Natural Resources Defense Council, Inc. v. Thomas, Nos. 85-1488 and 86-1331

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore RUTH B. GINSBURG and WILLIAMS, Circuit Judges, and AUBREY E. ROBINSON, Jr.; WILLIAMS
Citation838 F.2d 1224
Parties, 267 U.S.App.D.C. 274, 56 USLW 2467, 18 Envtl. L. Rep. 20,519 NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. Lee M. THOMAS, Administrator, United States Environmental Protection Agency, Respondent, Alabama Power Company, et al., American Paper Institute and the National Forest Products Association, National Coal Association, Kennecott, Natural Resources Defense Council, Inc. and Sierra Club, State of Ohio, Intervenors. OHIO POWER COMPANY, Petitioner, v. Lee M. THOMAS, Administrator, United States Environmental Protection Agency, et al., Respondents, Natural Resources Defense Council, Inc. and Sierra Club, Intervenors.
Docket NumberNos. 85-1488 and 86-1331
Decision Date13 April 1988

Page 1224

838 F.2d 1224
27 ERC 1041, 267 U.S.App.D.C. 274, 56
USLW 2467,
18 Envtl. L. Rep. 20,519
NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners,
v.
Lee M. THOMAS, Administrator, United States Environmental
Protection Agency, Respondent,
Alabama Power Company, et al., American Paper Institute and
the National Forest Products Association, National Coal
Association, Kennecott, Natural Resources Defense Council,
Inc. and Sierra Club, State of Ohio, Intervenors.
OHIO POWER COMPANY, Petitioner,
v.
Lee M. THOMAS, Administrator, United States Environmental
Protection Agency, et al., Respondents,
Natural Resources Defense Council, Inc. and Sierra Club, Intervenors.
Nos. 85-1488 and 86-1331.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 25, 1987.
Decided Jan. 22, 1988.
As Amended April 13, 1988.

David G. Hawkins, with whom Richard E. Ayers and Howard I. Fox, Washington, D.C., for the Natural Resources Defense Council, Inc., et al., James M. Shannon, Atty. Gen. and Janet G. McCabe, Asst. Atty. Gen., the Commonwealth of Massachusetts, Boston, Mass., James E. Tierney, Atty. Gen. for the State of Maine, Augusta, Me., and Robert Abrams, Atty. Gen. for the State of New York, Albany, N.Y., were on the brief for petitioners.

Robert Whitehead and Kenneth N. Tedford, Asst. Atty. Gen., State of Conn., Hartford, Conn., and Greg Sample, Asst. Atty. Gen., State of Maine, Augusta, Me., also entered an appearance for Natural Resources Defense Council, Inc., et al.

Henry V. Nickel, with whom F. William Brownell and Mel S. Schulze, Washington, D.C., for Alabama Power Co., et al., Donald

Page 1229

C. Winson and Richard S. Wiedman, Pittsburgh, Pa. for Ormet Corp.; Robert F. Stauffer, Washington, D.C. and David C. Branand, Cleveland, Ohio for National Coal Ass'n, and Michael H. Holland and Earl R. Pfeffer, Washington, D.C., for United Mine Workers of America were on the joint brief for petitioners Alabama Power Co., et al. John W. Ublinger, Jr. also entered an appearance for petitioner Ormet Corp.

Lawrence A. Demase, Pittsburgh, Pa., and J. Daniel Hull, Washington, D.C., were on the brief for petitioners Monongahela Power Co. and Potomac Edison Co.

Ann G. Daniels, San Francisco, Cal., entered an appearance for petitioner Environmental Defense Fund, Inc.

Paul H. Schneider, Asst. Atty. Gen., State of New Jersey, Trenton, entered an appearance for petitioner, State of New Jersey.

Charles Carter, Asst. Gen. Counsel, EPA and Lisa F. Ryan, Atty., U.S. Dept. of Justice, with whom Scott Slaughter, Atty. Dept. of Justice, Alan Eckert, Associate General Counsel, EPA and Patricia Embrey, Atty., EPA, Washington, D.C., were on the brief for respondents. Michael W. Steinberg, Atty., U.S. Dept. of Justice and Gaylene Vasaturo, Atty., EPA, Washington, D.C., also entered an appearance for respondents.

Alfred V.J. Prather and Kurt E. Blase, Washington, D.C., were on the brief for intervenor Kennecott.

Dale T. Vitale, Asst. Atty. Gen., Columbus, Ohio for the State of Ohio, was on the brief for intervenor-respondent the State of Ohio.

Henry V. Nickel, F. William Brownell and Mel S. Schulze, Washington, D.C. for Alabama Power Co., et al., Michael K. Glenn, Washington, D.C., for American Paper Institute, et al., and David C. Branand, Washington, D.C., for National Coal Ass'n., were on the brief for intervenors Alabama Power Co., et al. Richard S. Wasserstrom, Washington, D.C., also entered an appearance for American Paper Institute, et al. Robert F. Stauffer, Washington, D.C., also entered an appearance for National Coal Ass'n.

