Sierra Club v. Envtl. Prot. Agency

• Decision Date: 14 June 2019
• Docket Number: No. 18-1038,18-1038
• Citation: 926 F.3d 844
• Parties: SIERRA CLUB, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, Administrator, U.S. Environmental Protection Agency, Respondents PacifiCorp and State of Utah, Intervenors
• Court: U.S. Court of Appeals — District of Columbia Circuit

926 F.3d 844

SIERRA CLUB, Petitioner

v. ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, Administrator, U.S. Environmental Protection Agency, RespondentsPacifiCorp and State of Utah, Intervenors

No. 18-1038

United States Court of Appeals, District of Columbia Circuit.

Argued May 1, 2019

Decided June 14, 2019

Keri N. Powell, New York, NY, argued the cause for petitioner. With her on the briefs were Patton Dycus and Joshua Smith.

David J. Kaplan, Senior Attorney, U.S. Department of Justice, argued the cause for respondent Environmental Protection Agency. With him on the brief were Jeffrey Bossert Clark, Assistant Attorney General, Jonathan D. Brightbill, Deputy Assistant Attorney General, and Simi Bhat, Attorney.

E. Blaine Rawson, Salt Lake City, UT, argued the cause for respondent-intervenor PacifiCorp. With him on the brief were Megan McKay Withroder and Marie Bradshaw Durrant, Salt Lake City, UT.

Sean D. Reyes, Attorney General, Office of the Attorney General for the State of Utah, Tyler R. Green, Solicitor General, Utah Attorney General, Christian C. Stephens, and Marina V. Thomas, Assistant Attorneys General, were on the brief for intervenor State of Utah.

Shannon S. Broome, San Francisco, CA, and Charles H. Knauss, Washington, DC, were on the brief for amicus curiae Air Permitting Forum in support of respondent United States Environmental Protection Agency.

Before: Rogers, Tatel and Pillard, Circuit Judges.

Rogers, Circuit Judge:

The threshold question the court must decide that is ultimately dispositive is whether venue is proper in this court pursuant to Section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1). Sierra Club filed a petition for the Administrator of the Environmental Protection Agency to object to a renewal of an operating permit under Title V of the Clean Air Act issued by the State of Utah for the Hunter Power Plant in Emery County, Utah. The renewal permit incorporated requirements in a preconstruction permit under Title I that the Hunter Power Plant obtained in 1997. Based on a new interpretation of his obligations under Title V, the Administrator denied the petition for objection without examining the merits of Sierra Club’s claim. Sierra Club seeks vacatur and remand. Because the Order denying the petition for objection is neither a nationally applicable regulation nor determined by the Administrator to have nationwide scope or effect, venue is not proper in this court. Accordingly, we must dismiss the petition for review.

I.

Title V of the Clean Air Act requires certain stationary sources of air pollution to obtain operating permits. 42 U.S.C. § 7661b. The permit must include enforceable emissions standards and other conditions as necessary to assure compliance with the Clean Air Act’s "applicable requirements" for air pollution prevention and control. Id. § 7661c(a). EPA regulations implementing Title V define "applicable requirements" to include the terms and conditions of Title I preconstruction permits, which must be obtained prior to the construction or modification of certain air pollution sources. 40 C.F.R. § 70.2 ; see also 42 U.S.C. §§ 7475, 7502(c)(5), 7503.

States administer Title V through state implementation plans, which must be approved by EPA. Id . § 7661a(d). When implementing these plans, state permitting authorities must submit Title V permit applications and proposed permits to EPA for review. Id. § 7661d(a). If the Administrator of EPA determines that a proposed permit does not comply with the applicable requirements, then the Administrator "shall ... object to its issuance." Id. § 7661d(b)(1). If the Administrator does not object within 45 days of receiving a proposed permit, then "any person" may petition the Administrator to object. Id. § 7661d(b)(2). The Administrator of EPA must grant or deny the petition within 60 days, and he must object to the issuance of the proposed permit if the petition demonstrates that a permit is not in compliance with applicable requirements. Id. Title V permits must be renewed every five years. Id. § 7661a(b)(5)(B).

