964 F.3d 882
10th Cir.2020Background
- Title V of the Clean Air Act requires state-issued operating permits to ensure "compliance with" all "applicable requirements;" the regulation defines "applicable requirements" to include requirements in a state's implementation plan (SIP).
- PacifiCorp sought preconstruction approval for modifications to its Hunter Plant (1997–1999); Utah determined only minor NSR applied and issued a Title I preconstruction permit unchallenged at the time.
- Utah issued a Title V operating permit for the Hunter Plant in 1998 (incorporating the minor-NSR terms); renewal was delayed and Utah renewed the Title V permit in 2016, again incorporating the minor-NSR terms and sending the proposed renewal to EPA, which did not object.
- The Sierra Club petitioned the EPA in 2016, arguing the 1997–1999 modifications should have triggered major NSR and thus that the Title V renewal omitted applicable SIP requirements; the EPA denied the petition, adopting a narrow interpretation of "applicable requirements" tied to prior preconstruction permits (the "Hunter Order").
- The Sierra Club challenged the Hunter Order in federal court; the court (Tenth Circuit) found the Sierra Club had Article III standing, concluded the regulatory definition of "applicable requirements" unambiguously includes SIP requirements (including major NSR), vacated the Hunter Order, and remanded to the EPA for further consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of "applicable requirements" in 40 C.F.R. § 70.2 | Includes all SIP requirements under the Act, so Title V must reflect major NSR if SIP requires it | Limited to terms and conditions of an existing preconstruction (Title I) permit incorporated into Title V | Regulation unambiguously includes SIP requirements; EPA interpretation conflicts with regulation; vacated and remanded |
| Standing to sue | Sierra Club members suffer concrete recreational/health injuries tied to Hunter emissions; relief could reduce emissions | PacifiCorp: delay, other polluters, emission reductions since 1997 undermine standing | Sierra Club has standing (injury-in-fact, causation, redressability) |
| Timeliness / laches / collateral attack | Petition timely under Title V review procedures; laches disfavored in environmental cases; Title V procedure permits challenge | Intervenors: challenges to old Title I decisions are untimely, laches/preclusory finality bar relief | Petition to EPA was timely; laches and finality arguments do not bar consideration under Title V process |
| Deference to EPA (Auer/Kisor) | No deference needed because regulation is unambiguous; textual reading controls | Regulation is ambiguous; EPA interpretation entitled to Auer deference | Court finds regulation unambiguous; Auer deference not applied; EPA's contrary interpretation rejected |
Key Cases Cited
- Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) (standing: injury-in-fact, traceability, redressability standards)
- Sierra Club v. Morton, 405 U.S. 727 (1972) (aesthetic and recreational injury can support standing)
- Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738 (9th Cir. 2008) (interaction of Titles I and V relevant to interpretation)
- Luminant Generation Co. v. EPA, 675 F.3d 917 (5th Cir. 2012) (distinguishing major and minor NSR substantive requirements)
- WildEarth Guardians v. EPA, 759 F.3d 1196 (10th Cir. 2014) (causation in emissions cases where EPA action could have reduced pollution)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (agency actions judged on the grounds articulated by the agency)
- Auer v. Robbins, 519 U.S. 452 (1997) (agency interpretation of its own regulation may be controlling unless plainly erroneous)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits on Auer deference; regulatory ambiguity threshold)
- Sierra Club v. Leavitt, 368 F.3d 1300 (11th Cir. 2004) (Title V consolidates existing Act requirements into a single, enforceable permit)