Edwin Lloyd Pittman, Atty. Gen. State of Mississippi and Robert Franklin Spencer, Asst. Atty. Gen., State of Mississippi, Jackson, Miss., were on the brief for amici curiae the State of Mississippi, et al. urging affirmance.

Before RUTH B. GINSBURG and WILLIAMS, Circuit Judges, and AUBREY E. ROBINSON, Jr., Chief Judge, U.S. District Court for the District of Columbia. *

Opinion for the Court filed by Circuit Judge WILLIAMS.

 I. BACKGROUND ............................................... 1231
                 II. STACK HEIGHT VALIDATION: EMISSIONS RATE ASSUMPTIONS
                 IN DEMONSTRATIONS ........................................ 1233
                 A. The Control-First Dispute ............................. 1233
                 B. Demonstrations Supporting Stack Height Increases
                 Within the Formula .................................... 1239
                 1. Attacks on the formula ............................. 1239
                 2. Attacks on the demonstration procedures ............ 1239
                 C. The NSPS Presumption for Above-Formula Stacks ......... 1240
                 1. Substantive objections ............................. 1241
                 2. Procedural challenges .............................. 1242
                III. STACK GRANDFATHERING ISSUES .............................. 1243
                 A. Sheltering pre-October 1, 1983 Within-Formula Stack
                 Increases from the Demonstration Requirement .......... 1244
                 B. Automatic Credit to Formula Height for
                 pre-January 12, 1979 Stacks ........................... 1246
                 1. Credit up to 2.5H for pre-1979 sources showing
                 reliance ........................................... 1247
                 2. Credit up to Hk1.5L for pre-1979 sources not
                 showing reliance ................................... 1248
                 C. EPA's Definition of "Stack Height in Existence" ....... 1248
                 D. Application of New Demonstration Requirements to
                 Sources that Have Completed Demonstrations ............ 1249
                 IV. PLUME RISE ............................................... 1251
                 A. Original Design and Construction as One Stack ......... 1252
                 B. General Rule for Merged Stacks ........................ 1254
                 C. Partial Grandfathering of Stacks Merged Before
                 July 8, 1985 .......................................... 1255
                 V. MISCELLANY ............................................... 1256
                 A. Multi-Point Rollback .................................. 1256
                 B. Definition of "Nearby" as Used in Demonstrations ...... 1256
                 C. Modeling Adjustments for Complex Terrain .............. 1257
                CONCLUSION ..................................................... 1257
                

Page 1230

WILLIAMS, Circuit Judge:

Under the Clean Air Act as amended in 1970, 42 U.S.C. Secs. 7401 et seq. (1982), the Environmental Protection Agency sets national ambient air quality standards ("NAAQS") for various pollutants. Id. Sec. 7409. Once they are set, each state must adopt and submit to the EPA a state implementation plan ("SIP") providing for achievement of the standards in each air quality control region. Id. Sec. 7410(a)(1). 1 Such plans obviously must distribute the necessary pollution cutbacks among the various pollution sources. From 1970 to this day a dispute has raged over the extent to which pollution sources may make their required contribution toward these localized clean air goals by dispersing pollution rather than by reducing their emissions.

Dispersion may be either through space or time. A source may disperse its pollution through space by such devices as "tall stacks," which carry the pollutants away from the region and from the ground levels at which satisfaction of the NAAQS is measured. It may disperse pollution over time by intermittent controls systems ("ICS"), which vary the time of discharges so as to take advantage of changes in weather conditions.

Dispersion techniques vary from emission reductions in two fundamental ways. They are, at least up to a point, considerably cheaper than emissions reductions. This makes them attractive to industry and often to the states of origin. (The attraction may be particularly great where the state of origin produces high-sulphur coal.) On the other hand, reliance on such techniques increases the aggregate amounts of pollution dumped into the atmosphere. This makes them unattractive to environmentalists and to the citizens of downwind states, 2 to which the pollution will be swept and where acid rain may result.

First the courts and then Congress intervened to prevent states from allowing pollution sources to satisfy their obligations by means of dispersion. As a result, reductions in local ground-level pollution do not "count" toward satisfaction of the NAAQS to the extent that they rely on those dispersion techniques that are disapproved.

While these limitations obviously relate to important goals, the system has a certain eccentricity. The ambient air quality standards are ones to be fulfilled in more than 236 specific local areas. The anxiety over dispersion stems primarily from dispersion's impact outside the region of origin. But the means of allaying that anxiety is to disregard, for purposes of measuring contribution to local clean air, conduct which indisputably helps clean local air.

Page 1231

Yet none of the constraints on dispersion, whether devised by courts, EPA or Congress, has forged an operating link between those constraints and the injuries inflicted by dispersion. Thus, although the parties adduce some figures as to changes over time in total atmospheric "loadings" of sulphur dioxide, these are not related to any statutory goal or to any scheme for attaining specific cutbacks. This incongruity may account for some of the logical difficulties encountered in trying to apply the statute and controlling precedents.

