New York v. E.P.A., No. 03-1380.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtRogers
Citation443 F.3d 880
Decision Date17 March 2006
Docket NumberNo. 04-1064.,No. 05-1287.,No. 03-1390.,No. 04-1029.,No. 04-1035.,No. 03-1453.,No. 03-1381.,No. 03-1454.,No. 05-1234.,No. 03-1380.,No. 03-1383.,No. 03-1402.
PartiesState of NEW YORK, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Clean Air Implementation Project, et al., Intervenors.

Page 880

443 F.3d 880
State of NEW YORK, et al., Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent
Clean Air Implementation Project, et al., Intervenors.
No. 03-1380.
No. 03-1381.
No. 03-1383.
No. 03-1390.
No. 03-1402.
No. 03-1453.
No. 03-1454.
No. 04-1029.
No. 04-1035.
No. 04-1064.
No. 05-1234.
No. 05-1287.
United States Court of Appeals, District of Columbia Circuit.
Argued February 8, 2006.
Decided March 17, 2006.

Page 881

On Petitions for Review of Final Actions of the Environmental Protection Agency.

J. Jared Snyder, Assistant Attorney General, Attorney General's Office of the State of New York, argued the cause for Government Petitioners. With him on the briefs were Eliot Spitzer, Attorney General, Peter Lehner and Michael J. Myers, Assistant Attorneys General, Bill Lockyer, Attorney General, Attorney General's Office of the State of California, Matthew J. Goldman, Deputy Attorney General, Richard Blumenthal, Attorney General, Attorney General's Office of the State of Connecticut, Kimberly Massicotte and Matthew Levine, Assistant Attorneys General, M. Jane Brady, Attorney General, Attorney General's Office of the State of Delaware, Valerie S. Csizmadia, Deputy Attorney General, Lisa Madigan, Attorney General, Attorney General's Office of the State of Illinois, Thomas Davis, Chief, G. Steven Rowe, Attorney General, Attorney General's Office of the State of Maine, Gerald D. Reid, Assistant Attorney General, J. Joseph Curran, Jr., Attorney General, Attorney General's Office of the State of Maryland, Kathy M. Kinsey, Assistant Attorney General, Thomas F. Reilly, Attorney General, Attorney General's Office of the Commonwealth of Massachusetts, James R. Milkey, Assistant Attorney General, Kelly A. Ayotte, Attorney General, Attorney General's Office of the State of New Hampshire, Maureen D. Smith, Senior Assistant Attorney General, Peter C. Harvey, Attorney General, Attorney General's Office of the State of New Jersey, Stephanie Brand, Kevin Auerbacher, Jean Reilly, and Ruth Carter, Assistant Attorneys General, Patricia A. Madrid, Attorney General, Attorney General's Office of the State of New Mexico, Tracy M. Hughes, General Counsel, Robert A. Reiley, Assistant Counsel, Commonwealth of Pennsylvania, Department of Environmental Protection, Patrick C. Lynch, Attorney General, Attorney General's Office of the State of Rhode Island, Tricia K. Jedele, Special Assistant Attorney General, William H. Sorrell, Attorney General, Attorney General's Office of the State of Vermont, Erick Titrud and Kevin O. Leske, Assistant Attorneys General, Peggy A. Lautenschlager, Attorney General, Attorney General's Office of the State of Wisconsin, Thomas L. Dosch, Assistant Attorney General, Robert J. Spagnoletti, Attorney General, Attorney General's Office of the District of Columbia, Edward E. Schwab, Deputy Attorney General, Donna M. Murasky, Senior Litigation Counsel, Barbara Baird, District Counsel, South Coast Air Quality Management District, Daniel C. Esty, Christopher P. McCormack, Christopher G. King, Assistant Corporation Counsel, City of New York, Kristine Poplawski, Deputy City Attorney, City and County of San Francisco. John V. Dorsey, Assistant Attorney General, Attorney General's Office of the State of Maryland, William L. Pardee, Assistant Attorney General, Attorney General's Office of the Commonwealth of Massachusetts, Eric Ames and J. Brent Moore, Attorneys, Attorney General's Office of the State of New Mexico, and Lisa S. Gelb, Counsel, City and County of San Francisco, entered appearances.

Howard I. Fox argued the cause for Environmental Petitioners and Intervenor. With him on the briefs were Keri N. Powell, John D. Walke, Jonathan F. Lewis, Ann B. Weeks, Leah Walker Casey, and Michael D. Fiorentino. Blair W. Todt entered an appearance.

