State of NORTH DAKOTA, Petitioner v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Lisa P. Jackson, Administrator, Respondent. Basin Electric Power Cooperative, Intervenor. Great River Energy, Petitioner v. United States Environmental Protection Agency, and Lisa P. Jackson, Administrator, Respondent. Basin Electric Power Cooperative, Intervenor. National Parks Conservation Association; Sierra Club, Petitioners v. United States Environmental Protection Agency; Lisa P. Jackson, Administrator, United States Environmental Protection Agency, Respondents. Basin Electric Power Cooperative; Great River Energy; Minnkota Power Cooperative; Square Butte Electric Cooperative; State of North Dakota, Intervenors.
Nos. 12-1844, 12-1961, 12-2331
United States Court of Appeals, Eighth Circuit.
Submitted: May 14, 2013. Filed: Sept. 23, 2013.
730 F.3d 750
Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
Montana-Dakota Utilities Co., A Division of MDU Resources Group, Inc.; Northern Municipal Power Agency; Northwestern Corporation, doing business as NorthWestern Energy; Otter Tail Power Company, Amici on Behalf of Respondent.
The Supreme Court has declared that it is unconstitutional for prison officials to act deliberately indifferent to an inmate‘s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). And, we have recognized that a reasonable officer would know that it is unlawful to delay medical treatment for a detainee exhibiting obvious signs of medical distress. Gordon v. Frank, 454 F.3d 858, 863 (8th Cir.2006). Given this precedent, a reasonable officer would have known that a constitutional violation occurs by deliberately disregarding Johnny‘s serious medical needs in the circumstances Officer King confronted. Therefore, because the constitutional right was clearly established, the district court properly denied Officer King qualified immunity.
III. CONCLUSION
For the forgoing reasons, we reverse the district court‘s qualified immunity determination as to Officer Furr, affirm the district court‘s determination as to Officer King, and remand for further proceedings.
Samara L. Kline, argued, Dallas, TX, William M. Bumpers and Michael B. Heister, Washington, DC, on the brief, for Petitioner Great River Energy in 12-1961.
Abigail M. Dillen, argued, New York, N.Y., Matthew Gerhart and Jocelyn D‘Ambrosio, on the brief, for Petitioners National Parks Conservation Association and Sierra Club in 12-2331.
Alan D. Greenberg, argued, Denver, CO, Ignacia S. Moreno, AAG, on the brief, for respondent.
Paul M. Seby, Special AAG, argued, Denver, CO Margaret I. Olson, AAG, Bismarck, ND, on the brief, for Intervenor State of North Dakota in 12-2331.
Patrick D. Traylor, Dennis L. Arfmann, Washington, DC, on the brief, for Intervenor Minnkota Power Cooperative and Square Butte Electric Cooperative in 12-2331.
Patrick R. Day, Cheyenne, WY, Denise W. Kennedy, Christopher L. Colclasure, Denver, CO, on the brief, for Intervenor Basin Electric Power Cooperative in 12-2331.
WOLLMAN, Circuit Judge.
In these consolidated petitions for review, the State of North Dakota (State), Great River Energy, and National Parks Conservation Association and Sierra Club (collectively Environmental Groups) challenge the final rule promulgated by Environmental Protection Agency (EPA) on April 6, 2012, see 77 Fed.Reg. 20,894-945 (the Final Rule). The Final Rule approved in part and disapproved in part two state implementation plans (SIPs) submitted by the State to address its obligations under §§ 110 and 169A of the Clean Air Act (CAA),
I. Background
A. Statutory Background
“[I]n 1977, ‘[i]n response to a growing awareness that visibility was rapidly deteriorating in many places, such as wilderness areas and national parks,’ Congress added § 169A to the [Clean Air Act.]” Am. Corn Growers Ass‘n v. EPA, 291 F.3d 1, 3 (D.C.Cir.2002) (per curiam) (second alteration in original) (internal citation omitted) (quoting Chevron U.S.A., Inc. v. EPA, 658 F.2d 271, 272 (5th Cir.1981)). “Section 169A established as a national goal the ‘prevention of any future, and the remedying of any existing, impairment in visibility in mandatory class I areas which impairment results from manmade air pollution.‘” Id. (quoting Clean Air Act Amendments of 1977, Pub.L. No. 95-95, § 128, 91 Stat. 685, 742 (current version at
Under the regional haze regulations promulgated by EPA, a state “must establish goals (expressed in deciviews) that provide for reasonable progress towards achieving natural visibility conditions” in “each mandatory Class I Federal area located within the State[.]”1
In addition to the reasonable progress goals, § 169A and the regional haze regulations require states to determine the best available retrofit technology (BART) for certain major stationary sources built between 1962 and 1977 that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. See
The CAA also “charges EPA with setting National Ambient Air Quality Standards, or NAAQS, which prescribe the maximum permissible levels of common pollutants in the ambient air.” EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 12 (D.C.Cir.2012). “The States implement the NAAQS within their borders through SIPs.” Id. at 13. The CAA requires states to submit revised SIPs to address new or revised NAAQS within three years after promulgation of the NAAQS.
