Alaska Wilderness League v. United States Environmental Protection Agency
727 F.3d 934
9th Cir.2013Background
- Shell sought and received consolidated Title V permits in 2011 to operate the drill vessel Kulluk in the Beaufort Sea; EPA issued a Statement of Basis and a final Permit.
- EPA decided it would not require Shell to perform a preconstruction PSD increment analysis for the Kulluk and granted a 500‑meter exemption from the EPA definition of “ambient air,” conditioned on a Coast Guard safety zone and public access controls.
- Alaska Wilderness League challenged the Permit before the EPA Environmental Appeals Board (EAB), arguing (1) § 7661c(e) requires increment analysis whenever increments exist for the geographic area and (2) the 500‑meter ambient‑air exemption was improper since Shell did not control the surrounding waters by fence or physical barriers.
- The EAB rejected both challenges, holding that § 7661c(e) does not automatically make geographic increment requirements “applicable” to a temporary, non‑major PSD source and that the ambient‑air exemption was consistent with EPA rules and agency precedent.
- The Ninth Circuit reviewed the EAB decision, applying Chevron deference to the EAB’s statutory interpretation and relying on its earlier decision in REDOIL for the ambient‑air issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chevron deference applies to EAB’s interpretation | EAB decision not entitled to Chevron deference | EPA/EAB proceeding was a formal adjudication warranting Chevron deference | Court applied Chevron deference to EAB interpretation |
| Whether § 7661c(e) requires preconstruction PSD increment analysis for the temporary Kulluk | § 7661c(e) unambiguously requires increment analysis whenever increments exist for the geographic area (geography‑based) | “Applicable” is source‑based: increments apply only when PSD would require them (e.g., major emitting facility or SIP imposes them) | § 7661c(e) is ambiguous; EPA’s source‑based interpretation is reasonable and upheld |
| Whether EPA permissibly exempted the 500‑meter radius around the Kulluk from “ambient air” | Exemption invalid because Kulluk/owner cannot exclude public access by physical barriers as in Costle Letter | Exemption is a permissible interpretation of the ambient‑air regulation and prior agency guidance | Court, following REDOIL, upheld the 500‑meter exemption |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for judicial deference to agency statutory interpretations)
- Resisting Envtl. Destruction on Indigenous Lands (REDOIL) v. EPA, 716 F.3d 1155 (9th Cir. 2013) (upholding EPA ambient‑air exemption approach)
- Alaska Dep’t of Envtl. Conservation v. EPA, 298 F.3d 814 (9th Cir. 2002) (context on PSD and permitting)
- Great Basin Mine Watch v. EPA, 401 F.3d 1094 (9th Cir. 2005) (discussion of PSD increment purpose)
- Train v. Natural Res. Def. Council, Inc., 421 U.S. 60 (1975) (defining ambient air as outdoor air used by the public)