Natural Resources Defense Council v. Department of Environmental Quality
300 Mich. App. 79
| Mich. Ct. App. | 2013Background
- Holland sought a permit to install a new circulating fluidized bed boiler at the James DeYoung Generating Station; the project would replace an old boiler in one unit.
- Holland’s application included a best available control technology (BACT) analysis for various fuels, including biomass, petcoke, tire-derived fuel, and coal.
- The Department denied the permit in August 2010 for failure to show need to meet projected capacity; Holland sought a writ of mandamus and the circuit court remanded to apply air quality rules in effect as of August 20, 2010, after which the Department issued the permit.
- Petitioners challenged the Department’s analysis and conclusions under the Clean Air Act (CAA) and state regulations, arguing inadequate consideration of clean fuels and alternative technologies.
- The circuit court affirmed the Department’s decision; petitioners appeal arguing (i) improper standard of review and (ii) lack of authorization by law under the CAA.
- The issue on appeal is whether the circuit court’s affirmed decision was authorized by law and whether the agency’s BACT analysis complied with federal requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court has jurisdiction to hear the appeal as of right | Holland contends no appeal of right. | Petitioners argue jurisdiction exists under MCL 324.5505(8) | Yes; the Court has subject-matter jurisdiction as an appeal of right. |
| Whether the circuit court used the proper standard of review for agency decisions not subject to a contested case | Petitioners say de novo review was required | Department contends proper standard/harmless error | De novo review applicable; any error deemed harmless. |
| Whether the Department’s BACT analysis complied with the Clean Air Act | Department failed to adequately analyze clean fuels and alternatives | BACT analysis considered fuels and technologies; top-down method not mandatory | Department’s analysis satisfied federal requirements; permit authorized by law. |
| Whether the Department’s BACT analysis followed the top-down method | Top-down method mandated by EPA NSR guidance | Top-down method is not mandatory; reasoned analysis suffices | Not mandatory to follow top-down; reasoned analysis adequate under the statute. |
| Whether the Department’s action was authorized by law under the CAA | BACT analysis did not comply with CAA | Action authorized by law; analysis considered clean fuels | Authorized by law; the permit issuance is valid under the CAA. |
Key Cases Cited
- Alaska Dept. of Environmental Conservation v. United States Environmental Protection Agency, 540 U.S. 461 (2004) (CAA permit review; reasoned analysis sufficient; top-down not mandatory)
- Alaska Dep’t of Environmental Conservation v United States Environmental Protection Agency, 298 F.3d 814 (9th Cir. 2002) (reiteration of reasoned analysis requirement under CAA)
- Sierra Club v United States Environmental Protection Agency, 499 F.3d 653 (9th Cir. 2007) (statutory interpretation guidance for EPA CAA actions)
- Northwestern Nat’l Cas Co v Comm’r of Ins, 231 Mich App 483 (200") (Michigan appellate authority on statutory/administrative review)