B. Procedural Background
The State submitted its interstate transport SIP for EPA approval on April 6, 2009, and submitted its regional haze SIP on March 3, 2010. The State submitted a SIP Supplement No. 1 on July 27, 2010, and also a SIP Amendment No. 1 on July 28, 2011. EPA issued a proposed rule on September 21, 2011, see 76 Fed.Reg. 58,570-648 (Proposed Rule), proposing to disapprove the State‘s regional haze SIP regarding its determination of BART for the Coal Creek Station, Milton R. Young Station Units 1 and 2, and Leland Olds Station Unit 2, as well as the reasonable progress determination for the Antelope Valley Station Units 1 and 2, and to disapprove the State‘s interstate transport SIP for failure to satisfy the visibility component. Along with the proposed partial disapprovals, EPA proposed the promulgation of a FIP to address the deficiencies in the SIPs. See id. at 58,573-74.
After the public notice and comments period on the Proposed Rule was completed, EPA issued its Final Rule. See 77 Fed.Reg. 20,894-945. The Final Rule differed in one major respect from the Proposed Rule—although EPA had proposed to disapprove the State‘s BART determinations for Young Station Units 1 and 2 and Olds Station Unit 2, EPA instead decided to approve the State‘s BART determinations for those units. See 77 Fed.Reg. 20,897-98. This determination was based primarily on the decision in United States v. Minnkota Power Cooperative, Inc., 831 F.Supp.2d 1109, 1127-30 (D.N.D.2011), which concluded that the State‘s analysis of the best available control technology (BACT) for Young Station Units 1 and 2 was not unreasonable—a conclusion contrary to EPA‘s position at the time of EPA‘s Proposed Rule.
Because Minnkota was issued after the public notice and comments period had closed on EPA‘s Proposed Rule, interested parties were unable to comment on EPA‘s decision to rely upon it as persuasive au-
II. Discussion
A. Standard of Review
We will set aside EPA‘s Final Rule if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”
B. Simultaneous Denial of a SIP and Promulgation of a FIP
The State first contends that the Final Rule should be vacated because EPA procedurally erred under the CAA by simultaneously disapproving the State‘s SIP and promulgating its FIP in the same Final Rule. Under the CAA, reversal of an action because of procedural error is appropriate only when (1) the failure to observe the procedure is arbitrary or capricious; (2) the alleged error was raised during the comment period; and (3) the error was so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if the error had not been made.
Among other things, § 7607(d)(3) requires that a proposed rule under the CAA contain a statement of basis and purpose, which must include a summary of the factual data on which the proposed rule is based, the methodology used in obtaining the data and in analyzing the data, and the major legal interpretations and policy considerations underlying the proposed rule. The State argues that a proper statement of basis and purpose for EPA‘s FIP could not be issued until a final rulemaking on its SIP was issued. Even assuming that the State‘s interpretation of § 7607(d)(3) is correct, the State has failed to demonstrate that EPA‘s error in this regard was “so serious and related to matters of such
C. Coal Creek Station
The State and Great River Energy, the owner of the Coal Creek Station, challenge EPA‘s disapproval of the State‘s SIP determination that modified and additional separated overfire air with low NOx burner (SOFA plus LNB) with an emission limit of 0.17lb/MMBtu on a thirty-day rolling average basis was BART for the Coal Creek Station. These petitioners also challenge EPA‘s FIP determination that selective non-catalytic reduction (SNCR) plus SOFA plus LNB with an emission limit of 0.13lb/MMBtu on a thirty-day rolling average is BART for the Coal Creek Station.
Energy production at the Coal Creek Station creates a by-product known as fly ash. Great River Energy is able to sell the fly ash created at the Coal Creek Station to construction companies to be used as a replacement for cement in the creation of concrete. During its BART analysis for the Coal Creek Station, the State concluded that using SNCR to control additional emissions at the plant would result in ammonia slip, which in turn would contaminate the fly ash, making it unsuitable for use in concrete. The State thus concluded that SNCR would cause Great River Energy to lose revenue from the sale of fly ash and would result in additional costs to dispose of the fly ash in landfills.
