NATIONAL PARKS CONSERVATION ASSOCIATION; Sierra Club; Clean Air Council, Petitioners v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Pennsylvania Department of Environmental Protection; Homer City Generation LP, Intervenors.
No. 14-3147
United States Court of Appeals, Third Circuit
Argued April 14, 2015. Opinion Filed: Sept. 29, 2015.
803 F.3d 151
Before: AMBRO, VANASKIE, and SHWARTZ, Circuit Judges.
*(Pursuant to Clerk Order dated 08/21/14).
ings with respect to Goldman‘s motion to confirm the arbitration award.
Kate R. Bowers, Esq., [Argued], United States Department of Justice Environment and Natural Resources Division, Washington, DC, Regina McCarthy, Esq., Environmental Protection Agency, Ariel Rios Building, Washington, DC, Counsel for Respondent.
Robert A. Reiley, Esq. [Argued], Kristen M. Furlan, Esq., Pennsylvania Department of Environmental Resources, Office of Chief Counsel, Harrisburg, PA, Counsel
Chet M. Thompson, Esq. [Argued], Kirsten L. Nathanson, Esq., Crowell & Moring, Washington, DC, Counsel for Intervenor Homer City Generation LP.
OPINION OF THE COURT
VANASKIE, Circuit Judge.
Section 169A of the Clean Air Act,
Alleging that the EPA‘s approval of Pennsylvania‘s SIP was arbitrary and capricious, the National Parks Conservation Association, Sierra Club, and Clean Air Council (collectively, “Conservation Groups“) filed the petition for review presently before the Court. For the reasons that follow, we will grant the petition in part and deny it in part, and remand the matter to the EPA for further consideration.
I.
A. Statutory and Regulatory Framework
In 1970, Congress enacted the Clean Air Act,
As originally enacted, the Clean Air Act “did not elaborate on the protection of visibility as an air-quality related value.” Chevron U.S.A., Inc. v. EPA, 658 F.2d 271, 272 (5th Cir. 1981) (emphasis added). In 1977, however, Congress added
In connection with
Section 169A and the Regional Haze Rule also require each SIP to include a determination of the best available retrofit technology (“BART“) for certain major stationary sources of pollution that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. North Dakota v. EPA, 730 F.3d 750, 756 (8th Cir. 2013) (citing
To satisfy the BART requirements, a state‘s SIP must first identify all “BART-eligible” sources within its borders. Under the regulations, a stationary source of air pollution is BART-eligible if it: (1) was in existence on August 7, 1977, but not in operation prior to August 7, 1962; (2) fits within one of 26 identified categories; and (3) has the potential to emit annually at least 250 tons of any air pollutant.
Next, a state‘s SIP must determine which of these BART-eligible sources are “subject to BART.” A source is subject to BART if it “emits any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandatory Class I Federal area.”
For each BART-eligible source that is subject to BART, the state must conduct a source-specific analysis to determine appropriate emission limitations. In so doing, states “weigh[] the following five factors: (1) ‘the costs of compliance‘; (2) ‘the energy and non[-]air quality environmental impacts of compliance‘; (3) ‘any existing pollution control technology in use at the source‘; (4) ‘the remaining useful life of the source‘; and (5) ‘the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.‘” WildEarth Guardians v. EPA, 759 F.3d 1064, 1068 (9th Cir. 2014) (quoting
To aid states in identifying BART-eligible sources and determining appropriate emission limitations, the EPA issued the BART Guidelines, 70 Fed. Reg. 39,156. WildEarth Guardians, 759 F.3d at 1068. The Guidelines, issued in 2005, provide states with a five-step process for making their source-specific BART determinations, and these five steps subsume the statutory considerations listed above. Id. at 1068-69 (citing 70 Fed. Reg. 39,127). Under the Guidelines, a state is to first identify all available retrofit control technologies. Second, technically infeasible options are eliminated. Third, the effectiveness of the remaining control techniques is assessed. Fourth, the impacts, including the cost of compliance, energy impacts, non-air quality impacts, and the remaining useful life of the facility, are evaluated. Finally, a state must estimate the visibility impacts at Class I areas. Id. at 1069 (citing 70 Fed. Reg. 39,164, 39,166). While states are required to use the Guidelines when making BART determinations for any fossil fuel-fired power plant with a total electricity generating capacity of 750 megawatts or more, the Guidelines are advisory for smaller BART-eligible sources. Id. (citing
As an alternative to conducting this source-specific analysis, states may instead implement another program if they can demonstrate it is “better-than-BART” at reducing emissions. Specifically, the regional haze regulations permit a state to “opt to implement or require participation in an emissions trading program or other alternative measure” if it can show that the program would result in “greater reasonable progress” toward the national goal of restoring natural visibility “than would be achieved through the installation and operation of BART.”
