Sierra Club v. Costle
| Decision Date | 01 June 1981 |
| Docket Number | 80-1201,79-1874,Nos. 79-1565,80-1213 and 80-1338,79-1719,79-1867,80-1187,s. 79-1565 |
| Citation | 211 U.S.App.D.C. 336,657 F.2d 298 |
| Parties | , 211 U.S.App.D.C. 336, 11 Envtl. L. Rep. 20,455 SIERRA CLUB, Petitioner, v. Douglas M. COSTLE, Administrator of the Environmental Protection Agency, Respondent, National Coal Association, Alabama Power Company, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Henry V. Nickel, Washington, D.C., with whom George C. Freeman, Jr., Richmond, Va., Michael B. Barr, F. William Brownell, Washington, D.C., Louis E. Tosi and John Murtagh, Toledo, Ohio, were on the brief, for petitioners Appalachian Power Co., et al. in Nos. 79-1719 and 80-1187 and intervenor in Nos. 79-1867, 79-1874, 80-1201 and 80-1213.
Joseph J. Brecher, Oakland, Cal., for petitioner Sierra Club, Nos. 79-1565 and 80-1201 and intervenor in No. 79-1719.
William Butler, Washington, D.C., with whom Larry Martin Corcoran and David J. Lennett, Washington, D.C., were on the brief, for petitioner, Environmental Defense Fund in Nos. 79-1874 and 80-1213. Robert J. Rauch also entered an appearance for Environmental Defense Fund.
Mary E. Hackenbracht, Deputy Atty. Gen., State of California, San Francisco, Cal., was on the brief for petitioner, California Air Resources Bd. in Nos. 79-1867 and 80-1388.
Earl Salo, Atty., Environmental Protection Agency, Charlotte Uram, Atty., Dept. of Justice, Washington, D.C., with whom Angus MacBeth, Acting Asst. Atty. Gen., Dept. of Justice and Todd M. Joseph, Deputy Associate Gen. Counsel, Environmental Protection Agency, Washington, D.C., were on the brief for respondents. James Moorman and Mark Sussman, Attys., Dept. of Justice, Washington, D.C., also entered appearances for respondents.
Ridgway M. Hall, Jr., Washington, D.C., with whom John A. Macleod, Timothy M. Biddle and John T. Scott, III, Washington, D.C., were on the brief for intervenor, National Coal Ass'n in No. 79-1565.
George C. Freeman, Jr., Richmond, Va., Henry V. Nickel and Michael B. Barr, Washington, D.C., also entered appearances for intervenor, Alabama Power Co., et al. in No. 79-1565.
Christopher S. Bond and Charles A. Blackmar, Jefferson City, Mo., also entered appearances for intervenor, Missouri Ass'n of Municipal Utilities in No. 79-1719.
Table of Contents
Page
I. 312
INTRODUCTION
A. The Challenged Standards 312
B. The Parties 312
C. Background 313
D. Procedural History 314
II. THE 316
VARIABLE
PERCENTAGE
REDUCTION
OPTION
A. EPA's Authority Under Section 111 to Issue a Variable 318
Standard
1. The Statutory Language 318
2. The Legislative History 319
B. The Reasonableness of EPA's Decision to Issue a 322
Variable Standard
1. Technical Background 323
2. EPA's Explanation for the Variable Standard 325
(a) The Factors Considered by EPA 325
(b) EPA's Regulatory Analysis 326
(c) EPA's Stated Rationale for the Variable Standard 327
3. An Examination of EPA's Rationale for the Variable 328
Standard
(a) The Lengitimacy of EPA's Regulatory Analysis 329
(1) EPA's Authority to Analyze Long Term National and 329
Regional Impacts
(2) The Reliability of EPA's Econometric Computer 332
Model
(b) The Reasonableness of EPA's Conclusions 336
(1) The Reasonableness of EPA's Conclusion that 336
Variable Control Reflects a Better Balance of the
Section 111 Factors Than Uniform Control
(2) The Reasonableness of EPA's Conclusion that 338
Variable Control Promotes the Policies of the Act
C. The Dry Scrubbing Controversy 340
1. The Role of Dry Scrubbing Technology in EPA's 340
Rationale for the Variable Standard
2. The Legitimacy of Considering Emerging Technology in 346
Setting Section 111 Standards
3. The Adequacy of the Record for Dry Scrubbing's Role 352
in EPA's Rationale
D. The Adequacy of Notice and the Opportunity to Comment 352
on the Rationale for the Variable Standard
III. THE 90 356
PERCENT
REMOVAL
STANDARD
A. Notice As to the Basis of the 90 Percent Standard 356
1. The Basis of the Final Standard 356
2. Notice that the Basis of the Standard Had Changed 358
Since Proposal
B. The Achievability of the 90 Percent Standard 360
1. The Support For EPA's Conclusions About FGD 360
Performance
(a) The Achievability of 92 Percent Long Term Removal 361
Efficiency
(b) The Reasonableness of EPA's Assumption About FGD 364
Variability
2. The Support for EPA's Conclusion that the 90 Percent 367
Standard Was Achievable by the Use of Coal Washing in
Conjunction with Scrubbing
(a) Description of the Coal Washing Process 368
(b) The Percentage Reduction Achieveable by Washing 369
High Sulfer Coal
IV. THE 374
STANDARD FOR
EMISSION OF
PARTICULATE
MATTER
A. Technical Background 374
1. ESP Control Technology 374
2. Baghouse Control Technology 375
B. The Evolution of the Particulate Standard 376
C. The Achievability of the Standard 377
1. EPA's ESP Data 377
2. EPA's Baghouse Data 380
V. THE 1.2 384
LBS./MBTU
EMISSION
CEILING
A. EPA's Rationale for the Emission Ceiling 384
B. EDF's Procedural Attack 386
1. Late Comments 387
2. Meetings 387
C. Standard for Judicial Review of EPA Procedures 391
D. Statutory Provisions Concerning Procedure 392
E. Validity of EPA's Procedures During the the 396
Post-Comment Period
1. Written Comments Submitted During the Post-Comment 397
Period
2. Meetings Held with Individuals Outside EPA 400
(a) Intra-Executive Branch Meetings 404
(b) Meetings Involving Alleged Congressional Pressure 408
VI. CONCLUSION 410
APPENDIX 411
Before ROBB, WALD and GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
This case concerns the extent to which new coal-fired steam generators that produce electricity must control their emissions of sulfur dioxide and particulate matter into the air. In June of 1979 EPA revised the regulations called "new source performance standards" ("NSPS" or "standards") governing emission control by coal burning power plants. On this appeal we consider challenges to the revised NSPS brought by environmental groups which contend that the standards are too lax and
by electric utilities which contend that the standards are too rigorous. Together these petitioners present an array of statutory, substantive, and procedural grounds for overturning the challenged standards. For the reasons stated below, we hold that EPA did not exceed its statutory authority under the Clean Air Act 1 in promulgating the NSPS, and we decline to set aside the standards.
The Clean Air Act provides for direct federal regulation of emissions from new stationary sources of air pollution by authorizing EPA to set performance standards for significant sources of air pollution which may be reasonably anticipated to endanger public health or welfare. 2 In June 1979 EPA promulgated the NSPS involved in this case. 3 The new standards increase pollution controls for new coal-fired electric power plants 4 by tightening restrictions on emissions of...
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