Tennessee Valley Authority v. U.S. E.P.A.
| Decision Date | 08 January 2002 |
| Docket Number | No. 00-16234.,No. 00-12310.,No. 00-12457.,No. 00-12311.,No. 00-15936.,No. 00-16235.,No. 00-16236.,No. 00-12349.,No. 00-12458.,No. 00-12459.,00-12310.,00-12311.,00-12349.,00-12457.,00-12458.,00-12459.,00-15936.,00-16234.,00-16235.,00-16236. |
| Parties | TENNESSEE VALLEY AUTHORITY, Petitioner, Georgia Power Company, Intervenor, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, John H. Hankinson, Jr., Regional Administrator, et al., Respondents. Alabama Power Company, Duke Energy Corporation, Petitioners, Georgia Power Company, Intervenor, v. United States Environmental Protection Agency, John H. Hankinson, Jr., Regional Administrator, et al., Respondents. Tennessee Valley Authority, Petitioner, Georgia Power Company, Intervenor, v. United States Environmental Protection Agency, John H. Hankinson, Jr., Regional Administrator, et al., Respondents. Tennessee Valley Authority, Petitioner, Georgia Power Company, Intervenor, v. United States Environmental Protection Agency, John H. Hankinson, Jr., Regional Administrator, et al., Respondents. Alabama Power Company, Duke Energy Corporation, Petitioners, Georgia Power Company, Intervenor, v. United States Environmental Protection Agency, John H. Hankinson, Jr., Regional Administrator, et al., Respondents. Tennessee Valley Authority, Petitioner, Georgia Power Company, Intervenor, v. United States Environmental Protection Agency, John H. Hankinson, Jr., Regional Administrator, et al., Respondents. Tennessee Valley Authority, Petitioner, v. Christine Todd Whitman, Administrator, United States Environmental Protection Agency, United States Environmental Protection Agency, Respondents. Alabama Power Company, Petitioner, v. Christine Todd Whitman, Administrator, United States Environmental Protection Agency, United States Environmental Protection Agency, Respondents. Tennessee Valley Public Power Association, Memphis Light, Gas & Water Division, Electric Power Board of Chattanooga, et al., Petitioners, v. Christine Todd Whitman, Administrator, United States Environmental Protection Agency, United States Environmental Protection Agency, Respondents. Duke Energy Corporation, Petitioner, v. Christine Todd Whitman, Administrator, United States Environmental Protection Agency, United States Environmental Protection Agency, Respondents. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
J. Robin Rogers, Frederick Ladd Hitchcock, Timothy H. Nichols, Carlos Clifford Smith, Mark Windhorn Smith, Strang, Fletcher, Carriger, Walker, Hodge & Smith, Chattanooga, TN, James E. Fox, Robert Chester Glinski, Harriet A. Cooper, Gregory R. Signer, Ronald E. Klipsch, James B. Hall, TVA, Office of General Counsel, Knoxville, TN, Makram B. Jaber, F. William Brownell, Henry V. Nickel, Hunton & Williams, Washington, DC, Melvin Scott Schulze, Hunton & Williams, Atlanta, GA, for TVA.
James C. Cope, Murfree, Cope, Hudson & Scarlett, Murfreesboro, TN, David Gualtieri, J. Steven Rogers, Environmental & Natural Resources Div., Environmental Defense Section, U.S. Dept. of Justice, Washington, DC, for EPA.
Wiliam H. Lewis, Jr., Morgan, Lewis & Bockius, LLP, Washington, DC, for American Forest & Paper Ass'n, Amicus Curiae.
David R. Wooley, Young, Sommer, Ward, Ritzenbert, Wooley, Baker & Moore, LLC, Albany, NY, for Southern Alliance for Clean Energy, Amicus Curiae.
Margaret Campbell, Ogletree, Deakins, Nash, Smoak & Stewart, Atlanta, GA, Eugene W. Ward, General Counsel, Electric Power Bd., Nashville, TN, J. Maxwell Williams, Memphis, TN, Henry C. Tharpe, Jr., Kinney, Kemp, Pickell, Sponcler & Joiner, Dalton, GA, Benjamin Franklin Johnson, IV, Hunton & Williams, Daniel S. Reinhardt, Marshall B. Dukes, Troutman Sanders, Atlanta, GA, Karl R. Moor, Washington, DC, Peter Crane Anderson, Hunton & Williams, Charlotte, NC, for Intervenor, Georgia Power Co.
Angelia Souder Blackwell, Atlanta, GA, for Whitman and EPA.
Karl R. Moor, Southern Co., Washington, DC, Steven G. McKinney, Michael D. Freeman, Lyle David Larson, R. Bruce Barze, Jr., for Alabama Power Co. Balch & Bingham, Birmingham, AL, for Alabama Power Co.