Regardless of whether a state conducts the source-specific BART analysis or follows the better-than-BART approach, it must ultimately submit its SIP to the EPA. The EPA, in turn, must review the SIP and determine whether it meets the requirements of the Clean Air Act.
B. Procedural Background
Pennsylvania submitted its regional haze SIP to the EPA in December 2010, identifying 34 BART-eligible sources of pollution within its borders. App. 43-171. These pollution sources—various power plants, mills, refineries, and other facilities around the state—emit visibility-impairing particulate matter (“PM“) into the atmosphere, as well as the chemical precursors to PM, which include sulfur dioxide (“SO2“) and oxides of nitrogen (“NOX“). Pennsylvania elected to treat each of these 34 BART-eligible sources as subject to BART,4 and it opted to follow the five-step process outlined in the Guidelines for making source-specific BART determinations.5 Pennsylvania, however, chose to follow the better-than-BART approach with respect to the eight fossil fuel electric generating stations with a capacity of 750 megawatts or more.
Thus, Pennsylvania conducted a source-specific BART analysis regarding the SO2 and NOX emissions of each source with an electricity generating capacity below 750 megawatts, but did not do so for the fossil fuel electric generating stations having a capacity of 750 megawatts or more. Pennsylvania noted that these sources participated in the “cap and trade” program6 for SO2 and NOX emissions established by EPA Clean Air Interstate Rule (“CAIR“), 70 Fed. Reg. 25,162 (May 12, 2005), and concluded that the sources’ participation in the cap and trade program was better than BART at reducing such emissions.
Ultimately, Pennsylvania‘s SIP found that requiring additional emission controls at any of the 34 BART-eligible sources would result in only minimal visibility improvement in affected Class I areas. Weighing this minimal improvement against the cost of implementing the controls, Pennsylvania concluded that additional controls were not warranted.
In January 2012, the EPA issued a proposed rule providing for a limited approval of Pennsylvania‘s SIP (“2012 Proposed Rule“). Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Pennsylvania; Regional Haze State Implementation Plan, 77 Fed. Reg. 3,984 (Jan. 26, 2012). The EPA concluded that Pennsylvania‘s BART analysis complied with the statutory requirements of the Clean Air Act and the regional haze
On June 7, 2012, the EPA issued its final rule (the “National Rule“) in the separate proceeding referenced by the 2012 Proposed Rule, disapproving the SIPs submitted by Pennsylvania and 14 other states to the extent they relied on the CAIR program to limit SO2 and NOX emissions. Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific Best Available Retrofit Technology (BART) Determinations, Limited SIP Disapprovals, and Federal Implementation Plans, 77 Fed. Reg. 33,642 (June 7, 2012). With this disapproval, the EPA also promulgated FIPs for 13 of the states (including Pennsylvania), effectively replacing the states’ reliance on the CAIR program with reliance on the newly promulgated Cross-State Air Pollution Rule, better known as the Transport Rule. By issuing the National Rule, the EPA also finalized its conclusion that the Transport Rule was better-than-BART at reducing SO2 and NOX emissions, and that it addressed the shortcomings of the CAIR program previously identified by the United States Court of Appeals for the District of Columbia Circuit.7
Shortly thereafter, on July 13, 2012, the EPA finalized its limited approval of Pennsylvania‘s SIP. Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Regional Haze State Implementation Plan, 77 Fed. Reg. 41,279 (July 13, 2012). With this “2012 Final Rule,” the EPA responded to comments regarding the 2012 Proposed Rule and reaffirmed its conclusion that Pennsylvania‘s BART analysis was proper.
In response to the 2012 Final Rule, the Conservation Groups filed a petition for review with this Court, challenging the rule on a number of fronts. Nat‘l Parks Conservation Assoc. v. EPA, No. 12-3534. We did not reach the merits of the petition, though, since the EPA filed a motion for voluntary remand without vacatur in order to consider and respond in greater detail to the Conservation Groups’ concerns. We granted the motion on October 22, 2013, and remanded the matter to the EPA.
