Oklahoma v. United States Environmental Protection Agency

City In Casey “enough merit. v. Federal This allowed him ... time to rec- the “clearly this court discussed Heights, ognize changed and react to the circum- standard in the context of ex- established” firing stances and gun.” cease his force claims: cessive circumstances, Under no have Ordinarily clearly ... for a rule to be trouble concluding Barrientos prob- lacked be a Supreme established there must Dominguez able cause to believe posed on point, Court Tenth Circuit decision threat of serious harm to Barrientos or clearly weight or the established of au- others at he time fired shots two thority from must other courts have Gamer, 11, through 3, seven. U.S. at plaintiff found law to be as the main- (“Where 105 S.Ct. 1694 the suspect poses tains. excessive because force no immediate threat officer no jurisprudence requires all-things-con- others, threat harm to resulting from inquiry sidered with “careful attention to failing apprehend him justify does not facts par- and circumstances each so.”). deadly the use of force do We case,” Graham, 396, ticular 490 U.S. at further have no trouble concluding a rea- 1865, 109 S.Ct. there almost will never sonable officer in Barrientos’s position previously published opinion be a involv- firing would have known that shots two exactly ing circumstances. same We through seven unlawful. Casey, was qualified immunity cannot find wherever Accordingly, F.3d at 1284. the district Indeed, we have a new fact pattern. court, in evaluating Barrientos’s assertion Supreme Court has warned that “offi- qualified immunity, did not err in con- can still cials be on notice that their cluding clearly Barrientos violated estab- conduct violates established law even in lished law when he fired shots two through novel factual Hope circumstances.” v. seven. Pelzer, 741, 730, U.S. S.Ct. (2002). Hope 153 L.Ed.2d 666 deci- IV. Conclusion immunity

sion shifted the qualified anal- ysis from a hunt scavenger for prior reasons, For the foregoing judgment with precisely cases the same facts to- of the district court affirmed. inquiry ward the more relevant put whether the law officials on fair

notice the described conduct

unconstitutional. (10th Cir.2007) (cita-

509 F.3d omitted). quotations

tions and According upon factual scenario which the rejection

district court based of Bar- qualified immunity,

rientos’s claim to authority

which court lacks the review, Barrientos fired six shots into a OKLAHOMA; State of Oklahoma In- who able suspect longer was “no to control Consumers, Energy dustrial an unin- vehicle, fire a escape, long gun, or to association, corporated Petitioners, thus, longer presented no have Barrientos, danger public, Deputy responding or other Mem. Op. officers.” ENVIRONMENTAL UNITED STATES shooting

& at 30. Order Prior to Domin- AGENCY, back, guez, safer, PROTECTION “stepped Barrientos felt noticed Dominguez slump.” Respondent. Mr. Intervenor-Respondent, Club, Sierra

PacifiCorp; American Coalition Electricity; National Coal

Clean Association, Ami-

Parks Conservation

ci Curiae. & Electric

Oklahoma Gas Petitioner,

Company, Environmental

United States Agency,

Protection

Respondent. Intervenor-Respondent, Club,

Sierra

PacifiCorp; American Coalition Electricity; Coal National

Clean Association, Ami-

Parks Conservation

ci Curiae. 12-9526, 12-9527.

Nos. Appeals,

United Court of States

Tenth Circuit.

July Pruitt,

E. Scott Attorney Oklahoma (P. General, Clayton Eubanks, Assistant General; Attorney Michael Graves and Estill, Thomas Tulsa, P. Schroedter of Hall OK, with briefs), him on the Oklahoma OK, City, for Petitioners State of Okla- homa and Energy- Oklahoma Industrial Consumers. Murray

Brian J. Chicago, Jones Day, (Thomas IL, E. Fennell of Day, Jones Dallas, Texas; Michael L. Rice Jones TX; Day, Houston, Charles T. Wehland Day, Chicago, IL, briefs), Jones on the for City Petitioner Oklahoma Gas & Electric Company. Talbert,

Stephanie J. United States De- Justice, partment of & Natu- Environment Division, ral Resources Environmental De- Section, Washington, (Ignacia fense D.C. Moreno, General; Attorney S. Assistant Nann, M. Lea Anderson Barbara Of Counsel, United States Environmental brief), Protection Agency, her on the Respondent. (Elena Issod, Andrea Saxonhouse and Sanjay brief), Narayan with her on the CA, Francisco, Intervenor, San Sierra Club. Jenkins,

Michael G. Assistant General Counsel, PacifiCorp Energy, Lake Salt City, Utah, Rawson, Ray E. Blaine Nebeker, Quinney P.C., City, & Lake Salt UT, on filed an amicus curiae brief behalf PacifiCorp, Amicus Curiae. Paul M. Seby Marian Larsen of C. LLP, Moye Denver, CO, White filed an amicus curiae brief behalf of the Ameri- Electricity, can Coalition for Clean Coal Amicus Curiae. Kodish, TN,

Stephanie Knoxville, filed an amicus curiae brief on behalf of the Association, National Parks Conservation Amicus Curiae. interfere with BRISCOE, prove any plan that “would Judge, Chief

Before chap- LUCERO, Judges. of this applicable requirement” Circuit KELLY and 7410(Z). Code. ter of the United States BRISCOE, Judge. Chief duty to create its own The EPA has petitions for consolidated (FIP) if plan ei- implementation federal view, challenge a final rule petitioners1 1) failed to it “finds that a State has ther: Envi- States United promulgated or finds required make a submission Agency Protection under ronmental plan or revision submitted plan argue that Air Act. Clean the minimum crite- satisfy State does rejected Okla- impermissibly (k)(l)(A) ria under subsection established limit emissions of sulfur plan homa’s section”; “disapproves of this and Electric at Oklahoma Gas dioxide plan submission implementation State replaced it plants and Company power 7410(c)(1). duty part.” § in whole or regulations, stringent own more with its a FIP exists “unless promulgate usurped the contend which deficiency, the Ad- corrects the and State authority require will sizable state’s and revi- approves plan plan ministrator unnecessary technology. expenditures sion, promul- before Administrator authority EPA has We conclude plan.” gates implementation such Federal and that it law- plan to review the state’s authority rejecting fully exercised portions in this case are At issue Exercising it and its own. promulgating visibility at protect that seek to CAA jurisdiction 42 under U.S.C. our and areas. parks certain national wildlife 7607(b)(1), deny re- petitions § requires promul- that the EPA The CAA view. ... gate regulations “to assure reasonable I future any toward” progress preventing any impair- “remedying existing, and ... Statutory Background A. I mandatory class visibility ment of cooperative- Air Act “uses Clean results impairment areas which Federal regulate quali- air approach federalism 7491(a)(1), § pollution.” manmade air from ty.” Magnesium, LLC U.S. (a)(4). EPA en- requires It also (10th Cir.2012). 1157, F.3d Under such plan “contain[s] that each state sure (CAA), Air Act the Environmen- the Clean limits, compliance emission schedules (EPA) Agency tal must create Protection may necessary and other measures as be air quality national ambient and review meet- progress reasonable toward make pollutants. for certain standards 7491(b)(2). goal.” § ing the national 7408, §§ States then have U.S.C. case are the CAA’s Relevant this adopt implemen- state responsibility (SIPs), that contrib- regarding mandates sources provide[] tation “which plans maintenance, visibility and must implementation, impairments. enforce- ute to SIPs secondary air primary and ment” of those include: 7410(a)(1). §

quality standards. provided ... a except as otherwise stationary major that each quirement however, States, authority exercise 7, August is in existence on source which oversight. The reviews with federal 1977, opera- not been in but which has plans comply all SIPs to ensure as of years for more than fifteen ap- tion with the statute. The group, Gas and Oklahoma Okla- sumers interest 1. The include the state of homa, Company. Energy Electric Con- the Oklahoma Industrial date, which, by as determined EPA has promulgated such these BART guide- (or 51.308(e). State the Administrator in the § lines at 40 C.F.R. [FIP]) any of a air pollutant case emits may reasonably anticipated be