Richard E. Ayres was on the brief of amicus curiae Calpine Corporation in support of petitioners.

Hope M. Babcock was on the brief of amici curiae American Thoracic Society, et al. in support of environmental petitioners.

Page 882

Victor B. Flatt was on the brief of amici curiae Senator Hillary Rodham Clinton, et al. in support of petitioners.

Geoffrey M. Klineberg was on the brief of amicus curiae Atlantic Salmon Federation in support of petitioners.

Angeline Purdy and Cynthia J. Morris, Attorneys, U.S. Department of Justice, argued the cause for respondent. With them on the brief was John C. Cruden, Deputy Assistant Attorney General. Michael B. Heister, Attorney, and Carol S. Holmes, Counsel, U.S. Environmental Protection Agency, entered appearances.

F. William Brownell argued the cause for Industry Intervenors in support of respondent. With him on the brief were William H. Lewis, Jr., Henry V. Nickel, Makram B. Jaber, David S. Harlow, Katherine D. Hodge, John L. Wittenborn, Leslie Sue Ritts, Lorane Hebert, and Charles H. Knauss. Russell S. Frye entered an appearance.

Judith Williams Jagdmann, Attorney General, Attorney General's Office of the Commonwealth of Virginia, William E. Thro, State Solicitor General, D. Mathias Roussy, Associate State Solicitor General, Carl Josephson, Senior Assistant Attorney General, Troy King, Attorney General, Attorney General's Office of the State of Alabama, Robert D. Tambling, Assistant Attorney General, David W. Marquez, Attorney General, Attorney General's Office of the State of Alaska, Steven E. Mulder, Assistant Attorney General, Mike Beebe, Attorney General, Attorney General's Office of the State of Arkansas, Teresa Marks, Deputy Attorney General, Lawrence E. Long, Attorney General, Attorney General's Office of the State of South Dakota, Roxanne Giedd, Deputy Attorney General, Mark L. Shurtleff, Attorney General, Attorney General's Office of the State of Utah, Fred Nelson, Assistant Attorney General, Patrick J. Crank, Attorney General, Attorney General's Office of the State of Wyoming, Vicci M. Colgan, Senior Assistant Attorney General, Phill Kline, Attorney General, Attorney General's Office of the State of Kansas, David W. Davies, Assistant Attorney General, Jeremiah W. (Jay) Nixon, Attorney General, Attorney General's Office of the State of Missouri, James R. Layton, State Solicitor, Jon Bruning, Attorney General, Attorney General's Office of the State of Nebraska, Wayne Stenehjem, Attorney General, Attorney General's Office of the State of North Dakota, and Lyle G. Witham, Assistant Attorney General, were on the brief of Intervening States. Michael R. O'Donnell, Assistant Attorney General, Attorney General's Office of the State of Wyoming, R. Craig Kneisel, Assistant Attorney General, Attorney General's Office of the State of Alabama, Roger L. Chafee, Senior Assistant Attorney General, Attorney General's Office of the Commonwealth of Virginia, entered appearances.

Jim Petro, Attorney General, Attorney General's Office of the State of Ohio, Henry McMaster, Attorney General, Attorney General's Office of the State of South Carolina, Steve Carter, Attorney General, Attorney General's Office of the State of Indiana, Thomas M. Fisher, Solicitor General, Valerie Tachtiris, Deputy Attorney General, and John J. Bursch were on the brief of amici curiae States of Indiana, Ohio, and South Carolina in support of respondent. Steven D. Griffin, Assistant Attorney General, Attorney General's Office of the State of Indiana, entered an appearance.

Daniel J. Popeo, Paul D. Kamenar, and Paul M. Seby were on the brief of amicus curiae Washington Legal Foundation in support of respondent.

Before: ROGERS, TATEL and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Page 883

ROGERS, Circuit Judge.


In New York v. EPA, 413 F.3d 3 (D.C.Cir.2005) ("New York I"), the court addressed the first of two rules promulgated by the Environmental Protection Agency providing ways for stationary sources of air pollution to avoid triggering New Source Review ("NSR"). The court upheld in part and vacated in part the first rule. Id. at 10-11. We now address the second rule, the Equipment Replacement Provision ("ERP"), which amends the Routine Maintenance, Repair, and Replacement Exclusion ("RMRR") from NSR requirements. Under section 111(a)(4) of the Clean Air Act, 42 U.S.C. § 7411(a)(4), sources that undergo "any physical change" that increases emissions are required to undergo the NSR permitting process. See also id. §§ 7501(4), 7479(2)(C)(cross-referencing id. § 7411(a)(4)). The exclusion has historically provided that routine maintenance, repair, and replacement do not constitute changes triggering NSR. The ERP both defined and expanded that exclusion. EPA explained:

[The] rule states categorically that the replacement of components with identical or functionally equivalent components that do not exceed 20% of the replacement value of the process unit and does not change its basic design parameters is not a change and is within the RMRR exclusion.

