August 19, 2019

Archives for July 25, 2013

Tenth Circuit: EPA Did Not Act Arbitrarily or Capriciously in Denying Petition for Objection to Permit Issued to Coal-Fired Power Station

The Tenth Circuit Court of Appeals published its opinion in Wildearth Guardians v. United States Environmental Protection Agency on Tuesday, July 23, 2013.

Petitioner Wildearth Guardians sought review of an order of the Environmental Protection Agency denying in part Petitioner’s petition for an objection to an operating permit issued by the Colorado Department of Public Health and Environment (CDPHE) to Intervenor Public Service Company of Colorado for its coal-fired power station located in Colorado. In its petition for an objection, Petitioner argued that the permit needed to include a plan to bring the power station into compliance with the Clean Air Act’s Prevention of Significant Deterioration (PSD) requirements. Petitioner contended these PSD requirements, which apply to the construction or “major modification” of a stationary source of air pollution had been triggered when the station underwent major modifications. For support, Petitioner relied in part on a Notice of Violation (NOV) issued to Intervenor by the EPA in 2002. However, the EPA denied Petitioner’s petition for an objection, holding that the NOV was insufficient to demonstrate noncompliance with the Clean Air Act and that Petitioner’s additional evidence also failed to demonstrate a violation. Petitioner sought review of the EPA’s denial of the petition.

The Tenth’s Circuit’s review of the EPA’s order is governed by the Administrative Procedure Act, and the court accordingly will not set aside the agency’s decision unless it is procedurally defective, arbitrary or capricious, or manifestly contrary to statute.

The EPA must issue an objection if a petitioner demonstrates that the permit is not in compliance with the requirements of the Clean Air Act. A central dispute in this case was the question of what was required for the petitioner to “demonstrate” noncompliance. To resolve the dispute, the court had to first consider whether the agency’s interpretation of this requirement was entitled to any deference.

To the extent a statute speaks clearly to a question at issue, the court must give effect to the unambiguously expressed intent of Congress. If, however, a statute is silent or ambiguous with respect to an issue, the agency’s interpretation of the statute is entitled to some degree of deference. Indeed, the statute at issue does not resolve the questions that are part and parcel of the Administrator’s duty to evaluate the sufficiency of this petition: the type of evidence a petitioner may present and the burden of proof guiding the Administrator’s evaluation of when a sufficient demonstration of noncompliance has occurred. The statutory silence suggests that Congress delegated to the EPA some discretion in determining whether a petitioner has presented sufficient evidence to prove a permit violates clean air requirements, and thus the court concluded some level of deference was warranted.

Viewing the record as a whole, the Tenth Circuit was not persuaded that the EPA acted arbitrarily or capriciously in holding that Plaintiff had not demonstrated noncompliance. Thus, under its deferential standard of review, the court AFFIRMED the EPA’s denial of the petition on this ground.

Tenth Circuit: BLM’s Decision to Grant Grazing Permit Not Arbitrary and Capricious

The Tenth Circuit Court of Appeals published its opinion in Western Watersheds Project v. Bureau of Land Management on Tuesday, July 23, 2013.

Petitioner-Appellant Western Watersheds Project (“WWP”), a nonprofit public interest organization, challenged a Bureau of Land Management (“BLM”) decision to grant a 10-year grazing permit to LHS Split Rock Ranch, LLC (“Split Rock”) for four federal public land allotments in central Wyoming (“the Split Rock allotments”). Split Rock is a Delaware limited liability company that operates a ranch in central Wyoming. WWP asserted that BLM’s decision to grant the grazing permit was arbitrary and capricious because BLM had previously concluded that past grazing was a substantial cause of serious environmental degradation on the Split Rock allotments. The district court had granted summary judgment in favor of BLM and WWP appealed. Split Rock responded as Intervenor-Appellee.

The Tenth Circuit’s standard of review under the APA had to be very deferential. A presumption of validity attaches to agency action and the burden of proof rested with WWP.

WWP raised two issues on appeal. First, it argued that the Environmental Assessment (EA) failed to evaluate a reasonable range of alternatives as required under the National Environmental Policy Act (NEPA). Second, it argues that BLM failed to take the required “hard look” at the potential environmental consequences of its actions. After discussing each of these issues, the Tenth Circuit concluded that BLM’s decision was not arbitrary and capricious.

The Tenth Circuit noted that WWP raised serious questions about BLM’s decisions regarding the Split Rock grazing permit that made the case difficult even under the highly deferential review standard. The record revealed troubling problems with the Split Rock allotments, and even BLM implicitly acknowledged that its Proposed Decision was unlikely to remedy these problems quickly. Nevertheless, it was not within the Court’s authority to resolve whether BLM selected the best or wisest option, and Court could not substitute its judgment for that of the BLM.

WWP argued that the (EA) failed to evaluate a reasonable range of alternatives as required by NEPA because it analyzed only three alternatives. WWP pointed to two problems: failure to analyze the No Action alternative and failure to consider an aggressive, i.e., environmentally protective, alternative. WWP argued that BLM was required to include a detailed analysis of the No Action alternative under 40 C.F.R. § 1502.14. The problem was that § 1502.14 did not apply. Further, the Court found BLM’s effort to balance competing objectives sufficient to explain its failure to pursue aggressive environmentally protective alternatives. The Court could therefore not conclude that the range of alternatives BLM selected rendered the EA arbitrary and capricious.

Next WWP argued that the EA failed to take a “hard look” at the environmental consequences of its Proposed Decision as required by NEPA. Specifically, WWP argued that the EA failed to take a hard look at carrying capacity (maximum stocking rate possible without inducing damage to vegetation or related resources) and at the effects of its own Proposed Decision. Mindful that its deference is most pronounced with respect to technical or scientific matters within the agency’s area of expertise, the Tenth Circuit could not say that it was arbitrary and capricious for BLM to conclude that the stocking level in the Proposed Decision would not exceed carrying capacity. The Court’s review of the EA and the Proposed Decision indicated that BLM analyzed the various components of the plan sufficiently to meet NEPA’s hard look requirement and did not act arbitrarily or capriciously.


Tenth Circuit: Unpublished Opinions, 7/24/13

On Wednesday, July 24, 2013, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

United States v. Morones

Arbuckle v. United States

Ayala v. Hatch

McMullin v. Bravo

United States v. Claycomb

United States v. Tena-Arana

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Announcement Sheet, 7/25/2013

On Thursday, July 25, 2013, the Colorado Court of Appeals issued no published opinions and 43 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.