which B. Background Procedural any impairment cause or contribute to 2005, updated issued an area, visibility in any procure, such shall of its Regional version Haze Rule that install, operate, expeditiously as required states to submit SIP by revisions (and thereafter) practicable maintain 17, December Regional 2007. See Haze technology, best available retrofit as de- Program Requirements, 40 C.F.R. (or termined the State the Adminis- 51.308(b). § January On [FIP]) trator the case of a for con- EPA took final in finding action that Okla- trolling such emissions from source for along states, homa— purpose eliminating or reducing Columbia, District of and the U.S. Virgin impairment. such Islands —failed to submit a SIP that ad- 7491(b)(2)(A). simplify, To state —or Regional dressed Haze ele- EPA, when promulgating a FIP— ments this deadline. See Finding of eligible must: determine which Failure To Submit Implementation State major stationary in their sources state con- Required by Plans Regional visibility tributes to impairment; and then Rule, (Jan. 15, FedReg. Haze 74 2392-01 2) determine the “best available retrofit 2009). This triggered duty technology” controlling for the emissions implementation promulgate a federal plan causing impairment at that source. years. within two See 42 U.S.C. Id. determining When “best available ret- 7410(c)(1). § (BART): technology” rofit (or promulgated FIP, Before the EPA State the Administrator in deter- however, Oklahoma submitted its mining SIP. See emission limitations which reflect Regional Implemen- Oklahoma Haze State technology) such shall take into consid- eration ^[1] costs of compliance, ^[2] tation Plan, Joint Appendix (JA) at (Feb. 2010). 17, energy quality and nonair environ- At issue this petition mental impacts of compliance, ^[3] any are the SIP’s BART determinations with existing pollution technology control in respect at two units Oklahoma Gas & use at source, ^[4] the remaining Electricity’s (OG & E’s) Muskogee Gener- source, life useful of the and [5] the ating Station and two units at its Sooner degree of improvement visibility Generating Station. The Oklahoma SIP which reasonably anticipated be (S02) a sulfur set dioxide emissions limits result from the such technology. use of 0.65 (thirty-day of average) and Ib/mmBtu (annual § 7491(g)(2). average) 0.55 for each of Ib/mmBtu these four units. OG & E Muskogee See requires The CAA the EPA create Review, Generating Station BART JA at guidelines for the “on appropriate states (Jan. 15, 2010); &OG Sooner Gen- techniques and implementing methods for Review, erating Station BART JA at 221 7491(b)(1). § this section.” For “a fossil- (Jan. 2010). 15, BART The for each of fuel fired generating powerplant having these units included & E’s continued generating capacity total excess of 750 use of low-sulfur The megawatts, coal. SIP consid- emission limitations re- ered, rejected, but quired under this shall an emissions limit that paragraph be de- pursuant” installation regulations require termined of pro- would so-called 7491(b). mulgated the EPA. The See Muskogee scrubbers remove S02. 213; cost to be Review, BART timated the of scrubbers Sooner BART JA at $7,147 [dry- cost ton removed at one of Review, per 247. “The at JA S02 low Id. high, the benefit too units. Generating is too the Sooner Station scrubbers] costs, borne, if further extend at that same projected and these scrubbers The the primary coal as expectancy $1,291 ton per life unit would S02 Muskogee] facil- fuel in Sooner [and moved. Id. beyond,” years at least 20 ities] for dis- proposing partial In addition analyses. & E’s according to OG SIP, approval proposed the EPA id. implementation creating its own federal 22, 2011, proposed the EPA On March 16,168. plan in the same action. at par- partially approve rule limit proposed emissions S02 Pro- Oklahoma’s SIP. tially disapprove (thirty-day average). of 0.06 lb/mmBtu ' 16,168-01, 16,169 Rule, Fed.Reg. posed limit, the 16,193-94. on this Based (Mar. 2011). limita- emission S02 dry use of scrubbers believed the among units tions & E’s four were for OG 16,183. Id. at would be cost effective. pro- the SIP that the EPA parts comment, pub- After notice said that posed disapproving. enacting the final rule these emis- lished promulgated failed to follow the Oklahoma Rule, Fed.Reg. limits. See Final sions regulations determining BART. Id. (Dec. 2011). 81,728-01 16,182. the EPA said that Specifically, 24, 2012, February the state of Okla- On properly ‘take into con- Oklahoma “did Energy Industrial homa and Oklahoma compliance’ when it sideration the petition filed in this court a Consumers greatly over- relied on cost estimates (Case final No. seeking review of the rule dry and wet scrub- estimated the costs of 12-9526). petition OG & E filed bing to conclude these controls were 12-9527). (Case day review the same No. (quoting cost effective.” Id. C.F.R. granting a mo- We later issued an order 51.308(e)(1)(ii)(A)). § petitions. tion to consolidate these typically that are con- “Given scrubbers petitioners steps The also took highly to be cost-effective controls sidered rule. same stay application of the The issue, those power plants for such as review, day for they petitions filed inde- retained a consultant to [the EPA] filed the EPA a motion for petitioners with suitability pendently assess the and request a for an ad reconsideration and EPA installing of these controls.” The stay.2 petitioners also ministrative substantially found the scrubbers to be stay in seeking a motion this court a more did. filed cost effective Oklahoma 16,183. A two- pending hearing For es- a on the merits. example, Id. at Oklahoma CAA, tion.”); v. filing petition Res. Council of for see Natural Under the Def. Abraham, 179, finality (2d of reconsideration does not affect 203 n. Cir. 355 F.3d 11 purposes judicial action for the of 2004). that While the Third Circuit has held 7607(b)(1) (“The § fil- review. See U.S.C. pending petition reconsideration de ing petition by the for reconsideration of CAA, prived jurisdiction W. it of under the see otherwise final rule or Administrator 581, EPA, Co. 860 F.2d 587-88 Penn Power v. finality of rule action shall not affect the such (3d 1988), it this result before Cir. reached purposes judicial review nor or action for prevent petitions for CAA was amended petition time which a extend the within affecting finality. Clean reconsideration from judicial rule or action under review such 101-549, Act, Amendments, Pub.L. No. Air filed, may post- this be and shall not section 706, (1990). 104 Stat. 2399 pone ac- of such rule or effectiveness CAA, granted peti of this court judge panel interpreting the we must follow portion stay motion to of the tioners’ guidance Chevron, U.S.A., set forth requiring rule the reduction of emis Council, Inc. v. Inc., Natural Res. S02 Def. sions at these four OG & units. Okla 837, 2778, U.S. 104 S.Ct. 81 L.Ed.2d 694 EPA, 12-9527, v. homa Nos. 12-9526 and (1984). clear, “If the statute we apply (10th 2012). 22, 1-2 Cir. June Mean plain its meaning inquiry and the ends.” while, appellate briefing progressed. EPA, Ariz. Pub. Serv. Co. 562 F.3d objec- number of (10th Cir.2009) raise a (quotation omit rule, the final arguing tions to ted). “If the is silent or ambiguous statute usurped authority has the state’s question about the ... at issue defer spend an effort to force E to OG & more agency apply authorized agen than one-billion install dollars to unneces- cy’s long construction as it so is a reason sary technology in years. the next five interpretation able of the statute.” First, they argue that the exceeded omitted). (quotation “[Administrative im statutory authority by disapproving plementation of a particular statutory pro BART Oklahoma’s determination. Sec- qualifies vision for Chevron deference ond, that, they argue if even the EPA had it appears Congress when delegated authority, arbitrarily the EPA acted authority agency generally to make capriciously by disapproving Okla- carrying law, rules force and that Third, argue homa’s SIP. agency interpretation claiming defer arbitrarily EPA acted capriciously promulgated ence exercise Fourth, promulgating petition- its FIP. authority.” United States v. Mead argue provide ers the EPA failed to Corp., 218, 226-27, U.S. S.Ct. adequate aspects them notice of (2001). 150 L.Ed.2d 292 Finally, final rule. petitioners argue the EPA violated promulgat- the CAA agree We with the that the statute FIP in ing the action in which same provides the agency power partially disapproved of the SIP and after review Oklahoma’s determination two-year deadline to a FIP promulgate for these four units. The EPA expired. had approve any “if plan revision the revision any applicable would interfere with II quirement attainment concerning and rea- argue further ... progress sonable statutory authority by reject exceeded applicable requirement chapter.” of this ing Oklahoma’s BART determinations and 7410(0- § 42 U.S.C. And under replacing petition them with its own. 7410(a)(2)(J) § appli- SIPs must “meet the that say tramples ers the EPA’s action ... requirements part cable of this C Congress the discretion that afforded subchapter” provi- includes the —which to states make these decisions. The sions of the to visibility. CAA related See cooperative-federalism policy sup CAA’s §§ 7492. view, ports petitioners say. More visibility requires itself statute specifically, petitioners point to promulgate regulations that “re- legislative history statute’s and its lan quire applicable implementation each guage mandating BART “as determined — limits, ... plan to contain such emission by view, the State.” compliance schedules of and other meas- this all indicates unambig that the statute prescribes may necessary ures as to make uously a role for be rea- limited regards EPA as BART na- progress meeting determinations. sonable toward determination.”). 7491(b)(2). That BART Given § includes fied’ tional goal.” state make must that the EPA requirement a the statute mandates And it is statute, while BART determinations. comply ensure SIPs with gives undoubtedly true that the statute EPA would without fail to see how the be balancing the five in states discretion authority to BART determina- review factors, it mandates that the BART compliance guidelines. tions for requirements to certain state adhere in American opinion Circuit’s The D.C. analysis. The conducting a BART when EPA, F.3d Corn Growers Ass’n a BART plan must include determi- state (D.C.Cir.2002), not alter this conclu does “may any eligible plant nation for At issue in Com Growers was sion. to anticipated cause reasonably be Rule that provision Regional Haze visibility impairment contribute to states to make BART decisions required 7491(b)(2). § In addi- area.” such location part geographical on the based 7491(b) tion, § BART requires that source, to its emis opposed of a as actual power plants determination units required The rule sions. 4-5. having a total like at issue those here — subject BART BART-eligible be sources greater than 750 generating capacity of evidence of empirical “even absent pursu- determined megawatts be —“shall visibility individual contribution to regulations. source’s ant” to the (“In 7491(b) fos- § the case of a long U.S.C. in a I area so impairment Class hav- generating powerplant fired sil-fuel region located source is within ing generating capacity a total excess Id. at visibility impairment.” contribute to limita- megawatts, of 750 the emission determination, making 5. the BART When paragraph under this shall required tions “analyze degree needed the state guidelines, pursuant determined be visibility improvement be under promulgated by Administrator ... as a result of the emission achieved (1).”); EPA Br. at 7. paragraph see also all sub reductions achievable from sources statute, the As EPA has required ject region BART within the located guide- promulgated regulations providing visibility impairment.” that contributes to making lines BART determinations. omitted). emphasis (quotation Id. at 6 statute, regulations require Like the approach The D.C. Circuit held large power that BART determinations at at 7- “inconsistent” with the CAA. Id. guidelines. 40 C.F.R. plants follow 51.308(e)(l)(ii)(B) (“The determination of ways cited two which The D.C. Circuit power plants BART for fossil-fuel fired with the statute. the rule was inconsistent having generating capacity greater total First, EPA’s approach “distorted] pursu- megawatts must be made Congress directed the states judgment Y this guidelines appendix ant BART-eligible for each source” make (Guidelines for Determinations part BART factors dif- treating one the five Rule).”). The Regional Under the Haze ferently than Id. at 6. the others. rejected Oklahoma’s SIP because instance, from rule, a state prevented for to comply BART failed determinations “considering] degree to which new EPA at 22 guidelines. with these Br. particular at a source equipment (“Specifically, concluded that Okla- distant national help cure the haze some reasonably to homa failed consider on the park.” Id. at 7. take “Under by calculating factor compliance’ ‘cost of statute, entirely possible it is therefore guidelines, BART required costs as spend to unjusti- may that a source be forced which led to an ‘unreasoned millions of dollars for technology new nation because it disagreed with way it appreciable will have no on effect the haze balanced rejected the five factors. It any Class I area.” Id. BART determination because it failed to follow the guidelines required by the —as Second, the D.C. Circuit said that the statute —in calculating one of those factors. impermissibly rule authority “eonstrain[ed] All Congress agreement conferred the states.” Id. at conference referenced 9. The court the D.C. Circuit said the statute and the did was shift the initial responsibility legislative history making for suggested that BART determi- nations states had from the EPA to authority weigh broad to the state. But that does statutory factors not differ from parts and make BART deter- ability minations. Id. at 8. CAA—states have the The D.C. Circuit not- to create SIPs, but subject ed that the are Report Conference on the 1977 to EPA review. addition, amendments to the specifically Report empha- CAA refer- Conference sized that agreement reject enced “an the BART to determinations House for large power provisions plants bill’s giving power comply must with EPA to guidelines: determine whether a source contributes to and,