Following remand, the EPA entered a final rule on April 30, 2014 (“2014 Final Rule“), reissuing its limited approval of Pennsylvania‘s SIP. Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Regional Haze State Implementation Plan, 79 Fed. Reg. 24,340 (Apr. 30, 2014). With this rule, the EPA expanded its responses to certain comments and acknowledged numerous deficiencies in Pennsylvania‘s source-specific BART analysis. In the end, however, the EPA approved the SIP, finding that
This petition for review followed, with the Conservation Groups alleging that the EPA arbitrarily and capriciously approved Pennsylvania‘s SIP. We subsequently granted motions to intervene filed by the Pennsylvania Department of Environmental Protection (the state agency responsible for drafting Pennsylvania‘s SIP) and Homer City Generation, L.P., a coal-fired power plant in Indiana County, Pennsylvania.
II.
Under
When reviewing a final EPA action, we must “determine whether it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.‘” GenOn REMA, 722 F.3d at 525 (quoting
III.
A. Transport Rule
The Conservation Groups challenge the EPA‘s decision to allow Pennsylvania to rely on the Transport Rule in lieu of conducting a source-specific BART analysis regarding SO2 and NOX emissions from each source with an electricity generating capacity of at least 750 megawatts. In particular, they argue that the Transport Rule is not better-than-BART at reducing SO2 and NOX emissions, has not been implemented as the EPA assumed it would be when it permitted Pennsylvania to rely on the rule, and is subject to further delays and legal challenges.
The EPA counters that this appeal is not the appropriate vehicle to challenge its finding that the Transport Rule is better-than-BART or its decision to approve states’ reliance on this rule, as both these determinations stem from a final rule and separate rulemaking proceeding not presently before this Court. Moreover, the EPA argues that, under
Following extensive administrative proceedings, the EPA issued its National Rule on June 7, 2012. 77 Fed. Reg. 33,642. With it, the EPA finalized the emissions-limiting Transport Rule, a replacement to the CAIR program that had been invalidated by the D.C. Circuit in North Carolina v. EPA, 531 F.3d 896, 921 (D.C. Cir. 2008) (per curiam). The National Rule included the finding that the emission trading programs established by the
By contrast, the 2014 Final Rule, which the Conservation Groups challenge here, does not address the merits of the Transport Rule or Pennsylvania‘s reliance on it. Instead, it notes those issues were addressed in a “separate but related action,” referring to the National Rule. See 79 Fed. Reg. 24,340-41. Prior to issuing the 2014 Final Rule, the EPA repeatedly explained that the propriety of the Transport Rule, the CAIR program, and Pennsylvania‘s reliance on the Transport Rule or the CAIR program were beyond the scope of these rulemaking proceedings. See, e.g., 2012 Final Rule, 77 Fed. Reg. 41,282 (“Comments related to [the Transport Rule] as an alternative to BART for [electricity generating units] are beyond the scope of this rulemaking. The EPA addressed similar comments concerning the Transport Rule as a BART alternative in [the National Rule].“); 2012 Proposed Rule, 77 Fed. Reg. 3,984 (“[W]e are not taking action in this notice to address the Commonwealth‘s reliance on CAIR to meet certain regional haze requirements.“).
In short, the Conservation Groups seek to use this appeal from the administrative proceedings that culminated in the 2014 Final Rule to challenge decisions the EPA reached in separate proceedings. We find no support for this approach in the text of the Clean Air Act provision authorizing judicial review of EPA actions. See
Moreover, even if the Conservation Groups could use this appeal to challenge the Transport Rule, we are not the proper court to hear the challenge. Under
Accordingly, we will deny the Conservation Groups’ petition for review to the extent it challenges the Transport Rule or Pennsylvania‘s reliance on it.
