812 F.3d 662
8th Cir.2016Background
- Nebraska submitted a Regional Haze SIP that concluded Gerald Gentleman Station (a major SO2 source) required no SO2 controls as BART after evaluating wet/dry FGD (scrubbers) and dry sorbent injection (DSI).
- Nebraska found FGD cost-effective per ton but rejected controls based on non-air impacts (notably water use) and concluded no SO2 BART was required.
- EPA partially disapproved Nebraska’s SIP, finding errors in Nebraska’s cost modeling, rejection of DSI, and improper baseline assumptions; EPA replaced the disapproved portion with a Federal Implementation Plan (FIP) relying on the Transport Rule/CSAPR as a BART alternative.
- Conservation groups challenged EPA’s reliance on the Transport Rule for the Station and argued EPA should have required a geographic enhancement (a scrubber) in addition to trading allowances. Nebraska petitioned to overturn EPA’s disapproval of its SIP.
- The Eighth Circuit reviewed whether EPA permissibly disapproved Nebraska’s BART determination and whether EPA lawfully relied on the Transport Rule (and declined a geographic enhancement) in the FIP.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA exceeded its authority by disapproving Nebraska’s BART determination for Gerald Gentleman Station | Nebraska: EPA substituted its own analysis for the State’s and should have deferred to the State’s reasoned BART decision | EPA: Nebraska’s cost and baseline analyses contained errors and were not reasoned; EPA may disapprove unreasoned state BART determinations | Held: EPA permissibly disapproved Nebraska’s BART determination because Nebraska’s analysis was flawed and unreasoned |
| Whether EPA lawfully promulgated a FIP relying on the Transport Rule as a better-than-BART alternative for the Station | Conservation Orgs: Transport Rule yields less SO2 reduction at the Station than source-specific BART and EPA failed to explain why Transport Rule is better here | EPA: May use an alternative if it achieves greater average visibility improvement across affected Class I areas; national Better-than-BART finding supports use here | Held: EPA’s reliance on the Transport Rule was not arbitrary or capricious; record shows Transport Rule yields greater or comparable average improvement across affected Class I areas |
| Whether EPA erred by rejecting a geographic enhancement (scrubber) in the FIP | Conservation Orgs: EPA’s own reasoning for disapproving Nebraska would require EPA to require a scrubber in the FIP | EPA: Geographic enhancements are intended to address RAVI findings; no RAVI certification exists for this Station, and Transport Rule meets minimum BART requirements | Held: EPA did not abuse its discretion in declining a geographic enhancement given lack of RAVI finding and valid reliance on Transport Rule |
| Jurisdiction to review local challenge to EPA’s use of the Transport Rule | Conservation Orgs: Court should review the FIP’s reliance on the Transport Rule | EPA: Challenge is effectively a collateral attack on nationwide Better‑than‑BART rule and thus not properly before the court | Held: Court has jurisdiction to review the locally applicable FIP challenge (no nationwide-scope determination invoked) |
Key Cases Cited
- Gen. Motors Corp. v. United States, 496 U.S. 530 (1990) (describing shared federal-state roles under the Clean Air Act)
- Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461 (2004) (EPA may review substance of state control determinations to ensure reasoned analysis)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious standard for agency action)
- EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014) (upholding the Cross-State Air Pollution Rule/Transport Rule)
- North Dakota v. EPA, 730 F.3d 750 (8th Cir. 2013) (affirming EPA disapproval where state cost analysis was flawed)
- Sierra Club v. EPA, 252 F.3d 943 (8th Cir. 2001) (standard of review for EPA actions)
- Ctr. for Energy & Econ. Dev. v. EPA, 398 F.3d 653 (D.C. Cir. 2005) (Clean Air Act focuses on actual visibility improvement, not mandatory BART as exclusive mechanism)
- Util. Air Regulatory Grp. v. EPA, 471 F.3d 1333 (D.C. Cir. 2006) (BART alternatives need not match BART at every Class I area)