926 F.3d 844
D.C. Cir.2019Background
- PacifiCorp operates the Hunter Power Plant in Emery County, Utah; it obtained a Title I preconstruction permit in 1997 and a Title V operating permit in 1998 that incorporated the 1997 preconstruction terms.
- Utah issued a renewal Title V permit in 2016; Sierra Club petitioned EPA to object, arguing the 1997 preconstruction permit erroneously classified late-1990s modifications and thus omitted applicable requirements (e.g., BACT).
- The EPA Administrator denied Sierra Club’s petition without adjudicating the substantive merits, explaining a narrower interpretation of Title V that declines re-review of earlier Title I preconstruction permit decisions in these circumstances.
- Sierra Club filed for review in the D.C. Circuit seeking vacatur and remand so EPA would address the merits; it also filed a protective appeal in the Tenth Circuit.
- The threshold question was venue under Clean Air Act §307(b)(1): whether the Administrator’s Order was "nationally applicable" or the Administrator had found and published that it had nationwide scope or effect. The court dismissed for improper venue in D.C. Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sierra Club has Article III standing to seek review | Sierra Club members suffer aesthetic/health injuries from haze traceable to Hunter and redressable if EPA reconsiders the permit | PacifiCorp argued insufficient injury and redressability given emissions declines | Held: Sierra Club has standing based on members’ declarations and potential redress on remand |
| Whether the EPA Order is "nationally applicable" under §307(b)(1) | Order embodies an interpretive change affecting Title V nationwide, so D.C. venue is proper | Order applies only to a single permit and is expressly limited to the Hunter facts | Held: Order is not nationally applicable on its face; venue in D.C. Circuit improper |
| Whether the Administrator published a finding that the action has nationwide scope or effect | Sierra Club implied EPA’s published Order reflects a nationwide determination | EPA did not make a finding of nationwide scope/effect; mere publication does not suffice | Held: No published finding of nationwide scope/effect; venue in D.C. Circuit therefore not justified |
| Whether the D.C. Circuit should reach the merits despite venue defect | Sierra Club sought merits review because of the novel Title V interpretation | EPA argued procedural venue rule controls and merits are premature | Held: Court dismissed for lack of venue without addressing substantive merits |
Key Cases Cited
- Dalton Trucking, Inc. v. EPA, 808 F.3d 875 (D.C. Cir. 2015) (venue provision of §307(b)(1) is not jurisdictional; consider face of action for national applicability)
- Am. Road & Transp. Builders Ass'n v. EPA, 705 F.3d 453 (D.C. Cir. 2013) (approval of state actions without a published nationwide-effect finding belongs in regional circuits)
- Sierra Club v. EPA, 699 F.3d 530 (D.C. Cir. 2012) (organization standing where members live in affected areas and vacatur would require agency to consider claims)
- NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014) (standing principles in environmental challenges)
- Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) (organizational standing where members suffer concrete aesthetic and health injuries)
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (standing constitutional minimum: injury in fact, causation, redressability)
- Ass'n of Am. Physicians & Surgeons v. Sebelius, 746 F.3d 468 (D.C. Cir. 2014) (procedural injury and relaxed redressability standard)
- Tex. Mun. Power Agency v. EPA, 89 F.3d 858 (D.C. Cir. 1996) (venue and review under §307(b)(1))