visibility impairment so, if what The agreement clarifies that BART controls should be applied to that State, Administrator, rather than the source.” Id. agreement instead added identifies the impairs source that visibili- the language delegating authority this ty in the Federal class I areas identified the state. Id. “The Conference Report thereby fall within the requirements thus confirms that Congress intended the of this section.

states to decide which sources impair visi- bility and what BART ap- controls should In establishing emission limitations ply to Rule, those sources.” Id. The Haze any for source which impairs visibility, though, “ties the states’ hands and forces the State shall determine what consti- them require BART controls at sources tutes ‘best available retrofit technology’ without empirical evidence of par- (as section) defined in this in establish- ticular source’s contribution to visibility ing emission limitations on a source-by- impairment in a Class I area.” Id. source basis to be included in the State implementation plan carry so as to

Here, out though, the statute legis- and the the requirements of this section. The history lative support our conclusion that regulations guidelines and Federal may reject the EPA BART determinations quired by passed the House bill de- that do comply guidelines. termining technology are eliminat- True, the modification of the original ed all sources other than House bill reflects an intent to shift the fossil fuel electric generating plants with a total power to determine BART from generating capacity in excess But, above, the states. it still placed megawatts. statutory limits on those state decisions. (Conf. While legislative history 95-564, (1977) H.R.Rep. No. evidence at 155 added). an intent prevent Rep.) directly (emphasis from The Senate dis- making decisions, those BART cussion about the Conference Report does not necessarily highlighted guidelines evidence an intent the role that deprive play in BART authority large determinations for ensure that power plants: these BART comply decisions with the case, present

statute. In the the EPA did McClure. [Senator] And while those ex- reject isting determi- sources are limited to the 28 ma- in their fence—omitted the Senate bill’s jor sources contained facilities, ex- re major emitting clear that the statute definition of brief—makes has source which empting any such here that BART quires determination to emit less potential maximum Pet. guidelines. with the See comply apply per guidelines Federal year, tons 15. And because the Opening Br. at plants generating to fired only fossil-fuel compliance with monitors SIPs for megawatts? in excess of 750 statute, it monitor BART determina must That correct. Mustíe. is [Senator] guidelines. tions for with the compliance the confer- McClure. Under [Senator] sure, guidelines themselves To be retain agreement, ence does the State conflict the statute. might somehow with authority for sole identification argued have that But the visibility is- purpose sources for the here.3 therefore any conflict exists We sues under this section? authority had hold State, Yes; the Mustíe. [Senator] BART review Oklahoma’s determination Administrator, identifies source respect power plants. to these two impair visibility thereby and may requirement of section falls within the Ill 128. possess Having held And does McClure.

[Senator] BART authority these es review hold for determination of “Best true decisions, Technology”? must now whether Available Retrofit determine authority Yes; lawfully exercised that again it Mustíe. here [Senator] rejected it Petition what consti- when Oklahoma’s SIP. State which determines arbitrary tutes Technolo- and argue “Best Available Retrofit the EPA took ers as in section The Fed- gy,” defined 128. capricious rejecting action in two sets large guidelines apply only eral determining used in estimates powerplants we have described. EPA, hand, ar BART. The on the other rejected esti S26,854 4, gues properly these Cong. Aug. (daily Rec. ed. added). thus, and, SIP relied on The last sen- (emphasis mates— brief, procedural guidance to vide and technical amicus American Coalition making Electricity States determinations. Clean that some for Coal asserts Am. for Clean Coal’s Br. at 12 Coalition guidelines conflict between the and statute added). (emphasis does the statute may exist because: First, restrictively. guidelines so not limit the guidelines provide can States with regula- guidelines part made must be only appropriate techniques and “on meth- progress toward tions that ensure "reasonable ods,” "(A) identify- including methods for meeting goals” specified in the national ing, characterizing, determining, quantify- Second, (b)(1). 7491(a)(4), § those statute. ing, measuring visibility impairment and merely guidelines into account” ”tak[e] must (1), paragraph areas referred Federal Congress report from a recommendations (B) (or methods) modeling techniques techniques on the and referenced in methods determining for the extent to which man- statute, 7491(b)(1), § which in- 42 U.S.C. pollution reasonably be made air antic- remedy- preventing cludes and “methods ipated to cause or contribute to such im- pollution resulting ing air and such manmade pairment, preventing and methods visibility impairment.” U.S.C. Moreover, remedying pollution manmade 7491(a)(3)(C). such air § amicus brief resulting visibility impairment.” provide See cross- why explain fails to the EPA could 7491(b)] (last § regulations providing procedural [42 reference from U.S.C. 7941(b)(1) authority guidance, yet paragraph) [§ but lacks the technical Thus, 7491(a)(3)]. pro- complied is to to ensure with them. EPA’s role states