The State requested information regarding fly ash sales from Great River Energy, which informed the State that it received $36 per ton of fly ash sold. The State used this information to calculate the estimated cost effectiveness of implementing SNCR as $8,551 per-ton-of-NOx removed. This estimate included the cost of lost fly ash revenue and the additional cost of disposing the unusable fly ash. See Great River Energy Add. 57. The State calculated the cost effectiveness of SOFA plus LNB as $411 per-ton-of-NOx removed. Id. The State concluded that the incremental cost of SNCR over SOFA plus LNB was excessive, but that if fly ash sales were not lost using SNCR, that the cost would not be considered excessive. Id. at 61. The State also found that the incremental improvement in visibility of SNCR over SOFA plus LNB was only 0.105 deciviews. The State concluded that “[b]ecause of the potential for lost sales of fly ash, the negative environmental effects of having to dispose of the fly ash instead of recycling it into concrete, and the very small amount of visibility improvement from the use of SNCR, this option is rejected as BART.” Id. Instead, the State proposed that “BART is represented by modified and additional SOFA plus LNB[.]” Id.
During its review of the State‘s BART analysis for the Coal Creek Station, EPA identified a possible discrepancy regarding the projected costs associated with SNCR and requested additional information from Great River Energy to support its predictions on lost fly ash revenue. Great River Energy discovered that it had made a mistake in its disclosure to the State by stating that it received $36 per ton of fly ash in revenue, when its actual revenue from fly ash was only $5 per ton. On July 16, 2011, Great River Energy submitted corrected data regarding lost fly ash revenue, resulting in a projected cost effectiveness of SNCR as $2,318 per-ton-of-NOx
Having disapproved the State‘s BART determination, EPA proposed to promulgate a FIP imposing its own BART determination for the Coal Creek Station. After conducting its own BART analysis based upon the State‘s baseline emissions numbers for the Coal Creek Station established in 2003-2004, as well as the corrected lost fly ash revenue projections, EPA proposed to find that BART was SNCR plus SOFA plus LNB with an emission limit of 0.12lb/MMBtu on a thirty-day rolling average. 76 Fed.Reg. 58,622. Great River Energy submitted several comments on EPA‘s proposed BART determination, including its objections to EPA‘s calculations regarding cost effectiveness on the ground that EPA had failed to consider existing control technology in use at the Coal Creek Station. See, e.g., 77 Fed.Reg. 20,927. From 2006 to 2009, Great River Energy tested a prototype pollution control technology that is now known as Dry-Fining™. Great River Energy voluntarily installed a full version of the technology at the Coal Creek Station in 2009, two years prior to EPA‘s proposed BART determination. EPA acknowledged Great River Energy‘s comments but concluded that it was not required to consider voluntarily installed control technology that was installed after the baseline period. 77 Fed.Reg. 20,918. EPA‘s Final Rule concluded that BART was SNCR plus SOFA plus LNB, but determined that the emission limit should be 0.13lb/MMBtu on a thirty-day rolling average. 77 Fed.Reg. 20,899.
1. Disapproval of the State‘s BART determination
The State and Great River Energy contend that EPA‘s disapproval of the State‘s BART determination for the Coal Creek Station was arbitrary, capricious, and an abuse of discretion. They contend that because EPA is required to approve a SIP submission that meets all of the requirements of § 169A, see
EPA contends that it possessed the authority to disapprove the State‘s BART determination because the State had failed to consider, in any meaningful sense, the cost of compliance, which is a factor that a state must consider under the statute and the applicable guidelines. See
Although the CAA grants states the primary role of determining the appropriate
We see little difference between the rejection of a factor containing methodological flaws that led to an overestimated cost of compliance, as occurred in Oklahoma v. EPA, and the rejection of a factor containing data flaws that led to an overestimated cost of compliance, as occurred in this case. In both cases, the flaw in the analysis prevented the state from conducting a meaningful consideration of the factor, as required by the BART guidelines. As did the Supreme Court in its § 167 analysis in Alaska Department of Environmental Conservation, we reject the argument that EPA is required under § 169A to approve a BART determination that is based upon an analysis that is neither reasoned nor moored to the CAA‘s provisions. At oral argument, the State all but conceded EPA‘s ability to review the substantive content of the BART determination when it acknowledged that EPA would have the authority to disapprove a SIP if the state plainly proceeded without a sufficient factual basis. Accordingly, we conclude that EPA‘s disapproval of the State‘s BART determination for failing to consider the cost of compliance as required under the statute and the BART guidelines was neither arbitrary, capricious, nor an abuse of discretion.2
The State argues in the alternative that EPA‘s decision was arbitrary and capricious because it prematurely rejected the State‘s SIP based upon the data error in the cost of compliance factor before the State could supplement its SIP and address the data error. The State contends
Under
2. Promulgation of a FIP for the Coal Creek Station
In light of its decision to disapprove the State‘s SIP related to its BART determination for the Coal Creek Station, EPA was obligated under the CAA to promulgate a FIP within two years of the disapproval “unless the State correct[ed] the deficiency, and the Administrator approve[d] the plan or plan revision, before the Administrator promulgate[d] such Federal implementation plan.”
