May 26, 2019

Tenth Circuit: Fish & Wildlife Service Appropriately Evaluated Environmental Impact of Rocky Flats Transportation Improvement

The Tenth Circuit Court of Appeals issued its opinion in WildEarth Guardians v. United States Fish & Wildlife Service on Friday, April 17, 2015.

WildEarth Guardians, Rocky Mountain Wild, and the Town of Superior (Appellants) challenged the authority of the U.S. Fish & Wildlife Service (FWS) to construct a parkway through the former Rocky Flats nuclear facility. Rocky Flats was formerly used to manufacture nuclear weapons, and since 1989 the Department of Energy (DOE) has been tasked with a cleanup effort to remediate the land. Under the Rocky Flats Act, Congress designated authority to the DOE to manage the central area of the Flats, which was contaminated by plutonium and other hazardous materials, and transferred the remainder of the land to the FWS to become a National Wildlife Refuge. The Rocky Flats Act further provided the DOE would transfer the remainder of the land to the FWS as soon as the cleanup was complete, and set aside a large parcel of land at the Flats’ border to be used for transportation improvements (specifically, the parkway).

The DOE transferred the remaining land to the FWS in 2007, and the FWS began considering applications for the transportation project jointly with the DOE. Prior to final approval of the land exchange and construction project, the FWS issued two opinions regarding the potential consequences to the Preble’s Meadow Jumping Mouse, a threatened species with a critical habitat in the corridor. The FWS also issued an environmental assessment pursuant to its duties under the National Environmental Policy Act (NEPA). Appellants sued in district court, arguing the FWS violated the Rocky Flats Act, the NEPA, and the Endangered Species Act. The district court rejected all three claims, and Appellants timely appealed.

The Tenth Circuit considered the appeal under the Administrative Procedures Act, evaluating only whether the FWS’s actions were arbitrary and capricious. The Tenth Circuit first addressed Appellants’ argument that the FWS lacked authority to convey the land under the Rocky Flats Act. Applying the Chevron test, the Tenth Circuit found that Congress did not directly discuss whether the FWS could convey the corridor, but by effectuating the intent of Congress and taking the statutory language in context, the Tenth Circuit determined that it was reasonable to assume Congress intended the FWS to convey the corridor for transportation purposes if it had not already been conveyed by DOE. The FWS further asserted it had authority to convey the land under the Refuge Act and Fish and Wildlife Act, and the Tenth Circuit agreed. The Tenth Circuit rejected Appellants’ argument that a catch-all clause in the Rocky Flats Act was meant only to refer to the transportation conveyance, finding that the conveyance was discussed in detail in other parts of the Act, and “Congress knew how to write ‘transportation improvements'” but did not do so in the catch-all clause.

The Tenth Circuit turned next to Appellants’ arguments that the FWS violated NEPA, specifically with respect to contaminated soils, air pollution, and the protected mouse. Appellants argued the FWS erred by issuing an environmental assessment and finding of no significant impact instead of the more formal and detailed Environmental Impact Statement (EIS). Addressing the soil contaminants, particularly plutonium, the FWS relied on a 2006 EPA certification that the soil conditions were acceptable for unlimited use and unlimited exposure. Although Appellants argued the construction workers would be at greater risk for plutonium exposure, the FWS asserted that a 2011 letter from the EPA sufficiently addressed the risk faced by construction workers. The Tenth Circuit found no impropriety in the FWS’s reliance on the certification and letter and found no NEPA violation regarding the contaminated soils. The Tenth Circuit similarly dismissed Appellants’ contention of a NEPA violation regarding air pollution. Appellants argued the FWS failed to consider 2008 air quality standards when contemplating the transportation improvement. However, the FWS’s action occurred in 2006, and the Tenth Circuit found it unreasonable to expect the FWS to comply with an act that was not yet in existence. Finally, as to the protected mouse, the Tenth Circuit found support for the FWS action because the FWS considered the mouse habitat and found it would not be significantly affected by the transportation improvement. The Tenth Circuit noted the FWS appropriately issued an incidental take statement regarding the mouse.

The Tenth Circuit affirmed the district court’s rejection of Appellants’ claims. Appellants had requested leave to file a supplemental appendix, which the Tenth Circuit denied, and it also denied the FWS’s request to file supplemental rebuttal appendix documents as moot.

Tenth Circuit: No Arbitrariness or Caprice in EPA’s Adoption of Better-Than-BART Emission Regulations

The Tenth Circuit Court of Appeals issued its opinion in WildEarth Guardians v. United States Environmental Protection Agency on Tuesday, October 21, 2014.