B. Source-Specific BART Analysis
The Conservation Groups also contend that Pennsylvania‘s source-specific BART analysis failed to comply with the Guidelines in many respects, and that the EPA violated the Clean Air Act by arbitrarily approving Pennsylvania‘s SIP despite these fatal flaws. The EPA counters that Pennsylvania‘s analysis was largely proper, and that the errors it committed did not affect the reasonableness of the state‘s decision not to require its BART-eligible sources to implement additional pollution controls. In what resembles a harmless-error argument, the EPA asserts that, despite Pennsylvania‘s flawed analysis, the resulting overall picture supported its ultimate decision. As discussed below, while we reject some of the arguments advanced by the Conservation Groups, we are nevertheless compelled to conclude that the EPA arbitrarily approved Pennsylvania‘s SIP given the multiple flaws in Pennsylvania‘s BART analysis and the EPA‘s insufficient explanation as to why it could overlook them.
1. Identification of All Available Retrofit Control Technologies
The Conservation Groups contend that Pennsylvania failed to satisfy the BART requirement of identifying all available pollution control technologies. In particular, they argue that the state did not consider upgrades to existing electrostatic precipitator (“ESP“) control technologies for BART-eligible power plants within the state, or other available combinations of controls.
The EPA counters that Pennsylvania‘s SIP notes that ESP upgrades were considered for all but two power plants, and that Pennsylvania had declined to consider upgrades at those two facilities because they had recently installed “state-of-the-art” ESP controls. The EPA also argues that Pennsylvania did consider combinations of controls, including fabric filters on sources where technically feasible.
While we agree with the EPA that Pennsylvania‘s SIP states that upgrades and combinations were considered, we cannot discern from the administrative record the specifics of Pennsylvania‘s analysis or why it rejected certain upgrades or combinations. As the Conservation Groups noted in their comments to the 2012 Final Rule, App. 487, Pennsylvania‘s SIP states in conclusory fashion that ESP upgrades,
2. Baseline Level for PM Emissions
The Conservation Groups next challenge Pennsylvania‘s source-specific BART analysis regarding PM emissions from 13 power plants. Specifically, they contend the state improperly concluded that the filterable emission limit of 0.1 pound of particulate matter per million British thermal units (“0.1 lb/MMBtu“) represents BART for those facilities.9 The Conservation Groups argue the limit is not sufficiently stringent, and note that lower limits (between 0.07 lb/MMBtu and 0.012 lb/MMBtu) have qualified as BART at other facilities. In short, they assert that Pennsylvania had no reasoned basis for selecting the emission limit that it did, and that the EPA arbitrarily approved Pennsylvania‘s BART analysis regarding PM emissions predicated on this threshold.
In the 2014 Final Rule, the EPA concedes that Pennsylvania failed to determine whether the 0.1 lb/MMBtu emission limit actually represents BART for those facilities. See 79 Fed. Reg. 24,344 (“Here, Pennsylvania determined that PM BART for most of the subject-to-BART [electricity generating units] was their existing permitted emission limits of 0.1 lb/MMBtu, which can be achieved by the existing [control technology]. While the EPA agrees with the commenter that Pennsylvania ideally should have examined whether 0.1 lb/MMBtu actually reflects the ‘degree of reduction achievable’ for the particular [control technology] at each facility, EPA thinks that Pennsylvania‘s failure to do so was not fatal in this instance....“) (footnote omitted). The EPA excuses this failure for two reasons. First, it argues that Pennsylvania‘s error was essentially harmless, as imposing a stricter PM emission limit on these sources would have minimal visibility impact in Class I areas since the PM emissions from these sources were responsible for only a minimal portion of the visibility impairment in these areas. Second, the EPA claims that the issue is “largely moot[].”
We find the EPA‘s arguments unconvincing. As discussed in greater detail infra, Part III.B.7, the EPA‘s claim of harmless error is unpersuasive since the agency has offered scant justification for this position, apart from its own assurances that the multiple flaws in Pennsylvania‘s analysis did not impact the reasonableness of its conclusions. Similarly, the EPA has not identified, nor have we located, any legal support for the EPA‘s contention that it may excuse errors in a state‘s BART analysis as moot based on events that are yet to transpire. To the contrary, the EPA has a statutory obligation to disapprove a SIP that does not comply with the Clean Air Act and to promulgate a FIP if the deficiencies are not timely cured. See
3. Alternative Pollution Control Limits: BACT, LAER, and MACT
The Conservation Groups also contend Pennsylvania‘s BART analysis regarding PM emissions did not comply with the Guidelines because the state did not consider more stringent emission limits developed as part of separate air quality permitting processes under the Clean Air Act. In particular, they argue that limits imposed by other programs—known as best available control technology (“BACT“), lowest achievable emission rate (“LAER“), and maximum achievable control technology (“MACT“)—are relevant to the BART analysis because they demonstrate achievable emission reductions.10
In response, the EPA notes that the BART Guidelines do not require states to consider the exact emission limits determined to be BACT and LAER. Instead, they must consider the technologies used to achieve BACT and LAER when conducting the first step of the BART analysis: identifying all available control technologies for their pollution sources. See BART Guidelines,
The EPA also notes that, for sources of PM emissions that are subject to MACT standards, the BART Guidelines permit—but do not require—states to rely on the stringent MACT standards for purposes of BART. In other words, the Guidelines create a presumption that a state‘s reliance on the MACT standards satisfies BART, but they do not require the state to rely on the MACT standard to satisfy BART. See BART Guidelines,
We agree with the EPA‘s reading of the BART Guidelines on these points. As a result, we reject the Conservation Groups’ contention that Pennsylvania improperly failed to consider BACT, LAER, and MACT emission limitations.
