816 F.3d 989
8th Cir.2016Background
- EPA approved Minnesota's Regional Haze SIP on June 12, 2012, and six conservation groups petitioned for review.
- The petition is brought under 42 U.S.C. § 7607(b)(1) challenging EPA's approval of Minnesota's use of the Transport Rule instead of source-specific BART for five EGUs.
- Minnesota's plan includes reasonable-progress goals targeting natural visibility in two Class I areas: Boundary Waters and Voyageurs.
- EPA determined the Transport Rule is 'better than BART' and, accordingly, allowed Minnesota to substitute the Rule for BART for the five EGUs.
- EPA also approved Minnesota's reasonable-progress goals, finding the first implementation period (through 2018) reasonable given controllable sources and the four regulatory factors.
- The case discusses jurisdiction under § 7607(b)(1): whether the action is nationally applicable (DC Circuit) or locally/regionally applicable (regional circuit).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA's approval of Minnesota's Transport Rule reliance is lawful | Petitioners contend Transport Rule is not better than BART for the Minnesota EGUs. | EPA rationally found the Transport Rule yields greater overall reasonable progress and thus may substitute for BART. | EPA's approval was not arbitrary or capricious; Transport Rule is better than BART for the Minnesota plan. |
| Whether EPA's approval of Minnesota's reasonable-progress goals is lawful | Petitioners argue goals misstate progress or fail to justify the 2064 timeline. | EPA gave deference to Minnesota's analysis of the four factors and uncontrollable contributions; goals are reasonable for the first period. | EPA's approval of the reasonable-progress goals is not arbitrary or capricious. |
| Whether this court has jurisdiction to review the Minnesota Plan | EPA action is nationally applicable and belongs in the D.C. Circuit; petitioners may invoke this court's jurisdiction. | The action is locally/regionally applicable; jurisdiction lies in the regional court unless nationwide scope is published. | Jurisdiction lies in the regional court; the district panel retains authority to review this locally applicable action. |
Key Cases Cited
- North Dakota v. EPA, 730 F.3d 750 (8th Cir. 2013) (deference to EPA on reasonable-progress determinations; 2064 deadline considerations)
- Madison Gas & Electric Co. v. EPA, 4 F.3d 529 (7th Cir. 1993) (locally applicable challenge can proceed where national program elements are challenged)
- Am. Rd. & Transp. Builders Ass’n v. EPA, 705 F.3d 453 (D.C. Cir. 2013) (two routes for review of nationally applicable vs. locally applicable actions)
- Lion Oil Co. v. EPA, 792 F.3d 978 (8th Cir. 2015) (jurisdiction to review local action when nationwide scope not published)
- U.S. v. Cinergy Corp., 458 F.3d 705 (7th Cir. 2006) (context on evaluating regulatory challenged provisions' meaning, not the regulation's validity)