In an attempt to comply with the Clean Air Act, New Mexico, Wyoming, Utah, the City of Albuquerque, and Bernalillo County, NM (collectively, states), adopted a regional cap-and-trade program to regulate sulfur-dioxide emissions over the Colorado Plateau. In this program, the states had to comply with ceilings on sulfur-dioxide emissions. If their emissions were above the ceiling, they were fined, but if they fell below the ceiling, the states could trade the difference to other entities. The states chose this program over the alternative Best Available Retrofit Technology (BART) program to reduce emissions. The cap-and-trade program had to be better than BART to be acceptable.

WildEarth Guardians and other environmental groups (collectively, WildEarth) protested the adoption of the cap-and-trade program, arguing the EPA should not have approved the cap-and-trade program for various reasons. The Tenth Circuit reviewed the appeal, but its review was bound by the Administrative Procedure Act, and the EPA’s decision could only be overturned by a showing that its action was arbitrary or capricious.

WildEarth argued that the cap-and-trade program, also known as the 309 program, does not achieve greater reasonable progress than implementation of BART. WildEarth contended the EPA acted arbitrarily and capriciously because the BART benchmark improperly adopted the permissive emission cap instead of actual emissions, the states misapplied the “clear weight of the evidence” standard, and the states overstated the effectiveness of the 309 program by applying qualitative instead of quantitative standards. The Tenth Circuit rejected these arguments.

First addressing the argument about the EPA’s reliance on permissive emission caps instead of actual data, the Tenth Circuit noted that the EPA’s own rules allowed reliance on the cap, and also the data concerning actual emissions was not available until the end of the period in which the emissions were studied. The source-by-source study was not required under the 309 program’s better-than-BART standard. Although there was potential for the states to trade emission amounts that they were not actually using, this was permissible under the 309 program.

Next, the Tenth Circuit addressed WildEarth’s argument that the EPA should have compared the 309 program’s milestones to the effectiveness of BART. The Tenth Circuit refused to address this argument because it was not raised in WildEarth’s opening brief, and was raised for the first time on appeal.

The Tenth Circuit then turned its attention to the qualitative versus quantitative argument, and found no caprice or arbitrariness in the EPA’s actions. The EPA determined the 309 program as a whole was more effective than BART because it included non-BART sources of sulfur-dioxide emissions, included new sources of emissions, created a “mass based” cap covering emissions in the aggregate, and encouraged early reductions in emissions. WildEarth argued that the actual pollution would not be reduced, and could even be increased, by the failure of key polluters to agree to the 309 program, the ability of the states to trade their unused emission allotments, and the failure to consider quantitative standards. Although the Tenth Circuit was sympathetic to WildEarth’s arguments, it could find no reason to overturn the EPA’s decision.

The Tenth Circuit denied the petitions for review because it could find no arbitrariness or caprice in the decisions of the EPA.

Tenth Circuit: Forest Service’s Management Plans Did Not Violate National Forest Management Act or Environmental Protection Act

The Tenth Circuit Court of Appeals issued its opinion in Biodiversity Conservation Alliance v. Jiron on Tuesday, August 5, 2014.

Biodiversity sued the U.S. Forest Service in two separate cases involving Forest Service actions in the Black Hills National Forest. In the first case, filed in the U.S. District Court for the District of Wyoming, Biodiversity claimed the Forest Service failed to comply with various statutes and regulations. The district court denied Biodiversity’s petition for review. In the second case, filed in the U.S. District Court for the District of Colorado, Biodiversity argued the Forest Service had violated a settlement agreement and moved for relief. The district court dismissed Biodiversity’s motion. Biodiversity appealed both rulings and the cases were consolidated for appellate review.

In 1976, the National Forest Management Act (NFMA) took effect, and the Forest Service created a plan under which it managed the Black Hills National Forest. In 1992, the Forest Service decided to revise the plan, and in 1997 it issued its revised forest plan. Biodiversity challenged the 1997 plan in an administrative proceeding, and its appeal was decided by the Chief of the Forest Service in 1999. The Chief determined that although most of the plan complied with the NFMA and the National Environmental Protection Act (NEPA), there were some shortcomings, which the Chief described specifically in his ruling.