EPA contends that it was not required to consider the voluntarily installed pollution controls at the Coal Creek Station,
Chevron deference is appropriate when an agency exercises its generally conferred authority to resolve a particular statutory ambiguity and the resulting interpretation is based on a permissible construction of the statute. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. To determine if an agency interpretation is entitled to Chevron deference,
[W]e ask first whether the intent of Congress is clear as to the precise question at issue. If, by employing traditional tools of statutory construction, we determine that Congress’ intent is clear, that is the end of the matter. But if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency‘s answer is based on a permissible construction of the statute. If the agency‘s reading fills a gap or defines a term in a reasonable way in light of the Legislature‘s design, we give that reading controlling weight, even if it is not the answer the court would have reached if the question initially had arisen in a judicial proceeding.
Baptist Health v. Thompson, 458 F.3d 768, 773 (8th Cir.2006) (alteration in original) (citations omitted in original) (internal quotation marks omitted).
Under the first step of the Chevron analysis, we employ the traditional tools of statutory interpretation to determine whether the statute makes clear the intent of Congress as to the meaning of the phrase “any existing pollution control technology in use at the source.”
The Supreme Court has acknowledged that “‘any’ can and does mean different things depending upon the setting.” Nixon v. Mo. Mun. League, 541 U.S. 125, 132, 124 S.Ct. 1555, 158 L.Ed.2d 291 (2004). Nevertheless, “[i]n a series of cases, the Supreme Court has drawn upon the word ‘any’ to give the word it modifies an ‘expansive meaning’ when there is ‘no reason to contravene the clause‘s obvious meaning.‘” New York v. EPA, 443 F.3d 880, 885 (D.C.Cir.2006) (quoting Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 31-32, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004)). This line of cases adopting an expansive meaning includes the interpretation of the term “any” under § 307(b)(1) of the CAA,
Because we find no ambiguity in the kind of technologies that must be considered under § 7491(g)(2), EPA‘s interpretation that it was not required to consider the existing pollution control technologies in use at the Coal Creek Station is entitled to no deference. Just as the State was required to properly consider each statutory factor in the BART analysis in the implementation of its SIP, so too was EPA in the promulgation of its FIP. Accordingly, EPA‘s refusal to consider the existing pollution control technology in use at the Coal Creek Station because it had been voluntarily installed was arbitrary and capricious and its FIP promulgating SNCR as BART for the Coal Creek Station is therefore vacated.
D. Antelope Valley Station
The State challenges EPA‘s disapproval of its reasonable progress determination for Antelope Valley Station Units 1 and 2 and EPA‘s subsequent promulgation of a FIP.
As discussed above, the CAA requires that states make determinations of reasonable progress for achieving natural visibility in Class I Federal areas. The state is required to analyze and determine the rate of progress necessary to achieve natural visibility conditions in the mandatory Class I Federal areas by the year 2064 and “consider the uniform rate of improvement in visibility and the emission reduction measures needed to achieve it for the period covered by the implementation plan.”
When the State established its reasonable progress goals for the Theodore Roosevelt National Park and Lostwood Wilderness Areas it determined that additional pollution control technologies for Antelope Valley Station Units 1 and 2 were unnecessary to achieve reasonable progress. The State reached this conclusion after examining the four statutory factors that must be taken into account in determining reasonable progress under § 7491(g)(1): costs of compliance; the time necessary for compliance; the energy and non-air quality environmental impacts of compliance; and the remaining useful life of the units—as well as one nonstatutory factor, incremental visibility improvement. In its analysis of the projected improvement in visibility, the State created and used its own cumulative source visibility model, which employs current degraded background visibility conditions as its baseline. Using the cumulative source visibility model, the State concluded that the maximum combined improvement for the average of the 20% worst days was 0.11 deciviews at Lostwood Wilderness Area and 0.08 deciviews at Theodore Roosevelt National Park. The State then chose to evaluate the cost effectiveness of additional controls at Antelope Valley using the dollar-per-deciview of improvement metric rather than the more conventional dollar-per-ton-of-NOx removed metric. With the visibility numbers calculated using the cumulative source visibility model, the State found that the cost effectiveness of additional controls would be 618 million dollars-per-deciview of improvement at Lostwood Wilderness Area and 2.3 billion dollars-per-deciview of improvement at Theodore Roosevelt National Park. The State found these costs excessive and determined that installing additional controls at the Antelope Valley Station was not reasonable.
EPA proposed to disapprove the State‘s determination, concluding that the decision not to install additional controls was unreasonable in light of the State‘s admission that it could not meet the uniform rate of progress to restore natural visibility in Class I Federal areas by 2064. EPA took issue with two aspects of the State‘s reasonable progress determination: the results of the State‘s incremental visibility improvement analysis and the results of the State‘s cost effectiveness analysis. Both sets of results were based upon the State‘s use of its cumulative source visibility modeling. In the Proposed Rule, EPA found “that North Dakota‘s visibility modeling significantly understates the visibility improvement that would be realized for the control options under consideration.” 76 Fed.Reg. 58,627. EPA concluded:
While it is reasonable for a state to consider visibility improvement as an additional factor in its reasonable progress analysis when evaluating visibility benefits from potential control options at individual sources, it is not appropriate to assume degraded background conditions, as the State did. As we note above, using degraded rather than natural background in the modeling produces estimates that greatly underestimate the benefits of potential control options. The ultimate goal of the regional haze program is to achieve natural visibility conditions, not to preserve degraded conditions.