J. Maxwell Williams, Memphis Light, Ga & Water Div., Memphis, TN, for Memphis Light, Gas & Water Div.
Garry Stephen Rice, Duke Energy Corp., T. Thomas Cottingham, Hunton & Williams, Charlotte, NC, for Duke Energy Corp.
Petitions for Review of Orders of the Environmental Protection Agency.
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
Pursuant to the Clean Air Act (CAA), 42 U.S.C. § 7607(b), the Tennessee Valley Authority (TVA), joined by a number of private power companies and industry associations, petitions for review of three orders issued to it by the Environmental Protection Agency (EPA).1 Centrally at issue in these orders is EPA's determination that certain maintenance and repair projects conducted by TVA at many of its coal-fired power plants in the past twenty years constituted "modifications" that required TVA to obtain pre-construction permits and to bring the plants into compliance with the more stringent emissions limitations that apply to new facilities. The challenged orders therefore require TVA to obtain these permits after the fact, and to install the mandated pollution control devices at all the "modified" plants. In response to EPA's determination, TVA principally argues that the maintenance it conducted at its plants was "routine," and as such, is statutorily exempted from the requirements that apply to "modifications." TVA contends that EPA's orders rely on a new and different interpretation of "routine," and that its attempt to apply that interpretation retroactively deprived TVA of fair notice. It also challenges the methodology by which EPA determined whether TVA's projects at the power plants resulted in an emissions increase. Arguing that EPA's determination was arbitrary, capricious, and contrary to law, TVA seeks to have the orders set aside.
EPA has filed a number of motions to dismiss, arguing that for various reasons this Court lacks subject matter jurisdiction to review the dispute between EPA and TVA. EPA has also moved to dismiss all parties other than TVA on the ground that they lack standing to challenge orders that were not issued, and do not apply, to them. Since these are threshold challenges, we must address them first in order to determine whether we may consider the merits of the petitions before us. We held oral argument to consider preliminarily only these motions and we resolve them here. While a number of EPA's challenges present complex and close questions, ultimately we are not persuaded that we lack jurisdiction to review the orders issued to TVA, nor that the private petitioners lack standing.
At this juncture, we confine ourselves to a brief statement of the facts and procedural history relevant to EPA's challenges to this Court's jurisdiction over the petitions that have been filed in the case. This action concerns a dispute arising under the CAA, 42 U.S.C. §§ 7413, 7477. Since one of the goals of the CAA is to prevent increases in air pollution resulting from modifications made to existing sources of pollutants, such as power plants, under the Act's New Source Performance Standards (NSPS) and New Source Review (NSR) programs, an existing source of pollutants is required to obtain a permit before it makes any such pollution-increasing modifications.2 TVA, a corporate agency and instrumentality of the United States, 16 U.S.C. § 831, owns and operates eleven coal-fired electrical power generating plants. At the heart of this dispute is EPA's contention that in the past two decades TVA undertook fourteen projects at nine of these coal-fired plants without first obtaining the required permits. As noted, TVA argues that its modifications constituted "routine" maintenance, repairs, or replacements that are statutorily exempt from NSPS and NSR regulation.3 It also challenges the method EPA employed to determine whether its projects at the plants in question resulted in emissions increases.
On November 3, 1999, EPA issued an Administrative Compliance Order (ACO) to TVA, pursuant to §§ 113(a) and 167 of the CAA, 42 U.S.C. §§ 7413(a) and 7477 (1999). The ACO contained findings that TVA's "modifications" of several of its operating plants violated certain provisions in the CAA, and did not fall under any regulatory exemptions. The ACO directed TVA to take numerous remedial measures pursuant to the CAA, including (i) proposing a reasonable schedule for obtaining permits and installing pollution controls that allegedly should have been installed when the modifications were constructed, and (ii) providing an audit of its other construction activities to identify any additional unpermitted modifications. The ACO stated that "[f]ailure by TVA to comply with ... [this] order may result in administrative action for appropriate relief including civil penalties, as provided in [§] 113 of the Act, 42 U.S.C. § 7413." At a conference on December 20th and by subsequent letter, TVA notified EPA of its objections to the ACO and indicated its intention to seek review of the Order in this Court if EPA did not withdraw it. TVA filed a petition in this Court for review of the November 3rd ACO, as amended, on May 4th, 2000. Also petitioning for review of the ACO are Alabama Power Company (APC), Duke Energy Corporation (Duke), and the Tennessee Valley Public Power Association (TVPPA).
In response to TVA's earlier request to reconsider the ACO and to withdraw or stay it, the Regional Administrator of the EPA issued a letter on May 4th, 2000 — the same day TVA filed its petition in this Court — granting reconsideration of the ACO, but indicating that the Order, which was to have taken effect on March 6, 2000, would remain in effect during the review process, and expressing the expectation that TVA would comply with its conditions. In its letter, EPA stated that then-Administrator Browner had directed the Environmental Appeals Board (EAB) to conduct reconsideration proceedings and...
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