Equipment Replacement Provision of the Routine Maintenance, Repair and Replacement Exclusion, 68 Fed.Reg. 61,248, 61,270 (Oct. 27, 2003) ("Final Rule"); see also 70 Fed.Reg. 33,838 (June 10, 2005)("Reconsideration"). Hence, the ERP would allow sources to avoid NSR when replacing equipment under the twenty-percent cap notwithstanding a resulting increase in emissions. The court stayed the effective date of the ERP on December 24, 2003. We now vacate the ERP because it is contrary to the plain language of section 111(a)(4) of the Act.

The Clean Air Act requires new and modified sources of pollution to undergo NSR, a permitting process that imposes specific pollution control requirements depending upon the geographic location of the source.1 Section 111(a)(4) of the Act describes when a source is to be considered "modified":

The term "modification" means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not...

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50 practice notes
  • Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule
    • United States
    • Federal Register June 03, 2010
    • June 3, 2010
    ...prominently includes Alabama Power v. Costle, 636 F.2d 323 (DC Cir. 1980). The Court cited the doctrine most recently in New York v. EPA, 443 F.3d 880, 884, 888 (DC Cir. As we stated in the proposed rulemaking, ``We believe that the ``administrative necessity'' case law establishes a three-......
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    ...that struck a balance between economic and environmental interests, and to stimulate technology to control pollution.". New York v. EPA, 443 F.3d 880, 889 (D.C.Cir. 2006). In this major overhaul to the CAA, Congress enacted the waiver provision that currently appears at 42 U.S.C. § 7543(b).......
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    ...549 U.S. 561, 127 S.Ct. 1423, 167 L.Ed.2d 295 (2007) ("Duke Energy"); the District of Columbia Circuit's decision in New York v. E.P.A., 443 F.3d 880 (D.C.Cir.2006), rehearing en banc denied June 30, 2006 (Case No. 03-1380) ("New York II"), and the appeals of this court's decisions in Natio......
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    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
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    ...not binding, by Duke Energy III, New York v. EPA, 413 F.3d 3, 11-17 (D.C.Cir.2005) ("New York I") and New 681 F. Supp.2d 1297 York v. EPA, 443 F.3d 880 (D.C.Cir.2006), cert. denied, 550 U.S. 928, 127 S.Ct. 2127, 167 L.Ed.2d 882 (2007) ("New York II"). The Supreme Court summarized the histor......
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34 cases
  • Green Mountain Chrysler Plymouth Dodge v. Crombie, No. 2:05-CV-302.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • September 12, 2007
    ...that struck a balance between economic and environmental interests, and to stimulate technology to control pollution.". New York v. EPA, 443 F.3d 880, 889 (D.C.Cir. 2006). In this major overhaul to the CAA, Congress enacted the waiver provision that currently appears at 42 U.S.C. § 7543(b).......
  • Sierra Club v. Tennessee Valley Authority, No. 3:02-cv-2279-VEH.
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    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • January 6, 2009
    ...549 U.S. 561, 127 S.Ct. 1423, 167 L.Ed.2d 295 (2007) ("Duke Energy"); the District of Columbia Circuit's decision in New York v. E.P.A., 443 F.3d 880 (D.C.Cir.2006), rehearing en banc denied June 30, 2006 (Case No. 03-1380) ("New York II"), and the appeals of this court's decisions in Natio......
  • US v. Alabama Power Co., Case No. 2:01-cv-00152-VEH.
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    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • July 24, 2008
    ...not binding, by Duke Energy III, New York v. EPA, 413 F.3d 3, 11-17 (D.C.Cir.2005) ("New York I") and New 681 F. Supp.2d 1297 York v. EPA, 443 F.3d 880 (D.C.Cir.2006), cert. denied, 550 U.S. 928, 127 S.Ct. 2127, 167 L.Ed.2d 882 (2007) ("New York II"). The Supreme Court summarized the histor......
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5 books & journal articles
  • United States v. DTE Energy Co.: A Flawed Decision With Implications for the Future Enforceability of New Source Review
    • United States
    • Environmental Law Reporter Nbr. 45-6, June 2015
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