.R. § 51.308. The Regulations require any implementation plan to include (1) “reasonable progress goals”; (2) a calculation of baseline and natural visibility conditions; (3) a long-term strategy for achieving “reasonable progress goals”; and (4) additional monitoring of emission sources in Class I federal areas. See 40 C.F.R. § 51.308(d)(1)-(4). After the D.C. Circuit vacated the provisions of the Regulations relating to BART determinations, see Am. Corn Growers, 291 F.3d at 6, EPA promulgated new BART regulations in its Regional Haze Regulations and Guidelines for Best Available Retrofit Technology (BART) Determinations (the “2005 Regulations”), which revised the text of the earlier Regulations. See 70 Fed.Reg. 39,104 (July 6, 2005).

EPA also published its Guidelines for BART Determinations Under the Regional Haze Rule (the “Guidelines”), 40 C.F.R. Pt. 51, App. Y (Sept. 6, 2005), prescribing five steps for application of the five statutory BART factors:

(Step 1) Identify all available retrofit control technologies;

(Step 2) Eliminate technically infeasible options;

(Step 3) Evaluate the control effectiveness of remaining control technologies;

(Step 4) Evaluate impacts (identified in § 7491(g)(2), see 40 C.F.R. Pt. 51, App. Y, § IV.D.4, 70 Fed.Reg. at 39,166 ) and document the results;

(Step 5) Evaluate visibility impacts (measured in “deciviews,” see 40 C.F.R. § 51.301 ).²

Id. App. Y § IV.D.

B

In 2006, the Montana Department of Environmental Quality notified EPA that it did not intend to produce a SIP triggering EPA's obligation to produce a FIP for the State of Montana. See 42 U.S.C. § 7410(c)(1)(A). EPA published a proposed FIP for Montana on April 20, 2012 (the “Proposed Rule”). See Approval and Promulgation of Implementation Plans; State of Montana, 77 Fed.Reg. 23,988 (Apr. 20, 2012).

The Proposed Rule required petitioner PPL Montana to take various actions to reduce emissions of two compounds—nitrogen oxide (“NO_x”) and sulfur dioxide (“SO₂”)—at two power plants it partially owns and operates, Colstrip and Corette. First, PPL Montana was required to implement several new technologies at Units 1 and 2 of the four-unit Colstrip station. To reduce NO_xemissions to a 30–day rolling average of 0.15 lb/mmBtu, the Proposed Rule required PPL Montana to install two new technologies—separated overfire air (“SOFA”) and selective non-catalytic reduction (“SNCR”) at Colstrip Units 1 and 2. Id. at 24,027, 24,035. To reduce SO₂emissions to a 30–day rolling average of 0.08 lb/mmBtu, the Proposed Rule required PPL Montana to implement two additional new technologies at Colstrip Units 1 and 2—lime injection and a fourth “scrubber.” Id. at 24,028, 24,035. The Proposed Rule did not require PPL Montana to implement new technologies at Colstrip Units 3 and 4.

Second, the Proposed Rule required PPL Montana to limit NO_xand SO₂emissions at the Corette station. The Proposed Rule imposed 30–day average rolling emission limits of 0.40 lb/mmBtu for NO_xand 0.70 lb/mmBtu for SO₂. See id. at 24,042, 24,046. It required PPL Montana to achieve such emissions using current technology; unlike at Colstrip Units 1 and 2, the Proposed Rule does not require installation of new technology at Corette. Id. at 24,043, 24,047.

Both PPL Montana and NPCA commented on the Proposed Rule. At the conclusion of the notice and comment period, EPA issued its final FIP for Montana on September 18, 2012. See Approval and Promulgation of Implementation Plans; State of Montana (the “Final Rule” or the “Rule”), 77 Fed.Reg. 57,864 (Sept. 18, 2012) (codified at 40 C.F.R. § 52.1396 ). The Final Rule implemented the Proposed Rule in almost all respects relevant to this appeal.³

C

PPL Montana and NPCA both filed petitions for review of EPA's BART determinations at Colstrip and Corette, which petitions were consolidated for purposes of this appeal. PPL Montana contends that the emissions limits set forth in the Rule for NO_xand SO₂at Colstrip Units 1 and 2—as well as the BART determinations underlying such limits—are essentially too stringent. It argues that EPA failed reasonably to explain the Rule's BART selections and that EPA's visibility model does not reasonably anticipate visibility improvement as a result of the Rule's requirements. PPL Montana also challenges the emissions set forth in the Rule for Corette.

NPCA also challenges the Rule's emissions limits and BART determinations at Colstrip...