Guardians v. Agency
728 F.3d 1075
10th Cir.2013Background
- WildEarth Guardians sought review of EPA denial of an objection to a Title V permit for Xcel Energy's Pawnee power station in Morgan County, CO.
- Petitioner argued PSD requirements were triggered by major modifications in 1994 and 1997, supported by a 2002 EPA Notice of Violation (NOV).
- CDPHE concluded the NOV was only an allegation and did not prove PSD noncompliance; other submitted documents did not establish a major modification.
- EPA reviewed the petition, held NOV alone is not sufficient to demonstrate PSD noncompliance, and denied the petition on PSD grounds and on CDPHE's response to comments.
- Petitioner challenged the EPA's interpretation of the demonstration requirement and the adequacy of CDPHE's response to comments.
- D.C. standard of review: the court reviews EPA action under the Administrative Procedure Act for arbitrariness or capriciousness, and may defer to EPA's interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NOV alone demonstrates PSD noncompliance. | WildEarth Guardians; NOV sufficient. | EPA; NOV alone not sufficient to demonstrate PSD. | Affirmed: NOV alone not sufficient to show noncompliance. |
| What evidence is required to demonstrate PSD applicability under Colorado SIP. | Petitioner's additional documents prove major modification. | Evidence fails to prove major modification or net emissions increases. | Affirmed: record insufficient to demonstrate a major modification or significant net emissions increase. |
| Whether EPA properly deferred to CDPHE's interpretation and response to comments. | CDPHE failed to adequately respond; EPA should object. | CDPHE provided adequate explanation and EPA acted within discretion. | Affirmed: EPA’s conclusion that CDPHE adequately responded and its interpretation are persuasive. |
Key Cases Cited
- Ariz. Pub. Serv. Co. v. U.S. EPA, 562 F.3d 1116 (10th Cir. 2009) (arbitrary or capricious review; agency must consider relevant data and rationalize its decision)
- Sierra Club v. Johnson, 541 F.3d 1257 (11th Cir. 2008) (EPA may consider factors beyond an NOV; NOV is not final proof of noncompliance)
- Sierra Club v. U.S. EPA, 557 F.3d 408 (6th Cir. 2009) (NOV is the beginning of a process; may be contested; not dispositive)
- Sierra Club v. Johnson, 541 F.3d 1257 (11th Cir. 2008) (reaffirmed deference to EPA demonstration standard; NOV not sole determinative factor)
- Barnhart v. Walton, 535 U.S. 212 (2002) (interpretation of ambiguous statutes; agency deference framework)
- McGraw v. Barnhart, 450 F.3d 493 (10th Cir. 2006) (Skidmore deference framework in some administrative interpretations)
- Mead Corp. v. United States, 533 U.S. 218 (2001) (scope of Chevron deference; consideration of agency expertise)
- N.Y. Pub. Interest Research Grp. v. Johnson, 427 F.3d 172 (2d Cir. 2005) (contest of NOV sufficiency for demonstrating PSD noncompliance)