1211 comply guide- with its it interpretation them —for failure to unless that is plainly lines. erroneous or inconsistent with the regula —Ctr., tion.” Decker v. Nw. Envtl. Def. of We follow the standards the Adminis —, 1326, 1337, U.S. 133 S.Ct. 185 (APA) in reviewing Procedure Act trative (2013) omitted). L.Ed.2d 447 (quotation the CAA. the EPA’s actions under Magnesium, 1164. 690 F.3d at Under the A. 2008 Cost Estimates APA, any agency we must unlawful hold The that argue the EPA ar- “arbitrary, capricious, action that an bitrarily rejected of a set cost estimates discretion, otherwise not in abuse or that OG & E submitted to the EPA in 2008 706(2). 5 accordance with law.” U.S.C. (2008 Estimates). Cost The capricious “Under the arbitrary or stan claim the “EPA acknowledged that dard, we must determine whether & E ‘OG did “EPA Air utilize the Pollution relevant agency considered the data and Control Cost when Manual” constructing rationally explained decision.” its Aré. ” [May Open- 2008] cost estimates.’ Pet. Co., Pub. Serv. 562 at 1122. “Agency F.3d ing Region Br. at 20 (quoting 6 Com- capricious arbitrary action is if the ments on ODEQ’s BART Engineering agency has relied on factors which Con (Nov. 2008)). Analyses, JA 1132 consider, it gress has not intended en 2008 Cost Estimates were “more than ten tirely failed an important to consider as average per times EPA’s stated ton pect problem, explanation offered nearly for this technology, and five times its decision that runs counter as much upper as the limit of EPA’s ex- evidence before the or is im agency, so pected range.” Id. at 21. The EPA plausible that it be could not ascribed to a numbers, should have addressed these pe- product difference view or of agency say, titioners prove because expertise.” (quotation Id. at omit 1123. scrubbers were not cost effective. ted). agency explains “Even when an with ideal clarity, argument decision less than a re This is without merit. The viewing upset court will not the decision on EPA never stated that 2008 Cost Esti- path that account if agency’s complied rea mates Control Cost sonably context, Dep’t be discerned.” Alaska In the EPA simply Manual.4 ac- Conservation, 461, 497, 124 Envtl. U.S. knowledged purported & E (2004) (quota S.Ct. 157 L.Ed.2d have used constructing the manual in omitted). addition, Indeed, requested tion we note that estimates. that OG & an agency interprets regu any its own E note from the “[w]hen deviations cost manu- lation, Court, rule, as a general required by guidelines5 defers al—as —after 4. entire EPA included the did comment fol- the "EPA Air Pollution Control utilize lowing: constructing Cost Manual” when its cost However, estimates. OG & E should also estimates, Regarding its cost OG & E's esti- note where it areas in which has deviat- high compared mates seem to what EPA has guidance. ed from analyses. seen in other BART OG & E cites Comments, (em- Region JA at 1132 costs, part equipment increased due to added). phases the “sellers market” resulted from the program. CAIR Since CAIR has been guidelines state "cost estimates vacated, OG & E should solicit revised bids OAQPS should be based on the Control Cost Manual, pollution equipment from control vendors. possible.” pt. where 40 C.F.R. Region similarly Y(IV)(D)(4)(a). app. 6 is aware it also in- sized configured that estimate much parties low- structs that include “should documen- facilities dry er costs regard- the installation wet or tation for additional information costs, systems. Region ing purchased equipment FGD equipment the site-specific ones OG & E’s estimates more data that OG &

pointing out petitioners say EPA has high compared initially to what submitted. The “seem[ed] analysis.” EPA Re- in seen EPA defer Oklahoma’s that the should 1132; Comments, see 40 JA at also gion 6 cost “site-specific that the determination Y(IV)(D)(4)(a) n. app. 15.6 pt. 51 C.F.R. by OG E in 2009 information submitted & credible, detailed, specific and for the was event, EPA not any And in the did facilities, beyond well the going individual the Cost Estimates. “ignore[ 2008 ]” the by recommended Rather, methodology default EPA explained “[t]hese the over- Br. at 23 guidance.” Opening 2008 are not valid under the Pet. costs omitted). the costing required night (quotation ap- method” This argument Response to Technical Com- manual. ac- part, in on our pears premised, to be ments, 2008 at 1236. The Cost Esti- JA representation that the EPA cepting the ... “containfed] mates fundamental the Estimates com- conceded 2008 Cost flaws, including methodological such plied guidelines. petitioners the with for escalation and Allowance Funds Used “EPA to argue reply in their brief (AFUDC).” During Construction cost acknowledge receipt of estimates not “The cost of scrubbers would be sub- compliance it were in with agreed reported stantially higher than those for CCM, site-specific ask for cost estimates projects if & E had other similar CCM, reject beyond and then go basis, i.e., costing and used the method con- site-specific estimates for not those dollars, overnight in pre- current arbitrary forming exemplifies to the CCM Manual,” by the scribed Control Cost capricious and results-oriented decision- Id. The EPA therefore had a said. at 11. making.” Reply Pet. Br. rejecting 2008 reasonable basis for disagree char- with We complying as not with Cost Estimates of acterization actions. guidelines. reject any not mere EPA did use B. The 2009 Cost Estimates not site-specific complying costs as rejected particular It guidelines. argue site-specific use numbers because in arbitrarily rejecting acted the cost esti- (2009 & “recognized specified that how OG E in mates 2009 Cost Esti- submitted mates). subsequent quotes [its] vendor These estimates included those life, FCC, components, Co. v. 450 F.3d replacement major lems.” Covad Commc'ns omitted). 528, (D.C.Cir.2006) (quotation calculation dif- other element 550 signif- fers from the Control Cost Manual.” 40 respond failure to to comments is "The Y(IV)(D)(4)(a) app. n. pt. C.F.R. 51 only icant insofar as it demonstrates agency’s decision was not based on a consid- argue reply in 6. Petitioners their brief that (citations eration of the relevant factors.” Id. explicitly response raise this in did omitted). ‘key- quotation making "In and therefore cannot use this comments inquiry [agency] engaged whether the stone’ reasoning justify appellate on its decision reviewing decisionmaking, in reasoned Reply (quoting Pet. Br. at 10 n. review. larger administrative court is consider v. State Mut. Motor Vehicle Ass’n Farm Mfrs. Shalala, Hosp. F.3d Mt. record.” Diablo Co., 29, 50, Auto. Ins. U.S. 103 S.Ct. omitted). (9th Cir.1993) (quotation ("[A]n (1983) agency’s 77 L.Ed.2d 443 Here, all, part is letter itself —which upheld, action must be if at the basis itself.”)). quite clearly explains con- the EPA's agency But an articulated record — comment, And every about the 2008 Cost Estimates. agency cerns "need address fact, did, submit new cost [although] respond it must reasoned significant prob- estimates. manner to those that raise analysis them in its cost neric numbers had properly use of been docu- mented, Com- Response resulting flawed.” to Technical not ana- costs were ments, require lyzed compliance guidelines JA at 1308. The with the manual. See site- provide support Analy- that states Revised BART Cosh-Effectiveness (October 2010) (“[I]t sis, depart specific generic costs that from the JA at 1517 See possible generic costing numbers Cost Manual. to follow the Control meth- Y(IV)(D)(4)(a) app. Manual, n. 15 od in pt. relying 40 C.F.R. the Cost on vendor (‘You for quotes should include documentation and other information estimate any capital the you additional information used for scrubber and O & [OG M costs. & calculations, including cost any information E’s used estimates consultants] vendor that as- supplied by your equipment vendors affects costs but did not follow the method.”). sumptions regarding purchased equipment generic costing guidelines costs, life, major equipment replacement say that states should the follow manual’s components, any methodology and other element so that can projects be more calculation easily compared. that differs from the Control The EPA that said OG Manual”). Cost OG & E E “overnight” never delivered & should have used the Instead, EPA esti- costing methodology. these detailed vendor “OG E& mates, preventing incorrectly from conduct- and that others assume ing an adequate review to these cost ensure effectiveness should be based on the method, departures from the Okla- ‘all-in’ manual —and cost which includes all of transaction, homa’s approval justified. them —were the costs of financial includ- (“[Mjuch 81,745 interest, commissions, at Fed.Reg. ing See 76 documentation & and cite to a financial up others fees from transaction support project goes operation, deviations from the Control Cost date that the into Thus, Manual we provided operating was not to us. as of the assumed commercial analyze scrubbers, were unable to their contents and dates of the 2015.” 76 81,744. determine were Fed.Reg. whether deviations at see, appropriate.”); e.g., Tech- Response to part, petitioners argue For their (“For Comments, nical in- JA at 1239 generally the Control Cost Manual stance, although provided OG & E two require “overnight” does not the use of the spreadsheets listed their line cost However, they method the EPA. used items, these each over 600 spreadsheets, any specific parts do not point (and lines in length including line items Manual guidelines the Control Cost seeding fertilizing grass such as Instead, approach. contradict sites), plant were cell stripped of all petitioners argue itself calculations, preventing meaningful methodology conceded excluded view.”). And, we discuss in eval- as below Br. only Opening inflation. Pet. at 31. uating action in promulgating the EPA’s (“EPA required claimed that the CCM FIP, costing many of OG & E’s as- ap- with a dollar’ compliance ‘constant sumptions unjustified.7 were proach. approach ... The constant dollar Moreover, comparability EPA’s consultant noted BART context allows that, departures ge- by removing even if the from the the effects of inflation from B, recognize higher we We that the EPA has less discre- even under the standard reject apply evaluating rejecting tion when it takes actions to a SIP when its actions yet any justifi- promulgates provide it does when & E has FIP. SIP. OG providing departed we make believe that the had reason to cation estimates IV, adjustments guidelines. described in Section Part from the estimates.”). “overnight” costing of the so-called believe this use Petitioners

