Arizona Ex Rel. Darwin v. U.S. Environmental Protection Agency
852 F.3d 1148
| 9th Cir. | 2017Background
- Congress directed states to adopt State Implementation Plans (SIPs) under CAA §169A to improve visibility in federal parks and wilderness; EPA must issue a Federal Implementation Plan (FIP) if a SIP is deficient.
- Arizona submitted a 2011 SIP; EPA disapproved portions (BART analyses, Reasonable Progress (RP) analyses and long-term strategies) and issued a FIP with replacement measures.
- Key regulatory tools: BART (source-specific five-factor balancing) and RP (four-factor balancing applied to all sources affecting Reasonable Progress Goals (RPGs)).
- Proposed FIP included qualitative RPGs, BART/RP controls for CalPortland cement kiln (SNCR), emission limits for copper smelters (Asarco, Freeport-McMoran), and an affirmative defense for malfunctions; Final FIP revised several items, added numeric RPGs, adjusted control efficiencies, and removed the affirmative defense.
- Petitioners (Arizona, Phoenix Cement, CalPortland, Asarco) challenged the Final FIP; the Ninth Circuit reviewed exhaustion of administrative objections and whether EPA’s FIP was arbitrary or capricious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adoption of numerical RPGs | RPGs impose large costs for trivial visibility gains (≈0.10 dv) and were not subject to proper notice | EPA argues it considered comments, later quantified RPGs in response to comments and has discretion in methodology | Court: Challenge barred for failure to exhaust administrative remedies (must first request EPA reconsideration) and dismissed that part of the petition |
| Elimination of affirmative-defense for malfunctions | Removing the affirmative defense was procedurally improper and substantively invalid | EPA relied on D.C. Cir. precedent and concluded CAA does not authorize EPA to promulgate such a defense in a FIP | Court: Challenge barred for failure to raise before EPA; dismissed without reaching substantive merits |
| Imposition of SNCR (CalPortland cement kiln) | EPA underweighted visibility benefits and improperly applied RP four-factor analysis; SNCR yields negligible benefit (0.004 dv) | EPA considered all four RP factors, used modeling showing larger single-source benefit (0.59 dv), and reasonably set SNCR efficiency at 35% after comment | Court: EPA’s decision was not arbitrary or capricious; upheld SNCR requirement |
| Emission limits for copper smelters (NOx, PM, SO2) | Limits are arbitrary: 40 tpy NOx cap unnecessary; incorporating Subpart QQQ for PM and 99.8% SO2 control for Asarco are unsupported or infeasible | EPA imposed 40 tpy caps to prevent future increases and because smelters are BART-eligible; adopted Subpart QQQ limits based on Asarco’s own reliance; SO2 rate based on Asarco’s representations and feasible on a 365‑day rolling average | Court: Upheld EPA’s limits as reasonable and supported by the record; not arbitrary or capricious |
Key Cases Cited
- Arizona ex rel. Darwin v. EPA, 815 F.3d 519 (9th Cir. 2016) (prior Ninth Circuit decision upholding EPA actions on Arizona SIP/FIP)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (standard for arbitrary and capricious review)
- Natural Resources Defense Council v. EPA, 749 F.3d 1055 (D.C. Cir. 2014) (addressing EPA authority regarding affirmative defenses for malfunctions)
- Nat’l Parks Conservation Ass’n v. EPA, 788 F.3d 1134 (9th Cir. 2015) (deference in technical EPA matters)
- EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015) (exhaustion/reconsideration under CAA §7607(d)(7)(B))
- North Dakota v. EPA, 730 F.3d 750 (8th Cir. 2013) (same on exhaustion of notice-and-comment objections)
- Oklahoma v. EPA, 723 F.3d 1201 (10th Cir. 2013) (same on exhaustion of notice-and-comment objections)