United States v. Ameren Mo.
| Decision Date | 20 August 2021 |
| Docket Number | No. 19-3220,19-3220 |
| Citation | 9 F.4th 989 |
| Parties | UNITED STATES of America Plaintiff - Appellee Sierra Club Intervenor - Appellee v. AMEREN MISSOURI Defendant - Appellant Chamber of Commerce of the United States of America ; American Chemistry Council ; America's Power; Missouri Chamber of Commerce and Industry; National Association of Manufacturers; National Mining Association Amici on Behalf of Appellant(s) |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who presented argument on behalf of the appellant and appeared on the brief was Ronald S. Safer, of Chicago, IL. The following attorneys also appeared on the appellant brief; Thomas Blumeyer Weaver, of Saint Louis, MO., John Ford Cowling, of Saint Louis, MO., Matthew B. Mock, of Newport Beach, CA., David Clark Scott, of Chicago, IL., Mir Y. Ali, of Chicago, IL.
Counsel who presented argument on behalf of the appellee, United States of America, and appeared on the brief was Jeffrey B. Clark, of Washington, DC. The following attorneys also appeared on the appellee brief; Robert Lundman, of Washington, DC., Brian Toth, of Washington, DC., Elias Leake Quinn, of Washington, DC., Sabrina Argentieri, of Washington, DC., Alexander Chen, of Washington, DC., Sara Hertz Wu, of Washington, DC., Eric Grant, of Washington, DC.
Counsel who presented argument on behalf of the appellee, Sierra Club, and appeared on the brief was Sanjay Narayan, of Oakland, CA. The following attorneys also appeared on the appellee brief; Sunil Bector, of Oakland, CA., Benjamin J. Blustein, of Chicago, IL.
The following attorneys appeared on the amicus brief; Daryl L. Joseffer, of Washington, DC., Makram Bassam Jaber, of Washington, DC., Michael B. Schon, of Washington, DC., F. William Brownell, of Washington, DC.
Before SMITH, Chief Judge, LOKEN and MELLOY, Circuit Judges.
Ameren Missouri ("Ameren") appeals an adverse judgment of the district court in a Clean Air Act (CAA) enforcement action brought by the United States of America, acting at the request of the Administrator of the United States Environmental Protection Agency (EPA) (hereinafter, EPA or "government"). Ameren argues that the district court erroneously found it liable for not obtaining permits for projects at its Rush Island Energy Center ("Rush Island") and, as a result, assessed liability under the applicable federal regulations. In addition, Ameren maintains that the district court ordered legally flawed injunctions at both Rush Island and at a different plant, Labadie Energy Center ("Labadie"). We affirm the district court's liability determination, but we reverse in part the remedial portion of its order concerning the Labadie plant and remand for further proceedings consistent with this opinion.
"Congress enacted the Clean Air Act Amendments of 1970 seeking to guarantee the prompt attainment and maintenance of specified air quality standards." Sierra Club v. Otter Tail Power Co. , 615 F.3d 1008, 1011 (8th Cir. 2010) (quotations omitted). In enacting the CAA amendments, Congress "directed EPA to devise National Ambient Air Quality Standards (NAAQS) limiting various pollutants, which the States were obliged to implement and enforce." Id. (quotation omitted). The New Source Performance Standards (NSPS) program was a key part of the CAA's regulatory scheme. Id. The NSPS program "required EPA to develop technology-based performance standards designed to limit emissions from major new sources of pollution." Id. (quotation omitted). Both newly constructed facilities and modified facilities with increased emissions constitute "[n]ew sources." Id. "It is ‘unlawful for any owner or operator of any new source to operate such source in violation of’ applicable performance standards." Id. (quoting 42 U.S.C. § 7411(e) ).
The NSPS program, however, "did too little to ‘achieve the ambitious goals of the 1970 amendments.’ " Id. (quoting Env't Def. v. Duke Energy Corp. , 549 U.S. 561, 567, 127 S.Ct. 1423, 167 L.Ed.2d 295 (2007) ). "Merely setting emissions limits failed to improve air quality in those areas that had already attained the minimum standards of the NAAQS because polluters had no incentive to diminish emissions below the established limits." Id. As a result, in 1977, Congress amended the CAA "to add the ‘Prevention of Significant Deterioration’ (PSD) program, which seeks to ensure that the ‘air quality floor’ established by the NAAQS does not ‘in effect become a ceiling.’ " Id. (quoting Sierra Club v. Thomas , 828 F.2d 783, 785 (D.C. Cir. 1987) ).