cost the other it for included the EPA used properly means that it method because sure, for Funds costs, the Allowance such as rule. first time in the final To be Construction, analyses. in its During Used “overnight” method EPA used the term in the final rule. Howev- for the first time do not read ‘petitioners, Unlike the er, the EPA excluded same proof the EPA’s statement throughout final rule that it did entire constant-dollar method EPA believed the “overnight” method was sim- process only inflation. The removing requires —the it used in the Final Rule ply referenced the manual’s shorthand EPA’s consultant “constant-dollar” method exclusion of these costs. adherence to the to describe the excluding in the fact, reason for inflation as the comments to own BART Cost-Ef- Revised estimates. See argument have belie the (“The Analysis, JA 1517 fectiveness us, they challenged the made to since ex- real or in the Manual is metric estimated clusion these costs the administrative in that the effect of constant-dollar costs See, e.g., B to OG & E’s proceeding. Ex. removed.”). But inflation been has Analy- May 2011 BART Cost Comments: never said that the Control consultant Report, (May at 1156 sis JA only inflation. Manual excluded Cost (“EPA’s incorrectly argues that consultant fact, explained throughout the consultant part an is not of the constant AFUDC Manual report her that the Control Cost in approach found the EPA Control dollar required excluding many of the other included and should not be in Cost Manual on which OG & had relied. See JA analyses.” the BART cost-effectiveness (“Cost at 1519 items such as escalation of omitted)). reason (quotation We see no costs, cost, part are not bond and AFUDC excuse failure to raise these methodology Manual for esti- Cost in arguments their brief. substantive (“[Al- see, costs.”); e.g., JA mating at 1520 Additionally, juris we have During for Funds Used Construc- do not lowance part are not constant dollar procedural tion] diction consider error in the EPA Cost approach found Control might occurred a result of the have not be included Manual should allegedly using “overnight” meth analysis.”). cost-effectiveness Final od for first time Rule. whole, Viewing these comments as a we do CAA, “[o]nly objection to a Under believe EPA or its consultant ever procedure rule or which raised with was only inflation was the cost that conceded period specificity during reasonable eliminated from OG & needed be E’s may ... public during comment be raised estimates. judicial review.” U.S.C. 7607(d)(7)(B). peti § also refer to two affida- fact experts objec vits from their that detail what have their tioners could not raised they proper costing believe method- “overnight” tion about meth the use argu- ology. permitted Even if we these published until the final od after rule reference, incorporated by ments to be require them does excuse from cannot consider affidavits because they ment raise issue with the first they are the administrative rec- outside of “Rather, peti requires EPA. the CAA 7607(d)(7)(A). § ord. U.S.C. objection to the tioner to first raise agency th[r]ough petition for reconsider hurdle, petitioners

Aware of this criticize Appalachian ation.” Power Co. EPA’s procedure, arguing (D.C.Cir.2001). object opportunity no 249 F.3d Peti- had (the here, petition their though, tioners filed sions reductions difference between day they the same filed reconsideration baseline annual and the emissions estimate petition lack for review. We therefore this controls).” of emissions after 40 C.F.R. procedural jurisdiction to rule on this ob- Y(IV)(D)(4)(c). pt. app. “The baseline (“If 7607(d)(7)(B) jection. See U.S.C. represent emissions rate should a realistic Administrator [a refuses convene depiction anticipated annual emissions proceeding], person such reconsideration Y(IV)(D)(4)(d). for the source.” seek review of such refusal general, “In existing for the sources sub- appeals States court of for the United BART, ject you estimate will the antici- circuit....”) appropriate (emphasis add- pated annual based upon emissions actual ed). emissions period.” from a baseline you project ‘When that future operating IV limited parameters (e.g., opera- hours of challenge Petitioners also decisions utilization, or capacity type fuel, tion by the EPA promulgating made product raw materials or mix or type) will First, petitioners argue FIP. past differ from and if practice, pro- EPA itself the guidelines failed to follow jection has a effect in deciding the BART because did not base cost-effective determination, you then must make these analysis ness on the historical emissions parameters assumptions into enforce- Second, argue baseline. able limitations.” Id. analysis based its incorrect voluntarily OG & E technological using has been low- assumptions about the size of Third, power scrubber that be built. coal at plants. the needs to sulfur It petitioners many adjust of the criticize the therefore estimated that scrubbers would the EPA ments made to its cost estimates. 14,000 remove around tons of per year S02 Finally, petitioners the assert at each of the power plants. Comments of & E at the units “[s]crubbers OG would Rule, Proposed OG & on JA at have a significant impact visibility.” however, EPA, 1106. The assumed that at 36. these challenges We review & E begin high-sulfur would use arbitrary the same and capricious under if proposed coal it installed the scrubbers. we standard used to evaluate the EPA’s EPA, therefore, estimated that scrub- rejection of the SIP. do so 43,428 per bers would remove tons of S02 requires a recognizing slightly while 46,458 at year power plants, one of the perspective: evaluating different the per year By tons other. S02 EPA’s own guidelines, choices under the assuming OG & E would remove larger opposed its evaluating choice to re- S02, using cheaper, high- amounts while ject the Oklahoma under guide- SIP coal, resulting sulfur conclusion was lines. appeared scrubbers more cost effective. A. Baseline Fea- Emissions/Technical

sibility petitioners’ objec- This links with second impermissibly tion: the EPA based Petitioners argue the acted arbi- analysis smaller, on the construction of trarily when it promulgated its FIP be- expensive allegedly technically less it ignored past cause units’ rates of —but Petitioners claim infeasible —scrubbers. conducting emissions in analysis. S02 EPA wrongly assumed that OG & E guidelines, “[a]verage Under cost ef- option building had the total smaller scrub- fectiveness means the annualized of control annual divided emis- ber based on the sulfur content of the coal in a different action.8 JA size does not it Scrubber would burn. coal, effec- option sulfur content This increased the cost depend on the Rather, size say. assuming scrubber petitioners tiveness scrubbers — potential the maximum heat must “reflect use of coal—because continued low-sulfur facility, that number is input from less it would be assumed scrubbers a facility the same whether essentially expensive. Open- low sulfur coal.” Pet. high burns argu- petitioners’ The evaluation of A would ing Br. at 28. smaller scrubber essentially hinges on technical ment build, impossible signifi- or would be agree unit. feasibility of smaller We electricity pro- cantly units’ diminish petitioners that guidelines with the duction, say. typically require use of historical it says made its calculations if agree And we emissions baseline. assumptions made response to the flawed to, justification, in- the EPA were without view, by the In the EPA’s petitioners. baseline, it crease historical emissions analysis they assumed that encourage high-sulfur the use of would building powerful— more would much be removing simply purpose coal and, costly important, more —scrubber greater amounts of S02. system actually needed. The argument But is framed as an what assumed, though, still really argument over baseline is future, in the would low-sulfur coal use proposed the size of the scrubbers. over making less effec- the scrubbers seem cost would The cost effectiveness of scrubbers be, they actually tive than if in- routinely proposals be understated said. larger costing for scrubbers much cluded Fox, consultant, Phyllis Dr. prudent be than needed. ‘While analyzed options two to account for these reasons, overdesign many the cost of analysis. alleged flaws OG & E’s overdesign not be should attributed Option Fox evaluated the effective- BART, especially when the emission high powered using ness of the scrubbers overdesign,” do not consider the ductions an a historical baseline. Revised Response the EPA said. to Technical Analysis, JA at 1513. Cosh-Effectiveness E Comments. Id. at 1283. If OG & is, analysis That that & the assumed OG scrubbers, larger the EPA wanted then currently using E—while low-sulfur coal— isolate BART- way needed some the using cheaper, higher sulfur begin

