WildEarth Guardians v. U.S. Envtl. Prot. Agency, 12–71523.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation759 F.3d 1064
Docket NumberNo. 12–71523.,12–71523.
PartiesWILDEARTH GUARDIANS, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; Gina McCarthy, in her official capacity as Administrator of the U.S. Environmental Protection Agency, Respondents, Sierra Pacific Power Company; Nevada Power Company; The State of Nevada, Division of Environmental Protection, Respondents–Intervenors.
Decision Date17 July 2014

OPINION TEXT STARTS HERE

Sarah K. McMillan (argued), WildEarth Guardians, Missoula, Montana; James J. Tutchton, WildEarth Guardians, Centennial, Colorado; Melissa A. Hailey, W. Randolph Barnhart, P.C., Denver, Colorado, for Petitioner.

David A. Carson (argued), United States Department of Justice, Environment and Natural Resources Division, Denver, Colorado, for Respondents.

Lisa E. Jones (argued), Samuel B. Boxerman, and James R. Wedeking, Sidley Austin LLP, Washington, D.C.; Thomas Woodworth, NV Energy, Inc., Las Vegas, Nevada, for RespondentsIntervenors Nevada

Power Company and Sierra Pacific Power Company.

Belinda A. Suwe (argued), Carson City, Nevada, for RespondentIntervenor State of Nevada, Department of Conservation and Natural Resources, Division of Environmental Protection.

On Petition for Review of an Order of the Environmental Protection Agency.

Before: M. MARGARET McKEOWN and MILAN D. SMITH, JR., Circuit Judges, and JAMES L. ROBART, District Judge.**

OPINION

M. SMITH, Circuit Judge:

WildEarth Guardians (WildEarth), a non-profit environmental organization, petitions for review of the Environmental Protection Agency's (EPA) approval of the State of Nevada's State Implementation Plan (SIP) for regional haze under the Clean Air Act, 42 U.S.C. §§ 7401–7671q (CAA). According to WildEarth, Nevada's SIP is inadequate, and the EPA's decision to approve it was arbitrary and capricious. WildEarth thus contends that the EPA should have instead developed its own Federal Implementation Plan (FIP) under the CAA.

We conclude that WildEarth lacks Article III standing to challenge the EPA's approval of the SIP's formulation of reasonable progress goals for improving visibility conditions in the Jarbridge Wilderness Area in northeastern Nevada. While WildEarth has standing to challenge the EPA's decision to approve Nevada's Sulfur Dioxide (SO2) Best Available Retrofit Technology (BART) determination for the Reid Gardner Generating Station (Reid Gardner) in southern Nevada, we hold that the EPA's decision was not arbitrary and capricious. We further conclude that the EPA's approval of Nevada's SIP did not violate any requirements imposed by 42 U.S.C. § 7410( l ). Accordingly, we dismiss the petition for review in part and deny the petition in part.

LEGAL, FACTUAL, AND PROCEDURAL BACKGROUND

This petition for review concerns states' duty under the CAA to develop plans aimed at improving visibility in “mandatory Class I Federal areas,” such as national wilderness areas and certain national parks, 40 C.F.R. § 51.308, and the EPA's concomitant duty to ensure that such plans are legally adequate.

I. Statutory and Regulatory Framework

In 1977, Congress enacted Section 169A of the CAA, which established “as a national goal the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory [C]lass I Federal areas which impairment results from manmade air pollution.” 42 U.S.C. § 7491(a)(1).

A. Implementation Plans

Under the CAA, the EPA must establish national ambient air quality standards (NAAQS) for certain air pollutants. The EPA must also promulgate regulations designed to prevent the impairment of visibility in “mandatory [C]lass I Federal areas,” including national wilderness areas and certain national parks. 42 U.S.C. §§ 7491(a)-(b), 7492(e). To ensure that these standards are met, the CAA requires each state to submit a SIP to the EPA, which must “contain such emission limits, schedules of compliance, and other measuresas may be necessary to carry out” the EPA's applicable regulations. Id. § 7492(e)(2).

Once a state has submitted its SIP to the EPA, the EPA reviews it for compliance with the CAA. Id. § 7410(k)(3). If a state fails to submit a SIP, or if the EPA concludes that a SIP is inadequate, then the EPA must promulgate a FIP within two years. Id. § 7410(c).

B. Regional Haze Provisions

As noted above, Congress amended the CAA in 1977 and “declare[d] as a national goal the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory [C]lass I Federal areas which impairment results from manmade air pollution.” Id. § 7491(a)(1). To this end, Congress required the EPA to issue regulations assuring “reasonable progress toward meeting the national goal.” Id. § 7491(a)(4).