Before the Chief issued his 1999 ruling, the Forest Service began implementing its 1997 forest plan. Biodiversity administratively challenged some aspects of the plan, and eventually Biodiversity and the Forest Service entered into a settlement agreement. The settlement agreement included Phase I and Phase II plans for implementation, and the Colorado federal district court retained jurisdiction to enforce the settlement agreement. Phase I was implemented in 2001, and the Forest Service incorporated some of the Chief’s recommendations from the 1999 ruling. From 2001 through 2005, the Forest Service conducted a more detailed analysis of the Black Hills National Forest in preparation for the Phase II amendment. Also during this time, several wildfires ravaged the forest, and a mountain pine beetle infestation spread from 5,200 acres to 100,000 acres. As a result, the Phase II amendment was adjusted to address fire and insect issues.

The Forest Service considered six alternatives to implement the 1997 plan, and ultimately chose the sixth alternative even though some species would be adversely affected because the sixth plan would reduce wildfire risks and reduce the pine beetle infestation. In October 2005, the Forest Service began implementing Alternative 6 as the Phase II amendment. In 2006, Biodiversity challenged the Phase II amendment, but the Chief upheld it. In separate administrative cases, Biodiversity also challenged nine specific projects implemented as part of the Phase II amendment. The Chief denied all nine challenges, upholding the last in January 2011.

Biodiversity filed suit in Wyoming federal district court in October 2011, petitioning for agency review under the Administrative Procedures Act. In November 2012, the Wyoming court upheld the Forest Service’s action, and it denied a motion for reconsideration in April 2013. Biodiversity timely appealed.

Meanwhile, the Beaver Park litigation initiated by Biodiversity in 1999 lay dormant. After its defeat in Wyoming, Biodiversity attempted in May 2013 to reopen the Colorado case. The district court denied its motion, determining that laches barred enforcement of Biodiversity’s rights under the settlement agreement. Biodiversity timely appealed this ruling also, and the appeals were consolidated for Tenth Circuit review.

The Tenth Circuit reviewed Biodiversity’s challenges as final agency actions under the Administrative Procedures Act. Both parties agreed that each of Biodiversity’s plaintiffs established Article III standing. Biodiversity pursued review under 5 U.S.C. § 706(2)(A), arguing that the agency action was arbitrary and capricious. Biodiversity asserted violations of the NFMA and the NEPA.

The Tenth Circuit conducted a detailed analysis of each implicated section of the NFMA and NEPA. Where sections were ambiguous, the Tenth Circuit deferred to the Forest Service’s interpretation unless that interpretation was manifestly unreasonable. Regarding the population data requirement, the Tenth Circuit found that the regulation was ambiguous, and although Biodiversity raised a competing interpretation, deference was due to the Forest Service because its resolution of the ambiguity was reasonable. Regarding the Forest Service’s species viability analyses generally, Biodiversity argued that the Phase II amendment failed to ensure species viability for the Northern Goshawk, snag-dependent species, and sensitive plants. The Forest Service examined these particular species and adopted a different approach than that proposed by Biodiversity. Biodiversity failed to explain why its analysis was preferential to the Forest Service’s, however, so the Tenth Circuit deferred to the Forest Service’s scientific analyses.

Biodiversity argued the Phase II amendment failed to provide heightened protections for Research Natural Areas (RNAs) and Botanical Areas. Specifically, it alleged the Forest Service allowed livestock to graze on RNAs without specific management plans in place. However, there are no timelines for implementation of RNA management plans, and the Forest Service developed a plan as part of the 2005 Phase II implementation. Biodiversity failed to show that the Forest Service’s delay was unreasonable. As for the Botanical Areas, the Forest Service addressed these in its 1997 plan. Although Biodiversity argued the Forest Service failed to adequately monitor the well-being of the Botanical Areas, the Tenth Circuit’s APA review is narrow and examines only if the Forest Service had a rational explanation, which the Tenth Circuit found it did.

Biodiversity argued that the Forest Service failed to conduct a proper suitability and capability analysis for livestock grazing. The Tenth Circuit found no reason to conclude the Forest Service’s analysis was unreasonable, erroneous, or inconsistent with the regulation.

Biodiversity also argued that the Forest Service violated NEPA because it failed to consider no grazing alternatives in its Phase II amendment, it failed to take a “hard look” at how the amendment would affect sedimentation in Black Hills waterways, and it failed to take a “hard look” at historical grazing practices before authorizing grazing. The Tenth Circuit found no error in the Forest Service’s actions, finding instead that the Forest Service considered two no grazing alternatives, it contemplated sedimentation using Biodiversity’s proposed resources, and the Forest Service considered past grazing practices in determining that Alternative 6 was the best way to implement Phase II.

