The Tenth Circuit Court of Appeals issued its opinion in WildEarth Guardians v. United States Environmental Protection Agency on Wednesday, July 23, 2014.
Arizona Public Service Company operates a 5-unit power plant located on a Navajo reservation near Farmington, New Mexico. The plant is within 300 km of several federal Class I areas, including the Grand Canyon, Arches National Park, and Mesa Verde, and the air quality is reduced in all nearby Class I areas as a result of the plant. In 2009, the Environmental Protection Agency (EPA) began the rulemaking process to establish a final Federal Implementation Plan (FIP) to reduce haze by regulating emissions at the plant, and eventually released a proposal to regulate emissions. Arizona Public Service Company submitted an alternate proposal, in which it would close three of the plant’s units and install new selective catalytic-reduction technology on the remaining two units. The EPA found that this plan would significantly reduce emissions, and submitted the plan for comments after making some modifications. In 2012, the EPA adopted the FIP, offering two alternatives for reducing emissions: the first alternative was the original FIP and the second alternative was the modified FIP contemplating closure of three units at the plant.
During the comment period for the original FIP, the EPA received comments from the New Mexico Attorney General asserting that the plant’s mercury and selenium emissions were harming two local endangered fish species, and the EPA was required to consult on the effects of the rulemaking on the endangered species. After submitting its alternate plan, the EPA received comments from WildEarth Guardians and other environmental groups to the same effect as those of the New Mexico Attorney General. The EPA did not address the comments until after the FIP’s promulgation, at which time it responded that it disagreed with the commenters that the proposed FIP would affect the two endangered fish species and it had no duty to consult under the Endangered Species Act. The EPA further noted that closing the three units under the second alternative would reduce mercury and selenium emissions, and that the purpose of developing the FIP was to reduce visible emissions in federal Class I areas; mercury and selenium emissions do not affect visibility.
After the FIP’s promulgation, WildEarth Guardians filed a petition under 42 U.S.C. § 7607(b)(1) for review of the FIP, arguing that the EPA failed to consult with the Fish & Wildlife Service about protecting endangered fish even though it had discretion to do so. WildEarth suggested four grounds for the EPA’s exercise of discretion that could have benefited the fish: (1) requiring emissions filtering devices on the three subsequently closed units; (2) requiring Arizona Public Service Company to act sooner with regards to the remaining two units; (3) regulating sulfur dioxide emissions from the plant, which would have the collateral effect of reducing mercury and selenium emissions; or (4) directly regulating mercury and selenium emissions. The EPA and Arizona countered that the EPA had no duty to consult and no discretionary authority. The Tenth Circuit addressed WildEarth’s four suggestions in turn.
As to the first contention, the Tenth Circuit noted that it was moot, as Arizona Public Service Company closed those three units. The second suggestion was raised by WildEarth in a postbriefing letter to the court submitted under Fed. R. App. P. 28(j), but the argument was not made in WildEarth’s opening brief and was not reviewed by the Tenth Circuit. Likewise, the third suggestion was also raised in a 28(j) letter, not in the opening brief, so appellate review was denied as untimely. Prior to addressing the merits of WildEarth’s fourth argument, the Tenth Circuit evaluated its jurisdiction and found that WildEarth had Article III standing.
The Tenth Circuit then turned to the merits of WildEarth’s argument that the EPA had the duty to consult because the EPA had discretion to regulate mercury and selenium directly in the FIP. Although the Tenth Circuit doubted the EPA’s ability to regulate the emissions in the FIP, it ruled that the EPA’s “action” did not encompass the possibility of direct regulation and the subject matter of the duty to consult is bound by the agency’s action. The Tenth Circuit explained that consultation is required to ensure that the action does not jeopardize endangered species, and the request to consult does not encompass all things an agency might do but only what it is actually doing. In another case regarding the same plant, the Tenth Circuit commented that requiring the EPA to consider every possible environmental measure would impede implementation of the measures at hand, and some regulation is better than none at all.
WildEarth’s petition to review was denied.