76 Fed.Reg. 58,629. EPA also found that because of the greatly underestimated improvement in visibility attributable to the State‘s visibility model, that “cost effectiveness values, when expressed in dollars per deciview, were overestimated.” Id. EPA thus proposed to disapprove the reasonable progress determination for Antelope Valley Station Units 1 and 2. In its place, EPA proposed to promulgate a FIP determining that separated overfire air plus low NOx burners (SOFA + LNB) with an emission limit of 0.17 lb/MMBtu on a thirty-day rolling average represented reasonable progress for Units 1 and 2. 76 Fed.Reg. 58,632. EPA concluded that this technology would cost approximately $586 and $661 per-ton-of-NOx removed at Units 1 and 2 and would result in the total removal of approximately 3,500 tons of NOx per unit per year. Id.
The State challenges EPA‘s disapproval of its reasonable progress determination, contending that EPA‘s rejection of the incremental visibility improvement results and the dollars-per-deciview of improvement results based upon the State‘s cumulative source visibility modeling was arbitrary, capricious, and an abuse of discretion. Because this was a reasonable progress determination, the State contends that it was not obligated to use the single source visibility model required under the BART Guidelines and that it could instead develop and utilize its own visibility model. EPA concedes that the State was not obligated to use EPA‘s single source visibility model, but argues that if a state chooses to consider incremental visibility improvement in the reasonable progress context, it must do so in a manner that is consistent with the CAA.
As discussed above, EPA‘s review of a SIP extends not only to whether the state considered the necessary factors in its determination, but also to whether the determination is one that is reasonably moored to the CAA‘s provisions. See ante 760-62. This is especially true when a state is obligated to demonstrate that its determination is one that is reasonable, as was the case here. See
The State‘s determination that no additional NOx controls were necessary for Antelope Valley Station Units 1 and 2 was based primarily on the lack of incremental visibility improvement expected from the installation of the technology and its excessive cost effectiveness on a dollars-per-deciview of improvement metric. Each of these conclusions, however, was reached through the use of the State‘s cumulative source visibility modeling. Although the State was free to employ its own visibility model and to consider visibility improvement in its reasonable progress determinations, it was not free to do so in a manner that was inconsistent with the CAA. Because the goal of § 169A is to attain natural visibility conditions in mandatory Class I Federal areas, see
Although the State has challenged EPA‘s promulgation of its FIP—concluding that reasonable progress for Antelope Valley Station Units 1 and 2 was SOFA+LNB with a 0.17 lb/MMBtu emission limit on a thirty-day rolling average—it has done so only on procedural grounds, arguing that because the disapproval of the SIP was improper, so too was the promulgation of the FIP. Because we conclude that EPA properly disapproved the State‘s reasonable progress determination, the State‘s challenge to the FIP necessarily fails. Accordingly, the State‘s petition for review of EPA‘s disapproval of the State‘s SIP and promulgation of a FIP is denied.
The Environmental Groups challenge EPA‘s approval of the 0.50 lb/MMBtu emission limit as reasonable progress for the Coyote Station.
As part of its regional haze SIP, the State conducted a reasonable progress determination for the Coyote Station. During this determination, the State evaluated several possible pollution control technologies, including advanced separated overfire air (ASOFA). The State estimated that installing ASOFA would result in a 40% reduction of NOx emissions. Although the State determined that ASOFA would result in a cost effectiveness of $246 per-ton-of-NOx removed, it concluded that the more appropriate measure of cost effectiveness for determining reasonable progress was expressed in dollars-per-deciview of improvement. Using its own visibility modeling discussed above, the State calculated a combined maximum improvement in deciviews over the 20% worst days at Lostwood Wilderness Area and Theodore Roosevelt National Park. As with the determination for Antelope Valley Station Units 1 and 2, the State used the projected visibility improvements to calculate the cumulative cost effectiveness of additional technologies of approximately 618 million dollars-per-deciview of improvement at Lostwood Wilderness Area and 2.3 billion dollars-per-deciview of improvement at Theodore Roosevelt National Park. Based upon these cost effectiveness calculations, the State concluded that no additional NOx controls were reasonably necessary at the Coyote Station.
Notwithstanding this conclusion, the State engaged in negotiations with the owner of the Coyote Station, reaching an agreement that established an NOx emission limit of 0.50 lb/MMBtu on a thirty-day rolling average. This emission limit would be satisfied through the installation of additional pollution controls, assumed to be overfire air (OFA), that would remove approximately 4,213 tons of NOx, which represents an approximate 32% decrease in emissions from the station‘s 2000-2004 baseline. This agreement was made enforceable through a permit for construction at the Coyote Station and was submitted with the State‘s SIP.
