Wildearth Guardians v. United States Environmental Protection Agency
759 F.3d 1196
10th Cir.
2014

Background

  • The EPA promulgated a Federal Implementation Plan (FIP) on Aug. 24, 2012, imposing Best Available Retrofit Technology (BART) limits for NOx and PM at the Five-Unit Four Corners Power Plant on the Navajo Reservation to address regional haze.
  • WildEarth Guardians challenged the FIP under the Endangered Species Act (ESA), arguing EPA should have consulted with the Fish and Wildlife Service because the FIP could have reduced mercury and selenium emissions that threaten two endangered fish (Colorado pikeminnow and razorback sucker) in the San Juan River.
  • EPA’s FIP offered two compliance options: (1) install post-combustion controls on all units to meet NOx and PM limits, or (2) allow closure of Units 1–3 and more stringent limits on Units 4–5 (APS chose Option 2 and shut Units 1–3 in Dec. 2013). EPA concluded the FIP’s action was limited to NOx/PM BART and that mercury/selenium (hazardous air pollutants) are regulated under other statutory schemes (e.g., MATS).
  • WildEarth argued EPA had discretionary authority in the FIP to (a) require baghouses on Units 1–3, (b) accelerate SCR installation on Units 4–5, (c) regulate SO2 (reducing mercury/selenium collateraly), or (d) directly regulate mercury/selenium — and that such discretion triggered an ESA Section 7 duty to consult.
  • The district court/Tenth Circuit held (1) the baghouse claim was moot because Units 1–3 closed; (2) two timing/SO2 arguments were not timely raised on appeal; and (3) EPA had no ESA consultation duty based on the claimed discretion to directly regulate mercury/selenium because the ESA duty is bounded by the agency action’s clearly defined scope (here, BART for NOx and PM).

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether EPA’s failure to consult under ESA §7 invalidates the FIP WildEarth: EPA had discretion in the FIP to adopt additional measures (baghouses, earlier SCR, SO2 controls, or direct mercury/selenium regulation) that could benefit endangered fish, so ESA consultation was required EPA/APS: EPA’s action was limited to BART for NOx and PM; EPA had no duty to consult about pollutants or measures beyond that defined action Denied: No consultation duty for measures outside the defined FIP action; remaining claimed discrete measure arguments were moot or waived
Mootness of baghouse relief WildEarth: EPA could have required baghouses on Units 1–3 via BART EPA/APS: Units 1–3 have been permanently closed, so relief is moot Held moot: closure of Units 1–3 renders baghouse relief unavailable
Timeliness of arguments to accelerate SCR or regulate SO2 in FIP WildEarth: (raised post-brief) EPA could have accelerated SCR installation and regulated SO2 to reduce hazardous emissions EPA/APS: These arguments were not raised in opening brief and thus forfeited Held forfeited: court declined to consider untimely arguments
Whether an agency must consult based on unexercised regulatory powers WildEarth: EPA’s broader statutory discretion to regulate hazardous pollutants meant the FIP could implicate ESA duties EPA/APS: ESA consultation duty attaches only to the agency action as defined; EPA’s step-by-step, bounded action (BART for NOx/PM) did not include direct regulation of hazardous air pollutants Held: Duty to consult is limited to the specific agency action; EPA had no duty to consult about regulating mercury/selenium in this FIP

Key Cases Cited

  • Oklahoma v. U.S. EPA, 723 F.3d 1201 (10th Cir.) (context on regional-haze program goals)
  • Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010) (consultation threshold analysis)
  • Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (options after biological opinion finding of jeopardy)
  • Copar Pumice Co. v. Tidwell, 603 F.3d 780 (10th Cir. 2010) (mootness—real-world effect requirement)
  • Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007) (refusal to consider issues not in opening brief)
  • Summers v. Earth Island Inst., 555 U.S. 488 (2009) (Article III standing limits)
  • Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (standing: injury, causation, redressability)
  • Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing and procedural injury principles)
  • S. Utah Wilderness Alliance v. Office of Surface Mining, 620 F.3d 1227 (10th Cir. 2010) (procedural injury and redressability)
  • Arizona Public Service Co. v. U.S. EPA, 562 F.3d 1116 (10th Cir. 2009) (EPA may regulate in steps under Tribal Authority Rule)
  • Western Watersheds Project v. Matejko, 468 F.3d 1099 (9th Cir. 2006) (agency inaction is not an ESA "action")
  • Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115 (10th Cir. 2009) (failure to exercise authority not NEPA-triggering action)
  • Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) (procedural-relief redressability standard)
  • Sierra Club v. EPA, 699 F.3d 530 (D.C. Cir. 2012) (procedural challenge standing analysis)
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