The PSD program limited construction of major emitting facilities with specified preconditions. 42 U.S.C. § 7475(a). "The term ‘construction’ when used in connection with any source or facility, includes the modification ... of any source or facility." Id. § 7479(2)(C) (emphasis added). "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 previously emitted." Id. § 7411(a)(4).
The PSD program prohibits the construction of a major emitting facility unless preconditions are satisfied. One precondition is that the proposed facility obtain a permit setting forth applicable emission limitations. Id. § 7475(a)(1). Another precondition is that "the owner or operator of such facility demonstrates ... that emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of" prescribed air quality standards. Id. § 7475(a)(3). The PSD program also requires the owner or operator to install "the best available control technology for each pollutant subject to regulation ... emitted from, or which results from, [the proposed] facility." Id. § 7475(a)(4). The " ‘best available control technology’ (BACT) .... is not a particular type of technology." Otter Tail , 615 F.3d at 1011 (quoting 42 U.S.C. § 7475(a)(4) ). Instead, the BACT "is an ‘emission limitation based on the maximum degree of reduction of each pollutant subject to regulation ... which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable’ for the facility in question." Id. (alteration in original) (quoting 42 U.S.C. § 7479(3) ).
Only major modifications to emitting sources are subject to PSD review. Ala. Power Co. v. Costle , 636 F.2d 323, 399 (D.C. Cir. 1979). "Major modification means any physical change in or change in the method of operation of a major stationary source that would result in: a significant emissions increase ... of a regulated NSR [New Source Review] pollutant ...; and a significant net emissions increase of that pollutant from the major stationary source." 40 C.F.R. § 52.21(b)(2)(i).
For projects that only involve "existing emissions units," the EPA applies what it calls the actual-to-projected-actual applicability test. Id. § 52.21(a)(2)(iv)(c).1 To apply this test, the "baseline actual emissions" must first be calculated. "Baseline actual emissions means the rate of emissions, in tons per year, of a regulated NSR pollutant ...." Id. § 52.21(b)(48).
Next, the "projected actual emissions" must be calculated by determining the maximum annual rate, in tons per year, at which an existing emissions unit is projected to emit a regulated NSR pollutant in any one of the 5 years (12–month period) following the date the unit resumes regular operation after the project, or in any one of the 10 years following that date, if the project involves increasing the emissions unit's design capacity or its potential to emit that regulated NSR pollutant and full utilization of the unit would result in a significant emissions increase or a significant net emissions increase at the major stationary source.
Id. § 52.21(b)(41)(i). An "owner or operator of the major stationary source ... [must] consider all relevant information" to calculate "the projected actual emissions." Id. § 52.21(b)(41)(ii)(a). "[A]ll relevant information ... include[s] ... historical operational data, the company's own representations, the company's expected business activity and the company's highest projections of business activity, the company's filings with the State or Federal regulatory authorities, and compliance plans under the approved State Implementation Plan ...." Id. But the owner or operator "[s]hall exclude" from the projected actual emissions "that portion of the unit's emissions following the project that an existing unit could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions ... and that are also unrelated to the particular project, including any increased utilization due to product demand growth." Id. § 52.21(b)(41)(ii)(c). The "exclu[sion] [of] increases stemming from unrelated demand growth" is referred to as "the ‘demand growth exclusion.’ " New York v. EPA , 413 F.3d 3, 16 (D.C. Cir. 2005).
Finally, the baseline actual emissions calculation is subtracted from the projected actual emissions calculation to determine if the difference between the numbers is "significant." 40 C.F.R. § 52.21(a)(2)(iv)(c). A table in the regulations sets forth the numeric thresholds that are considered "significant" for each regulated pollutant. Id. § 52.21(b)(23)(i). If the difference in the projected actual emissions and the baseline actual emissions is significant, see id. , then a permit is required before beginning construction on the project. Id. § 52.21(a)(2)(iii).
The actual-to-projected-actual test is distinguishable from "a potential-to-potential test," which "compare[s] past potential emissions with future potential emissions." New York , 413 F.3d at 17. "[T]he plain language of the CAA indicates that Congress intended to apply NSR to changes that increase...
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