952 F.3d 310
D.C. Cir.2020Background
- The Clean Air Act (CAA) requires EPA to set MACT (maximum achievable control technology) numerical HAP limits when "feasible," but allows non-numeric "work practice" standards where numerical measurement is not practicable under § 7412(h).
- In 2012 EPA issued the MATS Rule setting numerical limits except during startup/shutdown, where EPA promulgated work-practice standards because of purported lack of reliable startup/shutdown emission data.
- In 2013 EPA reopened comment on the definition of "startup" and published a Technical Support Document (2013 TSD) analyzing APCD (air pollution control device) engagement times for SO2/NOx as indicators of the end of startup but did not identify or analyze "best performing" units nor cite § 7412(h) measurability requirements.
- The 2014 Final Rule added an alternative, extended startup definition (ending several hours after generation) and, for the first time in the Final TSD, identified a set of EPA-selected "best performing" EGUs and treated APCD engagement as a proxy for when HAPs become numerically measurable.
- Petitioners (environmental groups) timely commented that EPA failed to show numerical measurability was infeasible during the extended period and that EPA had not applied any best-performer analysis; they later petitioned for reconsideration after EPA adopted the Final Rule; EPA denied reconsideration.
- The D.C. Circuit held Petitioners had standing (Sierra Club) and vacated EPA’s denial of reconsideration, remanding for EPA to reconsider because (1) it was impracticable to raise the specific objections during notice-and-comment (Final Rule was not a logical outgrowth), and (2) the objections were of central relevance to the rule’s legality; the court did not reach the merits of the arbitrary-and-capricious challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Sierra Club members are harmed by emissions and have organizational standing to challenge EPA action | EPA/Intervenors did not contest standing but court must confirm | Standing satisfied (Sierra Club demonstrated member injury; suit may proceed) |
| Denial of petition for reconsideration under §7607(d)(7)(B) (impracticability/logical outgrowth) | EPA first relied on an undisclosed best-performer selection and a new proxy (APCD engagement → measurability) in the Final TSD; these changes were not a logical outgrowth of the 2013 proposal, so it was impracticable to raise them earlier | EPA contends commenters raised feasibility and best-performer issues and that the Final TSD followed the same analytical approach; denial of reconsideration was proper | Vacated EPA’s denial and remanded: court found it was impracticable to raise the specific Final TSD choices during comment because they were not reasonably foreseeable (failed logical outgrowth) |
| Central relevance of the objections to the rule's legality | If EPA’s choice of best performers or its proxy for measurability is incorrect, the extended startup endpoint and permissibility of work-practice standards would be unlawful | EPA argued objections lack merit and therefore are not centrally relevant | Court held objections were centrally relevant because they go to the legality of applying §7412(h) work-practice standards for the extended startup period |
| Merits challenge (arbitrary-and-capricious) to the Final Rule’s extended startup definition | Final Rule arbitrary and capricious because EPA failed to justify measurability and best-performers approach | EPA defended its substantive analysis and urged deferential review; argued arbitrary-and-capricious standard applies | Court did not decide merits; remand for reconsideration mooted need to resolve substantive challenge |
Key Cases Cited
- U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016) (describing MACT floor and CAA framework)
- Sierra Club v. EPA, 884 F.3d 1185 (D.C. Cir. 2018) (discussing work-practice standards as statutory Plan B under §7412(h))
- Clear Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017) (addressing logical outgrowth and review standard for reconsideration denials)
- Alon Refining Krotz Springs, Inc. v. EPA, 936 F.3d 628 (D.C. Cir. 2019) (explaining logical outgrowth in rulemaking context)
- CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076 (D.C. Cir. 2009) ("logical outgrowth" notice must come from the NPRM)
- Portland Cement Ass'n v. EPA, 665 F.3d 177 (D.C. Cir. 2011) (comments can bear on notice where agency sought comment)
- AT&T Corp. v. FCC, 363 F.3d 504 (D.C. Cir. 2004) (standards for reviewing denial of reconsideration)
- Kennecott Corp. v. EPA, 684 F.2d 1007 (D.C. Cir. 1982) (central relevance standard for reconsideration objections)