In its review of the State‘s reasonable progress determination, EPA concluded that the State had unreasonably rejected ASOFA as a potential technology representing reasonable progress because its decision was based on the same cumulative source visibility modeling discussed above. See 76 Fed.Reg. 58,630. Unlike the determination involving the Antelope Valley Station, however, the State nevertheless had included in its SIP an emission limit for the Coyote Station. EPA found the following:
[W]e continue to disagree with the manner in which North Dakota evaluated visibility improvement when it evaluated single source controls and have disregarded this evaluation in our consideration of the reasonableness of North Dakota‘s reasonable progress control determinations. We also disagree with some of North Dakota‘s legal conclusions about the necessity of reasonable progress controls for certain sources—specifically, for Coyote Station for NOx and for Heskett Station 2 for sulfur dioxide (SO2). However, in these instances, North Dakota nonetheless included emission limits in the SIP that reflect reasonable levels of control for reasonable progress for this initial planning period. Here again, we understand that there is room for disagreement about the State‘s analyses and appropriate limits. And, again, we may have reached different conclusions had we been performing the determinations. However, the comments have not convinced us that the State, con-
ducting specific case-by-case analyses for the relevant units, made unreasonable determinations for this initial planning period or that we should be disapproving the State‘s reasonable progress determinations that we proposed to approve.
77 Fed.Reg. 20,899. Therefore, after “disregard[ing] the State‘s visibility analysis ... and instead focus[ing] on the four reasonable progress factors[,]” EPA concluded that the State‘s proposed 0.50 lb/MMBtu emission limit was not unreasonable. 77 Fed.Reg. 20,937.
The Environmental Groups first argue that EPA‘s approval of the 0.50 lb/MMBtu emission limit as reasonable progress was arbitrary, capricious, and an abuse of discretion because EPA could not find that the State unreasonably rejected ASOFA as a potential technology representing reasonable progress, while simultaneously approving the more lax 0.50 lb/MMBtu emission limit. But EPA‘s finding that the State unreasonably rejected ASOFA on the ground that it was not cost effective has no bearing on whether the emission limit was itself reasonable progress. EPA‘s implicit conclusion that ASOFA would have been technology representing reasonable progress does not mean that EPA concluded that ASOFA was the only technology representing reasonable progress. Even if ASOFA were perhaps the most reasonable technology available, the CAA requires only that a state establish reasonable progress, not the most reasonable progress. EPA acknowledged that had it been making the decision in the first instance, it perhaps would have chosen ASOFA, but concluded that was not its decision to make. Given the procedural posture, EPA was obligated to review the State‘s decision to ensure that the State‘s determination represented reasonable progress, which it concluded the State had done. We thus find nothing arbitrary about EPA‘s conclusion that ASOFA would have represented reasonable progress and its ultimate determination that the 0.50 lb/MMBtu emission limit contained in the SIP also represented reasonable progress.
The Environmental Groups argue in the alternative that EPA‘s decision approving the emission limit lacked a reasoned basis and therefore must be vacated. “While we may not supply a reasoned basis for the agency‘s action that the agency itself has not given, ... we will uphold a decision of less than ideal clarity if the agency‘s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) (internal citation omitted). In its consideration of the emission limit as reasonable progress, EPA disregarded the State‘s visibility modeling and instead evaluated the emission limit against the four statutory factors for reasonable progress. See 77 Fed.Reg. 20,937. In the Proposed Rule, EPA acknowledged that ASOFA was estimated to reduce emissions by approximately 40%, see 76 Fed.Reg. 58,626, but also acknowledged that the emission limit established for the Coyote Station was estimated to reduce emissions by approximately 32%, see 76 Fed.Reg. 58,628. Furthermore, OFA technology might well be considered cost effective in light of EPA‘s conclusion that the more advanced version of the technology ASOFA was cost effective. Thus, although EPA‘s decision in this instance is not a model of clarity, we nonetheless can discern its path.
Because the Environmental Groups have failed to demonstrate that EPA‘s approval of the 0.50 lb/MMBtu emission limit as reasonable progress for the Coyote Station was arbitrary, capricious, or an abuse of discretion, their petition for review of this issue is denied.
