Sierra Club De Puerto Rico v. Environmental Protection Agency
815 F.3d 22
D.C. Cir.2016Background
- Energy Answers sought to build a waste‑to‑energy incinerator in Arecibo, Puerto Rico, and applied for a federal PSD permit (EPA) and a state NNSR permit (Puerto Rico).
- In November 2011 EPA designated part of Arecibo nonattainment for lead; EPA later issued the PSD permit (June 2013) and Puerto Rico issued an NNSR/minor source permit (Dec. 2014) limiting lead to 0.31 tpy, the plant’s projected emissions.
- The Clean Air Act (CAA) distinguishes PSD (for attainment areas) and NNSR (for nonattainment areas); NNSR’s statutory major‑source threshold is 100 tpy of “any air pollutant.”
- A 1980 EPA regulation, 40 C.F.R. § 51.165(a)(2)(i), limits NNSR to sources that are major for the pollutant for which the area is designated nonattainment (i.e., the 100 tpy trigger applies to the nonattainment pollutant only).
- Sierra Club challenged that 1980 rule as an unlawful narrowing of “any air pollutant,” arguing it creates a loophole allowing significant lead‑emitting sources to avoid NNSR; Sierra Club filed petition for review in July 2014.
- The D.C. Circuit dismissed the petition as time‑barred under the CAA’s 60‑day judicial‑review period for challenges to EPA action, without reaching the merits of Sierra Club’s statutory‑interpretation claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sierra Club’s challenge to the 1980 regulation is timely under 42 U.S.C. § 7607(b)(1)’s 60‑day rule and its after‑arising‑grounds exception | The claim ripened when EPA issued the PSD permit (May/June 2014), so petition filed within 60 days is timely | The alleged injury arose earlier (e.g., the 2011 nonattainment designation) and mere later application of an old rule does not create after‑arising grounds | Petition is time‑barred; dismissal for lack of timeliness under § 7607(b)(1) |
| Whether EPA lawfully interpreted “any air pollutant” by limiting NNSR to the pollutant for which the area is nonattainment (i.e., the substantive validity of the 1980 rule) | EPA unlawfully narrowed the statutory term and thereby permitted the incinerator to avoid NNSR despite lead risks | EPA contends the regulatory phrasing was for simplicity and later provided justifications; EPA administered permits consistently with statutory scheme | Court did not reach the merits of this substantive claim because petition was untimely |
Key Cases Cited
- Coalition for Responsible Regulation, Inc. v. Environmental Protection Agency, 684 F.3d 102 (D.C. Cir. 2012) (after‑arising‑grounds exception can ripen a claim when an event creates a substantial probability of concrete injury)
- Am. Road & Transp. Builders Ass'n v. Environmental Protection Agency, 705 F.3d 453 (D.C. Cir. 2013) (mere application of an old regulation does not create after‑arising grounds)
- Honeywell Int’l, Inc. v. Environmental Protection Agency, 705 F.3d 470 (D.C. Cir. 2013) (a subsequent decision can change the legal landscape and produce after‑arising grounds)
- Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449 (D.C. Cir. 1998) (describing the CAA § 7607(b) time limit as jurisdictional)
- Util. Air Regulatory Grp. v. Environmental Protection Agency, 134 S. Ct. 2427 (U.S. 2014) (Supreme Court later addressed EPA’s authority to interpret “any air pollutant")