4. Cost-Effectiveness Threshold
The Conservation Groups argue that Pennsylvania failed to properly evaluate the cost-effectiveness of the pollution controls available for each BART-eligible source. In particular, they note that Pennsylvania did not set a “threshold” for cost-effectiveness—that is, an amount of money at which it would reject any available control option as too expensive. Absent such a threshold, the Conservation Groups contend, Pennsylvania had no principled way of determining when a pollution control was a cost-effective method of improving visibility in affected Class I areas.
The EPA asserts that nothing in the Clean Air Act requires Pennsylvania to set a fixed threshold of cost-effectiveness, and that the Guidelines make no mention of such a threshold in their instructions on how to evaluate cost-effectiveness. See BART Guidelines,
Because we agree that Pennsylvania was not compelled to set a threshold for cost-effectiveness, we conclude that the EPA did not act arbitrarily by approving Pennsylvania‘s SIP absent such a threshold.
5. Cost-Effectiveness Metric
The Conservation Groups also assert that Pennsylvania used an improper metric when calculating the cost-effectiveness of additional pollution controls. Specifically, they argue that Pennsylvania evaluated the cost of controls based on the dollars-per-deciview metric rather than the dollars-per-ton metric required by the Guidelines.11 The Conservation Groups contend
In responding to this argument during the notice-and-comment period and now on appeal, the EPA has taken seemingly inconsistent positions. In the text of the 2014 Final Rule, the EPA states, without elaboration, that Pennsylvania‘s use of the dollars-per-deciview metric was “flawed.” 2014 Final Rule, 79 Fed. Reg. 24,342 (stating that “EPA agrees with the commenters that Pennsylvania‘s reliance on the [dollars-per-deciview] metric was flawed for multiple reasons“). On appeal, however, the EPA responds that the Guidelines specify that cost-effectiveness calculations be expressed in terms of dollars-per-ton, but they do not forbid the consideration of the dollars-per-deciview metric as well.12 The EPA also notes that Pennsylvania considered both metrics with respect to 33 of its 34 BART-eligible sources. Resp. Br. 46.
Our review of the EPA‘s decision is limited to the reasoning supplied in its final rule, not the justifications subsequently crafted and proffered by the agency‘s appellate counsel. See Motor Vehicle Mfrs. Ass‘n, 463 U.S. at 50 (“It is well-established that an agency‘s action must be upheld, if at all, on the basis articulated by the agency itself.“) (citations omitted); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1091 (9th Cir. 2007) (stating that “our review of an administrative agency‘s decision begins and ends with the reasoning that the agency relied upon in making that decision“). As a result, we are left with the EPA‘s conclusion that Pennsylvania‘s use of the dollars-per-deciview metric is “flawed” in multiple unidentified respects and no meaningful explanation as to why the EPA ignored these flaws. This rationale is insufficient to justify the EPA‘s approval of Pennsylvania‘s analysis of cost-effectiveness.
6. Cumulative Visibility Impact
As part of its source-specific BART analysis, Pennsylvania was required to calculate the visibility improvement that could be achieved in Class I areas by implementing additional pollution controls at its BART-eligible sources. The state‘s calculations for each source, however, took
In the 2014 Final Rule, the EPA admits that Pennsylvania should have calculated the cumulative visibility impact from its sources. 79 Fed. Reg. 24,342 (“EPA also agrees with the commenters that, in considering the visibility improvement expected from the use of controls, Pennsylvania should have taken into account the visibility impacts at all impacted Class I areas rather than focusing solely on the benefits at the most impacted area.“). The EPA contends this error, among others, was harmless, a contention we address below.