The Environmental Groups contend that EPA‘s approval of the State‘s BART determinations for Milton R. Young Station Units 1 and 2 and Leland Olds Station Unit 2 was arbitrary, capricious, and an abuse of discretion because it violated applicable notice and comments requirements and failed to provide a rational basis for EPA‘s change of position from the Proposed Rule to the Final Rule.3
The State determined during its evaluation of its regional haze obligations that these three units were subject to the BART requirements of § 169A. As discussed above, the second step in the BART Guidelines evaluation process involves the elimination of technically infeasible control technologies. See 70 Fed.Reg. 39,164. When the State conducted its BART analysis for each of these units, it eliminated selective catalytic reduction (SCR) as a potential control technology, concluding that SCR was not technically feasible for a unit that burned lignite coal in a cyclone boiler. The State thus concluded that BART for these units was SNCR. Contemporaneously, the State was also determining the best available control technology (BACT) for Young Station Units 1 and 2 pursuant to a consent decree entered into between the owner of the station, the State, and EPA under the CAA‘s Prevention of Significant Deterioration program. The consent decree gave the State the initial responsibility of determining BACT and gave EPA the authority to challenge that determination in the district court if it believed that it was unreasonable. BART and BACT both involve the elimination of technically infeasible control options, using substantially the same criteria. See 77 Fed.Reg. 20,897. In its BACT analysis, the State similarly concluded that SCR was technically infeasible because of the type of coal and type of boiler at issue and instead selected SNCR as BACT. EPA promptly challenged the State‘s BACT determination in district court, contending that SCR was a technically feasible emission control and should have been selected as BACT.
While EPA‘s petition challenging the State‘s BACT determination was pending, it proposed to disapprove the State‘s regional haze SIP, determining that BART for Young Station Units 1 and 2 and Olds Station Unit 2 was SNCR. The basis for EPA‘s proposed disapproval of the SIP mirrored its position in its petition challenging the State‘s BACT determination, namely, its belief that SCR was technically feasible and that the State‘s determination that it was not technically feasible was unreasonable. EPA acknowledged the district court proceeding in the Proposed Rule, stating that its “proposed action here pertains to BART, not BACT, is governed by CAA provisions and regulations specific to regional haze and BART, and is not governed by [the] consent decree.” 76 Fed.Reg. 58,604 n.41. EPA simultaneously proposed to promulgate a FIP finding that SCR was BART for these units. On December 21, 2011, after the notice and comment period for the Proposed Rule had closed, the district court issued its decision on EPA‘s petition challenging the State‘s BACT determination. The district court found that the State‘s conclusion that SCR was not technically feasible was not unreasonable. See Minnkota Power Co-op., 831 F.Supp.2d at 1127-30.
Thereafter, the Environmental Groups filed this petition for review, while simultaneously filing a petition for reconsideration with EPA. On November 19, 2012, after all of the petitioners had filed their initial briefs, EPA granted the Environmental Groups’ petition for reconsideration, a process that is still ongoing. On February 8, 2013, after briefing in the present case was completed, the Environmental Groups moved under
“[T]he procedural requirements of the Clean Air Act do not permit [petitioners] to raise ... objection[s] for the first time on appeal.” Appalachian Power Co. v. EPA (Appalachian Power II), 249 F.3d 1032, 1055 (D.C.Cir.2001) (first two alterations in original) (quoting Am. Petroleum Inst. v. Costle, 665 F.2d 1176, 1190-91 (D.C.Cir.1981)). “Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment ... may be raised during judicial review.”
EPA contends that the Environmental Groups’ challenges to the approval of these BART determinations are not properly before us because they are being raised for the first time on appeal. The Environmental Groups acknowledge that because they had no notice that EPA was considering approving the BART determinations prior to publication of the Final Rule they did not raise a challenge to EPA‘s approval during the rulemaking process. In such circumstances, “the CAA requires a petitioner to first raise its objection to the agency th[r]ough a petition for reconsider-
Notwithstanding the Environmental Groups’ failure to raise these objections during the rulemaking process, Intervenors Minnkota Power Cooperative, Inc. and Square Butte Electric Cooperative argue that § 7607(d)(7)(B) does not deprive us of jurisdiction. Intervenors contend that because § 7607(d)(7)(B) permits courts to stay the effectiveness of a final rule during reconsideration, it “expressly contemplates that a reviewing court retains subject matter jurisdiction over the claims during the pendency of EPA reconsideration.” Intervenors Minnkota & Square Butte Br. 52 (citing § 7607(d)(7)(B) (“Such reconsideration shall not postpone the effectiveness of the rule. The effectiveness of the rule may be stayed during such reconsideration, however, by ... the court for a period not to exceed three months.“)). Intervenors are incorrect that this section contemplates that we retain jurisdiction to hear unexhausted claims. Rather, it establishes that we retain jurisdiction over the entire final rule pending the reconsideration of unexhausted claims, and thus have the authority to postpone the effectiveness of the entire final rule.