The battle has proceeded in the agency, the courts and Congress. The latter tried to resolve the matter in 1977 by adding a new provision to the Act, Sec. 123, 42 U.S.C. Sec. 7423 (1982), which has not proved at all free of ambiguity. This court reviewed the EPA's 1982 "stack height" regulations in Sierra Club v. Environmental Protection Agency, 719 F.2d 436 (D.C.Cir.1983), cert. denied, 468 U.S. 1204, 104 S.Ct. 3571, 82 L.Ed.2d 870 (1984) ("Sierra Club "). We affirmed many aspects of those regulations, invalidated two provisions, and directed the agency to reconsider other provisions on remand. In 1985 the agency promulgated a new set of regulations attempting to respond to Sierra Club. 3 In these consolidated cases, environmental petitioners led by the...

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90 practice notes
  • Environmental Protection Agency,
    • United States
    • Federal Register May 02, 2002
    • May 2, 2002
    ...intent that above-formula stack height credit should be granted only in rare circumstances and with utmost caution. See NRDC v. Thomas, 838 F.2d 1224, 1242; Sierra Club v. EPA, 719 F.2d 436, In addition to the language we cited in our TSD, there is additional preamble language that is relev......
  • Environmental Protection Agency,
    • United States
    • Federal Register May 02, 2002
    • May 2, 2002
    ...intent that above-formula stack height credit should be granted only in rare circumstances and with utmost caution. See NRDC v. Thomas, 838 F.2d 1224, 1242; Sierra Club v. EPA, 719 F.2d 436, In addition to the language we cited in our TSD, there is additional preamble language that is relev......
  • Federal Labor Relations Authority v. U.S. Dept. of Treasury, Financial Management Service, No. 87-1107
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 13, 1989
    ...contexts courts have found a statutory requirement of necessity satisfied even when alternative means were feasible. See NRDC v. Thomas, 838 F.2d 1224, 1236-38 (D.C.Cir.1988) (citing cases); cf. Board of Trustees of State University of New York v. Fox, --- U.S. ----, ----, 109 S.Ct. 3028, 3......
  • Natural Resources Defense Council, Inc. v. U.S. E.P.A., No. 80-1607
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 30, 1988
    ...any information-gathering process other than issuances of new or revised Page 191 notices of proposed rulemaking. Cf. NRDC v. Thomas, 838 F.2d 1224, 1242 (D.C.Cir.1988) (upholding regulations altered from original proposal and noting agency's informal efforts, on eve of final promulgation, ......
  • Request a trial to view additional results
81 cases
  • Federal Labor Relations Authority v. U.S. Dept. of Treasury, Financial Management Service, No. 87-1107
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 13, 1989
    ...contexts courts have found a statutory requirement of necessity satisfied even when alternative means were feasible. See NRDC v. Thomas, 838 F.2d 1224, 1236-38 (D.C.Cir.1988) (citing cases); cf. Board of Trustees of State University of New York v. Fox, --- U.S. ----, ----, 109 S.Ct. 3028, 3......
  • Natural Resources Defense Council, Inc. v. U.S. E.P.A., No. 80-1607
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 30, 1988
    ...any information-gathering process other than issuances of new or revised Page 191 notices of proposed rulemaking. Cf. NRDC v. Thomas, 838 F.2d 1224, 1242 (D.C.Cir.1988) (upholding regulations altered from original proposal and noting agency's informal efforts, on eve of final promulgation, ......
  • Sanofi-Aventis U.S., LLC v. U.S. Dep't of Health & Human Servs., Civil Action 21-00634 (FLW)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • November 5, 2021
    ...Still, comments on an agency proposal can be relevant if they raise a foreseeable possibility of agency action. NRDC v. Thomas, 838 F.2d 1224, 1243 (D.C. Cir. 1988); Mid Continent Nail Corp. v. United States, 846 F.3d 1364, 1378 (Fed. Cir. 2017) (“[R]esponses by commentators may be relevant......
  • Georgia v. Wheeler, No. 2:15-cv-00079
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • August 21, 2019
    ...of distance limitations sufficient to provide public notice. See 79 Fed. Reg. at 22,214 ; Dkt. No. 219 at 26 (citing NRDC v. Thomas, 838 F.2d 1224, 1242 (D.C. Cir. 1988) ). Finally, the handful of comments inquiring as to what distance would be considered sufficiently close in the Agencies'......
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1 books & journal articles
  • The State Implementation Plan Process
    • United States
    • Air pollution control and climate change mitigation law
    • August 18, 2010
    ...IV, because all SO 2 emissions are regulated, not just those measured as at ground level. 106. 50 Fed. Reg. 27892 (July 8, 1985). 107. 838 F.2d 1224, 18 ELR 20519 (D.C. Cir. 1988). Page 68 Air Pollution Control and Climate Change Mitigation Law §2(i). International Air Pollution—Clean Air A......

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