would related costs from the non-BART-related actually larger if built these coal it scrub- by The EPA costs. took into account 1280. the bers. Id. at This increased the under the adjusting baseline emissions an- scrubbers’ cost effectiveness because it that, if & E assumption OG built ticipated greater the removal of amounts it proposed, presum- scrubbers it would at 1513-14. S02. shift cheaper of coal. ably using forms In the EPA cost Option evaluated the arguments Left to evaluate the powered effectiveness of lower scrubber parties’ experts, give must we deference using historical baseline emissions. EPA. See San Citizens Alliance Juan design at this less 1514. order (10th Stiles, scrubber, Cir. 654 F.3d EPA used a model powerful (“The ac- give agency had deference we that & E’s consultants created OG "oversimpli- EPA was an 8. The used this in the final rule. which the conceded EPA model Comments, Response precise to Technical The EPA’s consultant had used less fication.” engineering proposal, in the JA at 1283. model for basic coal,” especially high where the chal- burns or strong petition- tion low sulfur lenged decisions technical or scien- say. involve Opening ers Pet. Br. at 28. The agency’s matters within the area of tific “agree[d] EPA that sulfur content of omitted)).9 (quotation While expertise.” fuel, itself, by taken will signifi- petitioners engi- criticize some of the (or cost) cantly affect the size of the gas EPA, by neering assumptions made portions path system.” of the FGD Re- the EPA explain why do not was not sponse Comments, to Technical JA at justified in & relying on OG E’s own con- noted that the model, EPA’s why sultant’s detailed “design and sizing general- of a scrubber is responses support docu- its technical (1) ly major systems: divided into two flue in addressing were insufficient ment (2) path gas handling sys- and reactant example, petitioners concerns. For at pointed tem.” Id. 1284. The EPA out that state “the smaller envisioned scrubber that OG & E’s own consultant had said in [option work for might 2] some previous “gross case that unit size in Units, operation OG & E days at the ...MW and sulfur content of the fuel are preclude pro- would & from but major variables” needed “in order to ducing electricity higher levels when predict future retrofit costs.” Id. at 1285. Br. Opening needed.” Pet. at 29 n. 18. Ultimately, the EPA concluded that “the But the EPA its analysis assumed in use the lower sulfur coal alone would plants operate at a 100% capaci- reduce the capital the scrubber Document, factor. ty Support Technical about million or 3%.” Id. at 1284. $7 Giv- JA 1348. en we must defer the EPA’s techni- sure, dissenting To be our colleague judgments, say cal we cannot the EPA raises a number of valid concerns about arbitrarily acted on the basis of the record actions, we acknowledge us petitioners’ arguments before and the But, that this is a close ultimately, case. their brief. cannot adopt analysis given OG & E’s of, provided that the EPA was aware B. 2009 Cost Estimates explanations contradicting, petitioners argue instance, comments.10 For improperly adjusted the 2009 Cost heavily contend relied too Estimates in promulgating the Peti- FIP. sulfur content fuel in downsizing First, arguments. tioners make three “A the scrubbers. scrubber must be sized argue un- potential to reflect the maximum heat in- made put facility, adjustments site-specific from the reasonable number is essentially facility petitioners. the a put by same whether numbers forth See- 10. The dissent petitioners argue The argues 9. that we should not EPA de- "[t]he serves no deference technical determina- [on the afford EPA deference because the EPA’s tions], however, support it does not a where speak directly consultant did not to OG & E first, contradicting conclusion reasonable, Oklahoma’s did not Pet. Br. at visit the site. 19 n. 9. analysis.” detailed technical Dis- They authority proposition. cite no for this sent at 1225. the dissent does not Further, the its final EPA said in rule that it disagree that the with our conclusion & “met OG E and consultant con- rejecting had sufficient cost esti- reasons cerning development proposal the of our mates—rife & with errors —submitted OG clarifying par- had extensive communications E. It is not clear how the dissent reached the points,” conveyed ticular technical which it to errors, that, despite conclusion these other incorporate report. consultant her portions analysis of Oklahoma's were "rea- 81,728. Fed.Reg. at sonable.” addition, In one of the EPA at 1228. vendors ond, argue that the the “overnight” cost relied the cost of the improperly specifically “noted ap- of the constant-dollar method instead design optim- and the could be equipment petitioners argue Finally, proach. opera- provide more economical ized many selectively manipulated at tion.” Id. 1229. to force OG input variables in order other Likewise, many explained of E& to install scrubbers. adjustments it made to costs instance, E. For OG & & submitted Counting and Discounts Double contingency costs proposal E’s estimated performing claim that in The plus project capital at of the total 14% basis analysis that formed the of escalation, providing any without details on FIP, dis- arbitrarily the EPA consultant number was calculated. Revised how this petition- counted some of costs Analysis, JA at BART Cosh-Effectiveness analysis. Reviewing in their ers had used flagged The consultant this number 1520. record, adjust- we do believe high, noting that the Control Cost Man- arbitrary capricious. ments were only permits ual the consideration a explained the each basis for costs. “A contingency limited number of adjustments example, it made. For in a cost effectiveness contingency factor quotes EPA discounted vendor reflect (and applied analysis ‘should be reserved likely multi- building efficiencies from to) incur only units. Revised BART those items could a ple identical Cost- Analysis, JA at 1530-31. It Effectiveness unanticipated reasonable but increase but applied a 5% discount after “search of demolition, directly are not related range literature revealed 4% fabrication, sys- installation of the optimized savings equipment.” 10% from tem,’” the said. Id. at 1521 consultant Comments, Response to Technical JA Manual, Chapter (quoting Control Cost 1229. Concepts and Methodol- Cost Estimation: Further, provided 2-30). 2.5.4, extensive In ogy, p. the absence of Sec. response to the comments on estimate, & any justification for OG E’s point. petitioners argued during adjusted contingency consultant period the notice-and-comment purchased equip- standard 3% EPA should not have assumed that the ment costs. Id. already quotes multiple- did not contain Similarly, adequately ex- consultant unit discount because the vendors knew plained apply a discount to decision constructing multiple were units. by OG & E. the “owner’s costs” estimated why response, the EPA explained be- E “owner’s cost” at 5% of OG & estimated factor in quotes lieved these did not effi- capital expended, higher total much ciency Id. E discounts. at 1228. OG & had in other the 2% its consultant used single-unit specifically had asked for esti- analyses. mates; prices OG & used in its acknowledged that owners incur consultant “exactly report per-unit were double some costs related to construction. prices quotes.” the vendor Id. at 1229. many explained But the consultant There “no evidence of these in costs that & included quotes multiple vendor considered unit dis- estimate of costs”—such as site “owner’s counts,” though even on common “[biased already been included un- oversight industry expected to practice, [the EPA] —had engineer- der capital the indirect costs multiple see in vendor discounts for units Id. In specific ing/procurement OG & E’s site cost estimates.” Id. and construction. this, light of the consultant trarily removed own- accepted some site-specific numbers (“Owner’s analysis. er’s costs from the Second, and not others. petitioners again separately costs are not in BART included reiterate complaints about the EPA’s ad- analyses cost effectiveness and have been justments Third, to its estimates. peti- here.”). more than double counted tioners argue that the EPA assumed too long of a useful life for do types adjust- We not believe these scrubbers. arbitrary ments were capricious. or a) Site-specific costs Moreover, even after the EPA made these adjustments, at least some of these site- First, petitioners argue that specific higher costs were than generic only chose adopt site-specific cost numbers the EPA could otherwise have estimates that higher were than gener- See, (“This e.g., used. id. at change ic estimates used in the manual. We can- reduces the engineering procurement not agree. As EPA explained, it used $12,733,100 at Sooner and site-specific numbers when there $12,944,277 Muskogee. These values was, fact, in accurate sup- documentation — high are still compared to estimates based porting departure from the manual. Re- on the Cost Manual pur- method of 10% sponse to Comments, Technical JA at 1273 (footnotes chased equipment costs.” omit- (“We used the Control Cost Methodology ted)). fact, consultant con- costs, (overnight inflation, no AFUDC, no cluded that the EPA’s cost estimates were etc.) taxes, no income site-specific val- likely higher than actual costs would be. ues they when were valuable and cor- (“Actual costs could be even rect.”). Petitioners want us to view it as lower as I was unable to all correct suspicious that the EPA accepted the site- overestimates that I identified due to lack specific estimates they where were lower calculations.”). support underlying generic numbers in guide- lines. But one could equally find it suspi- 2) Constantr-Dollar Basis petitioners cious that the did provide Petitioners argue also that the EPA de- documentation for its estimates that were parted from the Control Cost Manual greater much generic than the cost num- removing costs aside from inflation from bers the manual. many Given that above, its estimates. As we see no merit the site-specific numbers provided to the to this argument. petitioners have EPA were not properly documented in persuasive made a case their briefs guidelines, accordance with the we do not that either the methodology EPA’s con- arbitrary find it capricious or flicts with the manual11 or that the EPA rejected them. only conceded it should have excluded in- flation. b) counting Double Manipulation Selective petitioners argue that the EPA relied on flawed assumptions when it re-

Finally, claim the EPA duced selectively some of the cost manipulated estimates for dou- its data to meet its counting desired result. ble petitioners argue Again, overestimation. EPA manipulated though, ways. data three the consultant and thor- First, petitioners argue that oughly the EPA arbi- why they documented made these We necessarily endorsing are not arguments to abandon the made in approach costing methodology. hearing We the administrative that the manual only appeal note support chose on methodology. did not the EPA's

1220 Option high-sulfur analyzing coal no for revers- use see basis adjustments. We comments, then, response in its ground. but decision this ing the EPA’s operate in would said the scrubbers e) life of scrubbers Useful mild, environment assum- the low-sulfur years. ing thirty a useful life of This argue that the Finally, petitioners the inaccurate argument premised on an of life for long too a useful EPA assumed of the EPA’s comments. characterization longer The the useful life the scrubbers. context, the EPA said that even scrub- scrubbers, effective the more cost have high-sulfur environments use- The EPA assumed bers appear to be. will thirty years: analysis. ful lives of at least thirty years life in its a useful of EPA de- argue that petitioners The use of subject application, a from the Control Cost Manual’s parted from low sulfur scrubber to remove S02 twenty years for useful life of standard coal, a a is mild environment for scrub- systems. large pollution control ber, applica- high compared sulfur tions, already have demonstrated which why adequately explained But poten- year SO corrosion thirty a useful it chose assume life lifetimes. in a plugging tial and low bag issues acknowledge, years. petitioners As the are much lower than application sulfur refer- Manual does not the Control Cost high application. in a sulfur comparable any specific life for scrubbers. ence useful Therefore, Opening Pet. Br. Comments, JA at Response to Technical considered, among added). other factors: (emphasis 1264 1) fact installed be- that scrubbers Finally, petitioners argue 2) use; 1975 are still in tween and 1985 life EPA has a shorter useful for assumed estimates handbooks standards from cost projects. attached to other scrubbers the fact that published papers, raise petitioners did not this 30-year has assumed lifetime regarding the useful particular argument for since “at least 1981.” See scrubbers during life of scrubbers adminis- explain petitioners at 1263. The do not JA CAA, period. trative review Under why explanation inadequate.12 “[ojnly objection rule review