7. Harmless Error
To justify its approval of Pennsylvania‘s admittedly flawed BART analysis, the EPA advances a harmless error argument. In particular, the EPA contends it reasonably approved Pennsylvania‘s conclusion that pollution controls were not warranted as the overall picture that emerged from the state‘s analysis demonstrated that the improvement in visibility at affected Class I areas as a result of the controls would be minimal. Based on the administrative record before us, however, that conclusion is a bridge too far.
In the 2014 Final Rule, the EPA concedes that Pennsylvania‘s BART determinations contained “systemic deficiencies” and a “large number” of errors. 79 Fed. Reg. 24,341, 24,343 (quotation marks omitted). On a broad scale, the EPA acknowledges that Pennsylvania‘s SIP lacked necessary technical information and supporting documentation, and that it was insufficiently thorough.
Tellingly, the EPA concedes that these various failures impaired its ability to independently assess Pennsylvania‘s analysis. In the agency‘s own words, it has a duty under the Clean Air Act “to exercise independent technical judgment in evalu-ating
Despite the multitude of problems with Pennsylvania‘s SIP, and the EPA‘s admitted inability to adequately assess the state‘s analysis, the EPA asserts that “the information that Pennsylvania did provide” is sufficient to conclude “that Pennsylvania‘s ultimate BART determinations were nevertheless reasonable.”
As a reviewing court, we must ensure that the EPA “articulate[s] a satisfactory explanation” for its decision to approve Pennsylvania‘s SIP, “including a rational connection between the facts found and the choice made.” Prometheus Radio Project, 373 F.3d at 389-90 (citation and quotation marks omitted). The EPA‘s conclusory assertions on the issue of control costs and its invocation of its own experience addressing cost estimates do not suffice. See Natural Res. Def. Council, Inc. v. Hodel, 865 F.2d 288, 298 (D.C. Cir. 1988) (per curiam) (“[C]onclusory remarks... do not equip a decisionmaker to make an informed decision about alternative courses of action or a court to review the [agency‘s] reasoning.“); see also Ass‘n of Private Colleges & Univs. v. Duncan, 870 F. Supp. 2d 133, 154 (D.D.C. 2012) (“That this explanation could be used to justify any [determination] at all demonstrates its arbitrariness.“); Nat‘l Parks Conservation Ass‘n, 788 F.3d at 1145 (remanding where the “reasoning fails to reveal to a reader how EPA determined that the cost of controls were not justified“).
The EPA also asserts that “[w]hen the other key BART factor—visibility—is taken into account,... an overall picture emerges that supports Pennsylvania‘s BART determinations.” 2014 Final Rule,
We are unpersuaded by this reasoning. As noted above, the 2014 Final Rule repeatedly criticizes Pennsylvania‘s SIP calculations and supporting documentation, noting that the SIP is so lacking that it is difficult to assess the visibility impact calculations Pennsylvania did conduct. What the EPA could determine, however, was that Pennsylvania underestimated the impact of pollution from its sources because it failed to calculate the cumulative visibility impact from each source. The EPA now urges us to rely on these very same visibility impact calculations to conclude that the “overall picture” supports Pennsylvania‘s BART analysis. The EPA unconvincingly insists we rely on what it has said is flawed.13
In the end, the EPA has identified a host of problems with Pennsylvania‘s BART analysis. What it has not done, however, is provide a sufficient explanation as to why it overlooked these problems and approved Pennsylvania‘s SIP. Because we, as a reviewing court, need an agency to show its work before we can accept its conclusions, we will remand this case to the EPA for further consideration.
IV.
For the aforementioned reasons, we will vacate the 2014 Final Rule to the extent it approved Pennsylvania‘s source-specific BART analysis and remand to the EPA for further proceedings consistent with this Opinion.
UNITED STATES of America v. Joseph W. NAGLE, Appellant, No. 14-3184. Ernest G. Fink, Appellant, No. 14-3422.
Nos. 14-3184, 14-3422.
United States Court of Appeals, Third Circuit.
Sept. 30, 2015. Argued April 27, 2015. Filed: Sept. 30, 2015.