Genon Rema, LLC v. United States Environmental Protection Agency
722 F.3d 513
| 3rd Cir. | 2013Background
- Portland Generating Station (Portland) is a 427-MW coal-fired plant in Upper Mount Bethel, PA, near the NJ border; sulfur dioxide (SO2) emissions cross the Delaware River into New Jersey.
- EPA issued the Portland Rule under Section 126(b) finding Portland significantly contributes to downwind SO2 nonattainment/interference in New Jersey and imposed emission limits with a 3-year compliance schedule.
- GenOn REMA, LLC challenged EPA’s authority, arguing the Rule improperly bypassed Pennsylvania’s SIP process under the Clean Air Act’s cooperative federalism framework.
- Statutory framework: NAAQS; SIPs under §110(a); SIP calls and Federal Implementation Plans; and §126(b) petitions enabling EPA to act to curb interstate pollution.
- The Final Rule, issued after EPA’s proposed rule and public comments, requires substantial SO2 reductions and interim progress steps to reach compliance, within three years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can EPA grant a Section 126(b) petition independent of SIP proceedings? | GenOn argues 126(b) is tied to SIP development in §110(a)(2)(D)(i). | EPA contends §126(b) allows prompt federal action regardless of SIP status. | Yes; 126(b) petition may be granted independent of SIP process. |
| Is EPA’s interpretation of §126(b) reasonable under Chevron Step Two? | GenOn/UARG assert legislative history stresses cooperative federalism and state primacy. | EPA argues historical and statutory context support independent EPA action. | Yes; EPA’s interpretation is reasonable and entitled to deference. |
| Is the Portland Rule arbitrary or capricious? | GenOn claims unequal treatment and premature imposition before other sources or SIPs. | EPA shows data-driven analysis, dispersion modeling, and public-comment engagement supporting action. | No; Rule is not arbitrary, capricious, or an abuse of discretion. |
Key Cases Cited
- Appalachian Power Co. v. EPA, 249 F.3d 1032 (D.C. Cir. 2001) (EPA may enforce §126(b) independent of §110 SIP process; interplay clearly supports EPA action)
- New York v. EPA, 852 F.2d 574 (D.C. Cir. 1988) (126(b) petition focuses on major sources, not SIP validity)
- Connecticut v. EPA, 656 F.2d 902 (2d Cir. 1981) (126(b) and 110 are intended to be used in different procedural settings)
- EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012) (recognizes §126 as a separate provision permitting direct EPA regulation of interstate pollution)
- Smiley v. Citibank, 517 U.S. 735 (S. Ct. 1996) (Chevron deference applies to agency interpretations of statutes)