Acting under this statutory authority, the EPA promulgated the Regional Haze Rule in 1999. Regional Haze Regulations, 64 Fed.Reg. 35714 (July 1, 1999). This rule required states to submit regional haze SIPs to the EPA by December 17, 2007. It also requires states to submit SIP revisions to the EPA by July 31, 2018, and every ten years thereafter. 40 C.F.R. § 51.308(f).

1. Reasonable Progress Goals

The Regional Haze Rule directs states to establish reasonable progress goals aimed at achieving natural visibility conditions in Class I Federal areas. 40 C.F.R. § 51.308(d)(1). These goals must provide for an improvement in visibility for the days in which visibility is most impaired over the period ending on July 31, 2018 (worst days), and must also ensure no worsening of visibility during the least impaired days over the course of that period (best days). Id.

2. BART

In addition to requiring states to establish reasonable progress goals for improving visibility in Class I Federal areas, the Regional Haze Rule requires SIPs to “contain[ ] emission limitations representing BART ... for each BART-eligible source that may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandatory Class I Federal area.” 40 C.F.R. § 51.308(e). As defined in the regulations, BART is “an emission limitation based on the degree of reduction achievable through the application of the best system of continuous emission reduction for each pollutant which is emitted by an existing stationary facility.” Id. § 51.301.

Under the regulations, a pollution source is “BART-eligible” only if it “has the potential to emit 250 tons per year or more of any air pollutant.” Id. States must formulate emission limitations for such sources on a case-by-case basis, weighing the following five factors: (1) “the costs of compliance”; (2) “the energy and non[-]air quality environmental impacts of compliance”; (3) “any existing pollution control technology in use at the source”; (4) “the remaining useful life of the source”; and (5) “the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.” 42 U.S.C. § 7491(g)(2); Regional Haze Regulations and Guidelines for BART Determinations, 70 Fed.Reg. 39104, 39106–07 (July 6, 2005) (codified at 40 C.F.R. pt. 51, App. Y).

To assist states in evaluating which pollution sources are subject to BART, and what emission limitation to set for such sources, the EPA issued the BART Guidelines (Guidelines) in 2005. 70 Fed.Reg. at 39156–72. The Guidelines provide states with a five-step process for making their case-by-case BART determinations. These five steps subsume the five statutory factors listed above. Id. at 39127. First, states identify all available retrofit control technologies. Second, states eliminate technically infeasible options. Third, states evaluate the effectiveness of the remaining control technologies. Fourth, states evaluate the impacts, including the cost of compliance, the energy impacts, any non-air quality impacts, and the remaining useful life of the facility. Finally, states evaluate the visibility impacts. Id. at 39164, 39166.

States must use the Guidelines when making BART determinations for fossil fuel-fired power plants with a total generating capacity greater than 750 megawatts, but the Guidelines are merely advisory for smaller plants. 42 U.S.C. § 7491(b)(2)(B); 40 C.F.R. § 51.308(e)(1)(ii)(B). The BART-eligible power plant at issue here—Reid Gardner—has a generating capacity below 750 megawatts, and so is not subject to the mandatory Guidelines. Approval and Promulgation of Air Quality Implementation Plans, 76 Fed.Reg. 36450, 36463 (June 22, 2011). Nonetheless, Nevada relied on the Guidelines in making its SO2 BART determination for Reid Gardner.

II. Factual and Procedural Background

Nevada submitted its regional haze SIP to the EPA in October 2009, nearly two years after the deadline for doing so. In its SIP, Nevada provides what it considers to be reasonable progress goals for attaining natural visibility conditions at the Jarbridge Wilderness Area in remote northeastern Nevada, the state's only Class I Federal area. The SIP further requires limitations on emissions of sulfur dioxide, nitrogen oxides (NOx), and particulate matter for several pollution sources, including Reid Gardner, a coalfired power plant in southern Nevada.

In June 2011, the EPA proposed to approve Nevada's regional haze SIP. 76 Fed.Reg. at 36450–51. WildEarth then submitted public comments to the EPA, asserting, inter alia, that (1) Nevada's SO2 BART determination for Reid Gardner is inadequate; (2) Nevada ignored certain mandatory factors in setting reasonable progress goals for improving visibility at the Jarbridge Wilderness Area; and (3) the EPA failed to ensure that approving the SIP would not interfere with the attainment or maintenance of the NAAQS.

Notwithstanding WildEarth's concerns, the EPA approved the majority of Nevada's regional haze SIP on March 26, 2012.1Approval and Promulgation of Air Quality Implementation Plans, 77 Fed.Reg. 17334 (Mar. 26, 2012). WildEarth then timely filed this petition for review, challenging the EPA's approval of Nevada's...

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