July 22, 2019

Tenth Circuit: Requiring EPA to Consider All Possible Environmental Issues Would Impede Implementation of Issues at Hand

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.

Tenth Circuit: Untimely Filed Petition Not Reviewable Due to Lack of Jurisdiction

The Tenth Circuit Court of Appeals issued its opinion in State of Utah v. Environmental Protection Agency on Tuesday, May 6, 2014.

Under the federal Clean Air Act, states are required to adopt programs that will reduce visibility-affecting air pollution emissions. The State of Utah submitted such a plan to the Environmental Protection Agency, but the agency partially rejected the state’s plan. The state and one of the affected companies, PacifiCorp, filed petitions for review. The parties all agreed that the Tenth Circuit had jurisdiction, but the Tenth Circuit disagreed.

The Clean Air Act requires an aggrieved party to file a petition to review within 60 days of the date on which the EPA’s action appears on the Federal Register. The agency’s rejection of the Utah plan appeared in the Federal Register on December 14, 2012, and Utah and PacifiCorp waited until March 21 and 22, 2013, to file petitions for review. The parties submitted four arguments to advance their cause that the petition was timely: (1) The 60-day deadline does not apply to grounds arising after the 60th day; (2) the EPA changed the promulgation date when it identified the deadline as March 23, 2013; (3) Filing after the 60th day is allowed under the “reopener doctrine”; and (4) denial of jurisdiction would be inequitable. The Tenth Circuit rejected each argument in turn.

As to the first argument, the Tenth Circuit noted that the exception does not apply because the “grounds” for the petitions lie in the EPA action published on December 14, 2012. For the second point, the EPA had neglected to include a statement regarding the parties’ 60-day deadline in its original rejection, so it stated on January 22, 2013, that aggrieved parties would have until March 25, 2013, to file a petition for review. The parties relied on this statement in error; the plain language of the EPA regulations required the EPA to explicitly change the promulgation date in the Federal Register, which it did not do. The Tenth Circuit declined to adopt the “reopener doctrine” and noted that the doctrine was inapplicable anyway. As to the fourth argument, the Tenth Circuit agreed that an inequity was created by the jurisdictional bar, but did not expand its jurisdiction to include hardships despite the inequity.

The petitions were dismissed for lack of jurisdiction.

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.