North Dakota v. United States Environmental Protection Agency
730 F.3d 750
| 8th Cir. | 2013

Background

  • North Dakota submitted regional haze and interstate transport SIPs (2009–2011); EPA issued a Proposed Rule (2011) and a Final Rule (Apr. 6, 2012) approving some SIP elements, disapproving others, and promulgating a FIP for disapproved portions.
  • Central contested items: BART determinations for Coal Creek Station, Milton R. Young Units 1–2, Leland Olds Unit 2; reasonable-progress determinations for Antelope Valley Units 1–2 and Coyote Station; and the interstate-transport (visibility) component.
  • Coal Creek dispute turned on Great River Energy’s erroneous fly-ash revenue figure used by the State in the cost-effectiveness analysis for SNCR; corrected data reduced projected cost but came after EPA’s Final Rule.
  • Antelope Valley and Coyote disputes involved the State’s use of a cumulative-source visibility model that used degraded current background (not natural background) to calculate incremental visibility benefits and dollars-per-deciview metrics.
  • For Young and Olds units, EPA proposed disapproval but after a district court upheld the State’s BACT decision (Minnkota), EPA reversed and approved the State’s BART determinations in the Final Rule; Environmental Groups sought reconsideration and filed for review.
  • Court disposition: granted in part (vacating EPA’s FIP BART for Coal Creek because EPA refused to consider voluntarily installed controls) and denied in part (upholding EPA’s disapprovals for Antelope Valley and interstate-transport, upholding approval for Coyote limit, and finding EPA lacked jurisdiction to review some late-raised challenges to Young/Olds BART approvals).

Issues

Issue State/Intervenors' Argument EPA/Respondents' Argument Held
1) May EPA disapprove a state BART determination that technically considered each factor but relied on fundamentally flawed data (Coal Creek)? State: SIP met §169A because it analyzed each BART factor; EPA must approve if factors considered. EPA: Where a required factor (cost) is based on grossly erroneous data, the state failed to meaningfully consider it; EPA can reject the SIP. Held: EPA may disapprove a BART determination grounded on materially erroneous data; disapproval of State’s Coal Creek BART was proper.
2) Must EPA consider voluntarily installed, post-baseline pollution controls in its FIP BART analysis (Coal Creek DryFining™)? Great River: "any existing pollution control technology" includes voluntarily installed controls; EPA must consider them. EPA: "Existing pollution control" means controls adopted to meet CAA requirements (e.g., in permits/SIPs); post-baseline voluntary tech need not be counted. Held: Statute’s use of “any” is expansive; EPA’s narrow interpretation is unreasonable; EPA’s FIP for Coal Creek vacated for failing to consider voluntarily installed controls.
3) Was EPA’s disapproval of the State’s reasonable-progress determination for Antelope Valley (use of cumulative-source model with degraded baseline) arbitrary? State: It may use its own visibility model and dollars-per-deciview metric; its model is acceptable. EPA: Using degraded background understates benefits and frustrates §169A goal of attaining natural visibility; EPA reasonably rejected that approach. Held: EPA’s technical judgment is entitled to deference; disapproval upheld.
4) Was EPA’s approval of North Dakota’s 0.50 lb/MMBtu limit for Coyote Station arbitrary given disagreement over ASOFA? Env. Groups: EPA cannot say ASOFA was unreasonably rejected and yet approve a laxer limit; approval lacks reasoned basis. EPA: Even if ASOFA might be reasonable, SIP’s adopted limit can still represent “reasonable progress”; EPA evaluated statutory factors and reasonably approved the limit. Held: Approval not arbitrary; EPA’s path reasonably discernible; petition denied.

Key Cases Cited

  • Am. Corn Growers Ass’n v. EPA, 291 F.3d 1 (D.C. Cir.) (discussing regional haze program and state SIP obligations)
  • EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir.) (states implement NAAQS through SIPs; cooperative federalism)
  • Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461 (2004) (agency may review substance of state technology-determination to ensure reasoned analysis)
  • Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for deference to reasonable agency statutory interpretations)
  • Minnkota Power Co-op. v. EPA, 831 F. Supp. 2d 1109 (D.N.D.) (district court upheld State’s BACT finding for Young units; influenced EPA’s Final Rule)
  • Appalachian Power Co. v. EPA, 135 F.3d 791 (D.C. Cir.) (administrative exhaustion and agency first-opportunity rule)
  • Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115 (8th Cir.) (addressing materiality and reviewability principles)
  • Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) (court defers to agency expertise on technical matters)
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