Because the Environmental Groups’ challenges to EPA‘s approval of the State‘s BART determination for Young Station Units 1 and 2 and Olds Station Unit 2 were not raised before EPA during the rulemaking process, we conclude that we are without jurisdiction to hear them under § 7607(d)(7)(B). This conclusion renders moot the Environmental Groups’ motion to dismiss their petition for review of these matters under
G. Interstate Transport SIP
The State contends that EPA‘s disapproval of its interstate transport SIP was arbitrary, capricious, and an abuse of discretion. In July 1997, EPA promulgated new NAAQS, which triggered the State‘s obligation to submit an interstate transport SIP addressing the new standards. As discussed above, one of the elements of this SIP is the “good neighbor” provision, which contains a visibility component. See
The first paragraph of the 2006 Guidance “emphasizes that this guidance document merely provides suggestions and ... EPA may elect to follow or deviate from this guidance, as appropriate.” See id. at 1. Regarding the visibility component of the good neighbor provision, the 2006 Guidance recognized that because states’ regional haze SIPs were not due until December 17, 2007, it was “currently premature” to determine whether a state‘s SIP complies with the good neighbor provision. Id. at 9-10. Therefore, the 2006 Guidance suggested “that States may make a simple SIP submission confirming that it is not possible at this time to assess whether there is any interference with measures in the applicable SIP for another State designed to ‘protect visibility’ for the 8-hour ozone or PM2.5 NAAQS until regional haze SIPs are submitted and approved.” Id. “Thus, EPA‘s recommendation to states as of that particular point in time was that they refer to the imminent regional haze
On April 6, 2009, the State submitted a SIP revision designed to satisfy its interstate transport requirements under the CAA. The State did not substantively address the visibility component, but instead referred to the 2006 Guidance and included a placeholder submission, stating that until regional haze SIPs were submitted, it was not possible to assess whether there is any interference with measures in another state‘s applicable regional haze SIP. The State thus suggested that it planned to satisfy the visibility component through the submission of its regional haze SIP, which it submitted on March 3, 2010.
EPA reviewed the State‘s interstate transport SIP in 2011 and approved three of the four components, but disapproved the visibility component. EPA rejected the State‘s use of the placeholder submission suggested in the 2006 Guidance and found that the SIP had failed to address substantively the visibility prong. EPA also concluded that the regional haze SIP could not be used to satisfy the visibility component because it was not fully approvable. See 76 Fed.Reg. 58,642. To address the visibility component, EPA proposed to promulgate a FIP. The FIP concluded that the visibility component would be satisfied by relying on a combination of the portions of the State‘s regional haze SIP that had been approved and the FIP promulgated to replace the disapproved portions of the regional haze SIP.
The State first contends that EPA acted arbitrarily by not following its 2006 Guidance and refusing to accept its placeholder submission for the visibility component. We disagree, for the 2006 Guidance clearly placed the State on notice that EPA was not issuing binding regulations but was instead only issuing suggestions that left EPA free “to follow or deviate from this guidance, as appropriate.” 2006 Guidance at 1. Moreover, the 2006 Guidance suggested that it was “currently premature” to require a submission addressing visibility prior to the 2007 deadline for regional haze SIP submissions. This demonstrates that the 2006 Guidance contained time-sensitive suggestions. It is undisputed that the State did not submit its interstate transport SIP until 2009, well after the period discussed in the 2006 Guidance. Given the disclaimer within the 2006 Guidance that EPA was free to deviate from it, as well as the time frame during which it was issued—prior to the deadline for submitting regional haze SIPs—the State has failed to demonstrate that EPA‘s refusal to accept the State‘s placeholder statement regarding the visibility component was arbitrary, capricious, or an abuse of discretion.
The State argues in the alternative that its submission of the regional haze SIP satisfied the visibility component of the interstate transport SIP. EPA concluded, however, that because the regional haze SIP was not fully approvable, it could not satisfy the visibility component of the interstate transport SIP. The State does not challenge EPA‘s authority to disapprove the interstate transport SIP on this basis. Rather, it contends that because the regional haze SIP should have been approved as to all portions, it should have satisfied the visibility component in its interstate transport SIP. See State‘s Reply Br. 36 (“Because EPA‘s disapproval of North Dakota‘s [Coal Creek Station] BART determination and [Antelope Valley Station reasonable progress] determinations were arbitrary and capricious, so too is EPA‘s disapproval of North Dakota‘s SIP as it pertains to interstate visibility.“). Because we have concluded that EPA properly disapproved portions of the State‘s regional haze SIP, the State‘s argument on this issue fails, and thus the
III. Conclusion
We grant the State‘s and Great River Energy‘s petitions for review to the extent that they challenge EPA‘s BART determination for the Coal Creek Station promulgated in EPA‘s FIP, and we vacate and remand that portion of the Final Rule to EPA for further proceedings consistent with this opinion. We deny the remainder of the State‘s, Great River Energy‘s, and the Environmental Groups’ petitions for review, as well as the Environmental Groups’ motion for voluntary dismissal under
Steven Wayne PHILLIPS, Petitioner-Appellant, v. Debra HERNDON, Respondent-Appellee.
No. 09-56079
United States Court of Appeals, Ninth Circuit.
Argued Jan. 9, 2013. Submitted Sept. 17, 2013.