Instead, procedure which was raised rea- petitioners argue specificity period unjustified during sonable for EPA’s decision was because the public comment.” U.S.C. EPA assumed that system 5 to lifetime varies from 12. characterize the departing citing years, years from the manual's standard useful being typical,” with 20 unsup- twenty solely years life of based on an Significant report. advances have a 1980 ported significant "that ad- determination been made in the material of construction have made in material vances been baghouse design publication. since this baghouse design construction and since this Further, report cited the 1981 EPA/TVA Opening publication." Pet. Br. at 34. But above, Dry Sy- FGD Review of "Technical thirty- merely explaining the EPA was Spray tems and Economic Evaluation dry year useful scrubbers was reason- life for year Dryer System” a 30 FGD assumes able even in the context the other control SDA/FF, life economic and tax for an which systems actually mentioned in the manual: Regardless, includes the fabric filter. our & E Control Cost also asserts scrubber, year which for a in- estimate year Manual a 20 useful life assumes baghouse, cludes is well within large citing pollution systems, air ported range. years baghouse filter and 20 a fabric Comments, Response JA at Technical years years for The cite for the SCR. (footnotes omitted). filters, baghouse actually says: “For fabric

1221 7607(d)(7)(B); see, per-deciview Bu- method. e.g., Am. Farm This argument is EPA, 538 reau Fed’n F.3d misguided. rejected The EPA the SIP (D.C.Cir.2009) curiam) (“In the com- (per because the flawed cost estimates. in response to the EPA’s ments submitted promulgating its implementa- When own revocation of annual stan- proposed the plan, tion did not need to use the same dard, argued petitioners the environmental metric as Oklahoma. The guidelines only that the record evidence demonstrat- merely permit the au- BART-determining effects from coarse long-term ed adverse thority per to use dollar deciview as they did not their exposure; PM raise optional method of evaluating cost effec- argument that an annual standard current tiveness. pt. app. C.F.R. necessary prevent is effects adverse Y(IV)(E)(1).13 exposure.”). The EPA from short-term rule, And in final the the EPA explained brief, jurisdictional bar in its raised this why it use dollar-per-deciview did not the 9; Response petition- EPA Br. at n.43 the “Generally metric used Oklahoma. no in response reply. ers offered their speaking, the metric if while can be useful Therefore, even if had mer- argument applied, thoughtfully we view the use it, petition we decline consider it in this the metric as level suggesting a $/deciview for review. precision visibility in the calculation of a Sig- C. Would Not Have Scrubbers justified impacts many that not in Impact Visibility on 81,747. Fed.Reg. cases.” 76 nificant metric, has never mandated the use of this petitioners Finally, assert developed and has not ac- “thresholds of proposed limits in the FIP emissions ceptable per improvement.” costs deciview a significant impact would not have on federal managers in While the land have visibility region. 1) thresholds, argue: developed that the EPA have these thresholds should used dollar-per-deciview apparently developed input method in evaluat- were without ing visibility installing in benefits from EPA and without notice-and-eom- scrubbers; imper- that the EPA ment review. Br. at 54 n. 13. missibly aggregated visibility improve- this, light arbitrary we do not find it ments the scrubbers would create across use capricious that chose not to Neither facilities. of these claims has dollar-per-deciview metric evaluat- merit. ing creating the FIP. We options therefore conclude that argument suggests

Oklahoma first should dollar-per-deci- rejected visibility analysis have it con- SIP, proves ducted in the which dollar- used the view measurement the scrubbers note, however, “compliance its final We in both defined as annualized —total ($), ($/ton), in its brief the rule and EPA asserts effectiveness and incre- guidelines require dollar-per- the use of the ($/ton), mental cost effectiveness and/or evaluating ton metric in cost effectiveness. (such as other cost-effectiveness measures guidelines themselves are a bit unclear. $/deciview).” Y(IV)(E)(1) app. (emphasis effectiveness, In the section on cost added). guidelines dollar-per-ton only mention rule here on We do not whether the Y(IV)(D)(4)(c). pt. app. 40 C.F.R. metric. justified rejecting would be a SIP because guidelines later state dollar-per-deciview alternatives, it relied metric. evaluating you “we recommend (or only charts) We hold it was reasonable for develop displaying a chart includes, dollar-per-ton despite EPA to metric use each of alternatives” factors, compliance analysis. among earlier cost of Oklahoma’s visibility determinations on Pet. to make lacks merit. See are cost effective facility-by-facility basis. See JA at Br. Reply at 16. (‘Whether a SIP reviewing proposing argue that the next petitioners The states, FIP, EPA, is like individual its own visibility im- aggregated the impermissibly visibility improve- the required consider make facilities to the across provements facili- on a ment associated with scrubbers peti- more effective. The look scrubbers basis.”). ty-by-facility the that this evidenced say tioners improvement to the total EPA’s reference Likewise, the petitioners argue that (2.89 deciviews) re- that would visibility provide EPA did not sufficient notice on all four of from scrubbers placing sult in its rule. The approach it used final the im- separately, these units. Viewed a new met- petitioners say the used from the addition of scrubbers provements days visibility improvement ric— —that not be the cost of each unit would worth at before. Even if this it had never used scrubbers, say. petitioners merit, it we cannot consider argument has EPA refer- agree While we may only appeal. Again, we address visibility improve- aggregated enced the the rule- during issues were raised areas, I we do not ment across the Class above, it making process. As discussed guide that it used number its agree could petitioners not matter that the does Instead, it the im- analysis. evaluated objection have their before the raised The Re- facility-by-facility. provements “Rather, final promulgation of the rule. in- Technical Comments sponse raise requires petitioner a to first CAA visibility improvement cludes data on objection peti- agency through areas, broken at a of different number for Appalachian tion reconsideration.” by facility. See at 1495-98. down JA Co., F.3d at 1066. We there- Power Further, modeling “indi- the EPA said its fore decline to consider the visibility improvements antici- cates that argument here. See U.S.C. dry scrub- from the installation of pated 7607(d)(7)(B) (“If § Administrator facility reducing at will result in bers each pro- fuses to convene reconsideration [a facility ... from impacts modeled each may review of ceeding], person such seek nearby I all areas to levels below 0.5 Class court of such in the United States refusal dv, greater than 1.0 improvements dv circuit....” appeals appropriate Fed.Reg. I areas.” at some See Class added)). (emphasis added). 81,739 (emphasis y petitioners argue that the EPA visibility erred because considered the arguments In concern- addition to these improvement facility-by-facility instead of analysis, ing EPA’s substantive unit-by-unit. argument if Even had challenges a number of petitioners raise merit, jurisdiction no to consider have promul- procedures used objec- petitioners never raised this it. First, they argue gating rule. during rulemaking process. tion FIP in the promulgate 7607(d)(7)(B) objec- (“Only U.S.C. disap- the agency same action which which procedure tion a rule or was Second, ar- proves SIP. specificity during raised with reasonable authority to the EPA lost the gue period public (including comment agency a FIP because the promulgate any public hearing) may raised during be duty review.”). years fact, failed to act within two after judicial triggered. a FIP was first actually promulgate that the EPA needed commented high The CAA creates a bar for state has failed to required make the SIP petitioner challenging an EPA action on submission or the EPA has disapproved procedural grounds. petitioner must part of the duty state’s SIP. This continues 1) prove: that the failure to observe the to exist “unless the State corrects the defi- procedure “arbitrary capricious”; ciency, and the approves Administrator 2) objection was “raised with rea- revision, plan or plan the Ad- before specificity during sonable the period for ministrator promulgates such Federal im- public comment”; and that the errors plementation 7410(c)(1) plan.” § (empha- were “so serious and related to matters of added). sis Once issued findings such central relevance to the rule that that Oklahoma failed to submit the re- there ais substantial likelihood that the quired SIP under the Regional Rule, Haze rule would have been significantly changed the EPA had an obligation to promulgate a if such errors had not been made.” 42 FIP. The statute itself makes clear that (d)(8). 7607(d)(9)(D),(d)(7), § U.S.C. “The the mere filing of a SIP Oklahoma does essential message of rigorous so a stan- not relieve the EPA of duty. its And the dard Congress is that was concerned that petitioners do point any not to language rulemaking EPA’s casually not be over- requires the EPA to delay promul- reasons, procedural turned for and we of gation of a FIP until it rules on a proposed respect course must judgment.” Si- out, SIP. As the EPA points such a rule Costle, erra Club v. 657 F.2d essentially nullify any time limits (D.C.Cir.1981). the EPA placed on states. States could petitioners The argue first that the EPA forestall promulgation of a FIP violated required procedures by promul- submitting one inadequate SIP after an- gating its FIP in the same action in which other. it disapproved the SIP. petitioners The case, In any if agreed even we argue the statute requires the EPA first EPA should not have promulgated the FIP take action on the says, SIP because it in the rejected SIP, same action as it it according petitioners, to the “EPA is not petitioners clear the would meet the propose shall a FIP ‘unless State cor- high bar for overturning an EPA action on rects the deficiency,’ thereby reflecting procedural grounds. It poor poli- be Congress’s intention for States to have the cy try to to distinguish between the SIP power design to their own SIP and have and FIP in a single action. But peti- opportunity an to correct a SIP before a tioners make no attempt pro- to show the FIP is issued.” Pet. Opening Br. at 40 cedural error was “so serious and related 7410(c)). (quoting § It also a policy makes to matters of such central relevance to the argument that permitting the EPA to dis- rule that there is substantial likelihood approve SIPs the same action in which that the rule significantly would have been promulgates it a FIP will “blur [the] dis- changed if such errors not had been tinction” between the EPA’s role in re- (d)(8). 7607(d)(9)(D), § Indeed, made.” af- viewing promulgating SIPs and FIPs. Id. ter the EPA heightened raised this stan- at 41. procedural dard of review of actions in its do agree We not the EPA’s brief, petitioners any were silent as to procedural actions violated the require issue regarding procedural deficiency this ments of the CAA. The parsing reply their brief. of the statute quota relies on a truncated 7410(c)(1), tion. § Under petitioners U.S.C. also assert EPA must create a FIP after either the EPA violated statute because why 7410(c)(1) explain do not that the “Administrator says would not also control implementation principles Brock promulgate Federal