Turning to the Colorado claim, the Tenth Circuit agreed with the district court that the doctrine of laches barred Biodiversity’s assertion of the breach of settlement agreement claims. Biodiversity waited 6 1/2 years to file its suit alleging breach of the agreement, and that delay was unreasonable. The district court ruled the delay prejudiced the Forest Service, and the Tenth Circuit found no reason to disturb those findings.

The Tenth Circuit affirmed the Wyoming court’s denial of Biodiversity’s petition to review under the APA and affirmed the Colorado court’s dismissal of Biodiversity’s action to enforce the settlement agreement.

Tenth Circuit: EPA Had Authority to Review and Reject Oklahoma’s BART Determination Under Clean Air Act

The Tenth Circuit Court of Appeals published its opinion in State of Oklahoma v. United States Environmental Protection Agency on Friday, July 19, 2013.

Under the Clean Air Act (CAA), the Environmental Protection Agency (EPA) must create and review national ambient air quality standards for certain pollutants. States then have the responsibility to adopt state implementation plans (SIPs), which provide for implementation, maintenance, and enforcement of those primary and secondary air quality standards.

States, however, exercise this authority with federal oversight. The EPA reviews all SIPs to ensure that the plans comply with the statute. The EPA may not approve any plan that would interfere with any  requirement of the Clean Air Act.

At issue in this case were the portions of the CAA that seek to protect visibility at certain national parks and wildlife areas. A state—or the EPA, when promulgating a FIP—must: 1) determine which eligible sources in their state contribute to visibility impairment; and then 2) determine the “best available retrofit technology” (BART) for controlling the emissions causing that impairment at that source.

In 2005, the EPA issued an updated version of its Regional Haze Rule that required states to submit SIP revisions by December 17, 2007. On January 15, 2009, the EPA took final action in finding that Oklahoma failed to submit a SIP that addressed any of the Regional Haze elements by this deadline. This triggered the EPA’s duty to promulgate a federal implementation plan within two years. Before the EPA promulgated a FIP, however, Oklahoma submitted its SIP. After notice and comment, the EPA published the final rule enacting emissions limits. On February 24, 2012, the State of Oklahoma and the Oklahoma Industrial Energy Consumers filed in this court a petition seeking review of the EPA’s final rule.

In these consolidated petitions for review, petitioners challenged the final rule promulgated by the EPA. The petitioners argued that the EPA impermissibly rejected Oklahoma’s plan to limit the emissions of sulfur dioxide at Oklahoma Gas and Electric Company power plants and replaced it with its own more stringent regulations, which petitioners contended usurped the state’s authority and required sizable expenditures on unnecessary technology.

The Tenth Circuit agreed with the EPA that the statute provided the agency with the power to review Oklahoma’s BART determinations. The EPA rejected Oklahoma’s SIP because the BART determinations failed to comply with the required guidelines. The statute and the legislative history supported the Court’s conclusion that the EPA could reject BART determinations that do not comply with the guidelines. States have the ability to create SIPs, but they are subject to EPA review.  The Tenth Circuit therefore held that the EPA had authority to review the state’s BART plan.

The Tenth Circuit then had to determine whether the EPA lawfully exercised that authority when it rejected Oklahoma’s SIP. Petitioners argued that the EPA took arbitrary and capricious action in rejecting two sets of cost estimates they used in determining BART. In following the standards of the Administrative Procedure Act (APA) in reviewing the EPA’s actions under the CAA, the Tenth Circuit held that the EPA lawfully exercised its authority in rejecting Oklahoma’s SIP and promulgating its own. The EPA considered the relevant data and rationally explained its decision. The Court found petitioners’ arguments to be without merit.

Petitioners further challenged many decisions made by the EPA in promulgating the FIP. The Court reviewed these challenges under the same arbitrary and capricious standard it used to evaluate the EPA’s rejection of the SIP and rejected all of the petitioners’ arguments.

In addition to these arguments concerning the EPA’s substantive analysis, the petitioners raised a number of challenges to the procedures the EPA used in promulgating the rule. The CAA creates a high bar for any petitioner challenging an EPA action on procedural grounds. The petitioner must prove: 1) that the failure to observe the procedure was arbitrary and capricious; 2) that the objection was raised with reasonable specificity during the period for public comment; and 3) that the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made. The Tenth Circuit did not agree that the EPA’s actions violated the procedural requirements of the Clean Air Act.

In summary, the Tenth Circuit held that the EPA had the authority to review Oklahoma’s BART determinations. Moreover, it exercised that authority properly. Accordingly, the Court denied the petition for review of the EPA’s final rule.  The stay pending hearing by the merits panel was lifted.