PacifiCorp operates the Hunter Power Plant in Emery County, Utah. Pursuant to the Utah state implementation plan, PacifiCorp is required to apply for a Title V operating permit for the Hunter Power Plant. Id. §§ 7661a(a), 7661c(a). PacifiCorp also was required to obtain a Title I preconstruction permit prior to making various modifications to the Hunter Power Plant in the late 1990s. Id. § 7410(a)(2)(c). On December 18, 1997, PacifiCorp obtained a preconstruction permit for the Hunter Power Plant under Utah’s EPA-approved Title I preconstruction permit program. The Utah Department of Environmental Quality, Division of Air Quality ("Utah Department") found that the upcoming modifications would not raise the Hunter Power Plant’s emissions levels because the Plant was placing enforceable limits on its potential to emit. Therefore, the planned construction projects were not classified as major modifications to a major source. See 40 C.F.R. §§ 51.165, 60.2, 60.5. On January 7, 1998, the Utah Department issued a Title V permit for the Hunter Power Plant, which incorporated the requirements from the 1997 preconstruction permit.

In September 2015, Utah published a proposed renewal Title V permit for the Hunter Power Plant. The Administrator of EPA did not object, and the Utah Department issued a renewal permit on March 3, 2016. Sierra Club then petitioned the Administrator of EPA to object to the renewal permit. 42 U.S.C. § 7661d(b)(2). In the petition for objection, Sierra Club argued, among other things, that the modifications to the Hunter Power Plant in the late 1990s did increase emissions and therefore the 1997 preconstruction permit did not assure the Plant’s compliance with applicable requirements for major modifications to major sources, including the requirement to use best available control technology, 42 U.S.C. § 7475(a)(4).

The Administrator of EPA denied Sierra Club’s petition for objection. He determined that, "in light of the circumstances presented ," he would not review the preconstruction permitting decisions notwithstanding Sierra Club’s argument that the 1997 preconstruction permit did not include all applicable requirements for major modifications constructed at the Hunter Power Plant in the late 1990s. Order Denying a Petition for Objection to Permit, In re PacifiCorp Energy, Hunter Power Plant, Emery, Utah , Permit No. 1500101002, Petition No. VIII-2016-4, at 8 (Oct. 16, 2017) (emphasis added) ("Order"). The Administrator stated that when the Utah Department issued the preconstruction permit for the Hunter Power Plant in 1997, EPA had determined the source-specific "applicable requirements" for the modifications for purposes of Title V and found no error in the decision to incorporate the terms from the Title I preconstruction permit into the Title V operating permit without further review. Id. at 11.

The Administrator acknowledged that his decision not to review the substantive merits of Sierra Club’s petition for objection was based on a different interpretation of "applicable requirements," as defined in 40 C.F.R. § 70.2, than had been previously applied when Administrators had substantively reviewed Title I preconstruction permit decisions in later Title V proceedings. See id . at 8–9. Under this Administrator’s analysis of the Clean Air Act’s purpose and scheme, the purpose of Title V is to consolidate all requirements into a single operating permit, not to review the merits of previous Title I preconstruction permitting decisions.

Sierra Club timely petitions for review of the Order denying the petition for objection to renewal of the Title V operating permit of the Hunter Power Plant; it also filed a protective appeal in the U.S. Court of Appeals for the Tenth Circuit, which is being held in abeyance pending the outcome here. Sierra Club v. EPA , Case No. 18-9507 (10th Cir.). Sierra Club seeks vacatur of the Order and remand for the Administrator to respond to the merits of the argument in the petition for objection that the Hunter Power Plant’s 1997 Title I preconstruction permit was based on an erroneous classification of modifications in the late 1990s.

II.

Section 307(b)(1) of the Clean Air Act provides, in relevant part:

A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air standard ... or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator’s action in approving or promulgating any implementation plan ... or any other final action of the Administrator under this chapter ... which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.

42 U.S.C. § 7607(b)(1) (emphases added).

This court has held that that the venue provision of 42 U.S.C. § 7607(b)(1) is not jurisdictional. Dalton Trucking, Inc. v. EPA , 808 F.3d 875, 879–80 (D.C. Cir. 2015) ; Tex. Mun. Power Agency v. EPA , 89 F.3d 858, 867 (D.C. Cir. 1996). Therefore, we begin by addressing Intervenor PacifiCorp’s contention that Sierra Club lacks standing under Article III of the Constitution to obtain review of the Administrator’s Order. Concluding there is standing, we then turn to the question of venue.

A.

PacifiCorp maintains Sierra Club has not sufficiently shown that emissions from the Hunter Power Plant cause injury to its members or that their...