885 F.3d 714
D.C. Cir.2018Background
- EPA issued a Final Rule (June 7, 2012) revising Regional Haze provisions to allow states participating in CSAPR to treat CSAPR compliance as a "better-than-BART" alternative and disapproved SIP provisions that relied on the earlier CAIR, promulgating FIPs where necessary.
- Conservation groups challenged EPA’s finding that CSAPR qualifies as a better-than-BART alternative; utilities, industry groups, and some states challenged EPA’s disapproval of CAIR-based SIPs.
- CAIR had earlier been vacated/remanded by this Court (North Carolina I/II); EPA replaced CAIR with CSAPR to address interstate SO2/NOx transport.
- This Court reviews EPA’s action under the Clean Air Act/APA arbitrary-and-capricious standard and previously upheld EPA’s authority to approve regional trading programs as BART alternatives in prior opinions (CEED, UARG I), subject to specific constraints.
- The court considered challenges to EPA’s modeling (use of presumptive/category-wide BART, treatment of useful life, choice of averaging and comparison method) and procedural/timing disparities in EPA’s approval/disapproval of CAIR-based SIPs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA permissibly used presumptive/category-wide BART rather than source-specific BART modeling | Conservation: EPA must do source-specific five-factor BART for each BART-eligible unit | EPA: regulation authorizes category-wide/presumptive BART when alternative is designed for other requirements; reliance was reasonable | Held: EPA’s use of presumptive BART authorized by 40 C.F.R. §51.308(e)(2)(i)(C); challenge time-barred and merits fail |
| Whether EPA unreasonably failed to address comments about modeling a unit’s remaining useful life | Conservation: EPA ignored comment that useful life should alter BART modeling | EPA: useful-life effects are speculative and not significant to model; limited comment did not raise a significant omission requiring response | Held: No remand; EPA’s omission not fatal—comments speculative and agency sufficiently considered main objections |
| Whether EPA applied an improper comparison baseline (should compare CSAPR vs CSAPR+ BART rather than CSAPR vs BART) | Conservation: EPA should compare CSAPR alone to CSAPR plus BART because CSAPR exists independently | EPA: prior precedent (UARG I) allows comparison of the two regimes; regulation and reasoned interpretation permit EPA’s method | Held: Court rejects petitioner’s reinterpretation; UARG I controls; EPA’s approach reasonable under Auer |
| Whether EPA erred in disapproving CAIR-based SIPs and treating similarly-situated SIPs inconsistently | States/Industry: CAIR historically produced BART-equivalent results; EPA should have left CAIR-based SIPs approved (or must approve them consistently) | EPA: CAIR was vacated; without CAIR there is no legal basis to require CAIR-level controls; timing and evolving litigation posture justified different treatments (e.g., Connecticut) | Held: Petitioners lack relief—CAIR is dead and cannot be resurrected; EPA’s disparate timing explained and not arbitrary; challenge effectively moot |
Key Cases Cited
- Center for Energy and Economic Development v. EPA, 398 F.3d 653 (D.C. Cir.) (upholding EPA discretion to approve regional alternatives to BART)
- Utility Air Regulatory Group v. EPA, 471 F.3d 1333 (D.C. Cir.) (interpreting better-than-BART comparison and upholding CAIR as alternative in prior context)
- North Carolina v. EPA, 531 F.3d 896 (D.C. Cir.) (vacating CAIR)
- North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir.) (remanding CAIR without vacatur to preserve environmental effect pending replacement)
- EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir.) (later challenges to CSAPR state budgets and as-applied issues)
- EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (U.S.) (Supreme Court decision affirming CSAPR subject to as-applied budget challenges)
- Auer v. Robbins, 519 U.S. 452 (U.S.) (deference to agency interpretations of its own regulations)
- Seminole Tribe of Florida v. Florida, 517 U.S. 44 (U.S.) (on binding effect of prior panel decisions)