989 F.3d 1038
D.C. Cir.2021Background
- The Clean Air Act’s New Source Review (NSR) requires permits for major new or modified stationary sources; the 2002 Rule adopted an "actual-to-projected-actual" methodology and a vague "reasonable possibility" trigger for recordkeeping/reporting.
- In New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005), the court upheld the methodology but held the undefined "reasonable possibility" standard arbitrary and remanded for explanation or an alternative.
- On remand EPA promulgated a 2007 rule defining "reasonable possibility" as a projected emissions increase of at least 50% of the numeric significance level (or that amount when combined with demand-growth exclusions) to trigger recordkeeping/reporting.
- New Jersey petitioned for review asserting the 50% trigger is arbitrary, inadequately addresses enforcement difficulties from predictive projected-emissions calculations, and leaves enforcement gaps when reporting is not triggered.
- The D.C. Circuit (Rogers) rejected New Jersey’s merits challenges, finding EPA reasonably balanced enforcement and burden concerns and provided a reasoned explanation for the 50% bright-line test; Judge Walker dissented, arguing New Jersey lacked Article III standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | New Jersey: EPA rule impairs state enforcement of NSR and increases risk of cross-state unlawful emissions harming NAAQS attainment | EPA: did not contest standing; intervenors argue state could adopt stricter state rules so injury is self-inflicted | Court: New Jersey has standing (special solicitude; concrete administrative burdens; substantial risk from upwind emissions); dissent would dismiss for lack of traceability/speculation |
| Adequacy of EPA’s remand response | New Jersey: EPA failed to remedy enforcement problems raised in New York and did not justify allowing non-reporting where miscalculations can occur | EPA: adopted reasoned, balanced approach and adjusted rule to account for demand-growth concerns | Held: EPA adequately considered enforcement concerns and explained its choices |
| 50% trigger arbitrariness/vagueness | New Jersey: 50% is arbitrary and still leaves subjective/self-certified determinations unchecked | EPA: bright-line 50% is a reasonable, defensible balance; solicited comments on alternatives; methodology for projections already specified elsewhere | Held: 50% trigger is a reasonable policy choice, not arbitrary or void for vagueness |
| Reliance on non-NSR records for enforcement | New Jersey: Title V, inventories, and business records cannot substitute for project-specific preconstruction data | EPA: enforcement can use those records collectively and EPA need not achieve perfect NSR compliance; must balance compliance benefits against burdens | Held: EPA reasonably analyzed tradeoffs; record does not show arbitrary action |
Key Cases Cited
- New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005) (remanding EPA’s undefined "reasonable possibility" standard as arbitrary)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (U.S. 1983) (standard for arbitrary and capricious review)
- Massachusetts v. EPA, 549 U.S. 497 (U.S. 2007) (states’ "special solicitude" in standing for environmental claims)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (plaintiff’s burden to establish Article III standing)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (U.S. 2013) (threatened injury must be certainly impending; speculative chains insufficient)
- Dep't of Commerce v. New York, 139 S. Ct. 2551 (U.S. 2019) ("predictable effect" of government action on third parties supports standing)
- Competitive Enter. Inst. v. FCC, 970 F.3d 372 (D.C. Cir. 2020) (third-party predictable-effect standing analysis)
- United States Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016) (application of arbitrary-and-capricious standard to EPA rules)
- West Virginia v. EPA, 362 F.3d 861 (D.C. Cir. 2004) (state injury when EPA action makes SIP compliance more onerous)
- Atlas Copco, Inc. v. EPA, 642 F.2d 458 (D.C. Cir. 1979) (principles on vagueness and agency standards)