June 19, 2019

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.

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