shall “clearly The provision case. here is years within 2 after” this plan time action, spur trig- EPA] a FIP to duty promulgate [the is intended scope authority.” Id. at argue [its] the EPA limit gered. In the promulgate its FIP be- 106 S.Ct. 1834. absence authority lost Congress, appro- had indication from years passed than two cause more remedy compel priate simply suit finding the EPA made its initial since action, agency not to eliminate the EPA’s Although to submit a SIP. Oklahoma failed Sulphur authority to file a FIP. See Mont. undoubtedly requires that the statute EPA, 1174, 1190- & Co. v. 666 F.3d years, a FIP within two Chem. promulgate (9th Cir.2012). that it to reason loses does stand two-year period after ability do so VI Rather, remedy

expires. appropriate the statute is when violates conclusion, we hold that the had action. compelling agency order authority to review Oklahoma’s BART Moreover, it exercised determinations. rejected argu- The Court Supreme authority Accordingly, we properly. petitioners’ argument ment similar to the petition DENY the for review 253, County, 476 in Brock v. Pierce U.S. stay final The hear- pending EPA’s rule. (1986). At 106 S.Ct. 90 L.Ed.2d 248 ing by panel hereby is lifted. merits requiring a issue Brock law Secretary a final of Labor “issue determi- KELLY, concurring in Judge, Circuit [Comprehensive nation as to misuse of part part. dissenting and by a Employment Training Act] and funds days within I grant recipient Although agree 120 after with much of the ceiving analysis, a such complaint alleging respect misuse.” court’s I dissent with to Id, Brock, 254-55,106 (quota- 1834 arbi- at S.Ct. whether certain EPA actions were omitted). capricious. Op. The that case trary tion and See Ct. Pt. IV(A) power argued Secretary that the lost his the EPA’s calculations (analyzing not a recover those funds if he did make emissions and its determination baseline days. feasibility final determination within Id. the technical of the regarding 255,106 S.Ct. 1834. smaller scrubbers on which it based its Therefore, I analysis). would eost/benefit statutory In the of a clear absence more grant petition review. directive, this accept the Court refused matter, Rather, “there less an initial the court argument. when are As states challenges for failure to these “[w]e [to drastic remedies available review arbitrary statutory meet a deadline” —such a mo- EPA’s the same FIP] as under compel agency capricious tion to action—“courts standard we used to evaluate rejection Op. Ct. Congress should not assume that intended SIP.” notes, however, act.” that “we agency power to lose Pt. IV. court requires do a recognizing 1834. The Court “would be so while S.Ct. evaluating every slightly perspective: most reluctant to conclude that fail- different guide- procedural a EPA’s own choices under the agency ure of an to observe lines, opposed evaluating ac- its choice to requirement subsequent agency voids tion, reject guide- especially the Oklahoma SIP under important public when Id.; 111(B), n. id. at Pt. rights at stake.” lines.” see also are (“We recognize that the EPA has less Option was based on OG & E’s contin- when it takes reject discretion actions to a use ued of low-sulfur coal—the correct SIP promulgates than does when it a emissions required baseline as by the FIP.”). case, That usually be the but CCM. changed EPA the size rejected smaller, here the Oklahoma’s SIP of the scrubbers less expensive promulgated own FIP the same ones. Id. at 1514-16. argued Petitioners rulemaking Many action. of the same rea- extensively that these smaller scrubbers rejecting sons for the SIP were See, used technically were e.g., infeasible. id. at Therefore, justify the FIP. to the extent it particular, 1099-1102. the comments difference, I am makes not we point convinced out the size of a scrubber is owe more deference to the in dependent type on the of coal used but evaluating challenges gas we would flow and the potential maximum heat if solely rejection (OG this action 1101-02, were input. Id. at & E EPA state comments); SIP. (OG see also id. at 384-430 & comments). E state rejected Oklahoma’s cost esti- provided mates scrubbers and op- two in response admitted type tions of its own. These options arbitrarily of coal alone does not affect scrubber size (1) capriciously assumed &OG and its estimate for a smaller scrubber burn coal burning are not and was a result of oversimplification. id. (2) plans have no Therefore, to burn and used scrub- at 1283-84. only question technically bers that do not fit and are provided whether the EPA support for feasible. feasibility the technical of the smaller it ultimately required. scrubbers purposes analy- For of the cost benefit EPA, however, exclusively relies almost sis, (CCM) Cost Control Manual re- a cost model OG & E’s consultant Sar- quires that anticipated annual emissions be gent & a Lundy in different action and its upon calculated past based actual emis- statements amount of S02 51, sions. 40 pt. C.F.R. App. moved can in fact affect scrubber at size Y(IV)(D)(4)(d). The EPA ignored the his- 1283, least somewhat. See id. at 1348. Option torical emissions baseline in 1. OG report This why does describe it mat- & E using has been low-sulfur coal its and how it ters or would affect the size of continued use would have resulted in case. scrubbers this 14,000 removing scrubbers about tons year per power at plant. each affected rejected The EPA Oklahoma’s evidentia- S02 EPA, however, JA 1106. The ry support assumed with no clear evidence of its & E begin using high-sulfur OG would to support contrary own its conclusion. coal which would result in the of Usually grants removal the court deference to the 43,000 46,000 roughly between tons EPA’s technical determinations. See San per year at power Stiles, each affected plant. Juan Citizens Alliance v. 654 F.3d S02 1106, (10th Cir.2011). Id. at 1038, 1513-14. Petitioners com- 1045 The EPA de- that any assumption deference, however, mented the EPA serves no such where change of a improper in coal was and it does not support conclusion contradict- 1088, unsupportable. first, reasonable, See id. at 1096-99 ing Oklahoma’s detailed (OG comments); E& EPA technical 384-430; see also id. conclusion. See JA (OG comments). 300-02, 313 & E state Corp. Lockheed Martin v. Admin. Review Knowing Bd., Labor, Dep’t 11-9524, calculations violated the U.S. No. manual, 1121, 1128-29, developed Option 2398691, 2. F.3d 2013 WL scrubbers, not un- 2013). and its conclusion was 4, I (10th Therefore

*3 June Cir. failure of the reasonable. conclude sig- evidence agency provide authority to re- Assuming the EPA has nificantly scrubber was sufficient smaller did, in the manner it Oklahoma’s SIP view arbitrary and & E’s needs meet OG promulgation rejection of the SIP capricious. arbitrary capri- FIP its own noting that Finally, is worth respectfully I dissent Accordingly, cious. is distinct program haze regional on this issue. power given the states. amount of Council, See, v. Nat. Res. e.g., Train Def. 1470, 79, Inc., 60, S.Ct. U.S. 39,104, (1975); Fed.Reg.

L.Ed.2d 731 2005) (“[H]ow

39,137 states make (July or how deter-

BART determinations subject BART” are which sources

mine Act and “where the among

are issues Congress indicate that history legislative America, UNITED STATES insuring special evinced a concern Plaintiff-Appellee, mak- would be the decision that States ers.”). of reasons for are a number There of which is that not the least approach, CHAVEZ, Eugenio Francisco aesthet- purely standards are goals and Pancho, Defendant- known directly to health ic related rather Appellant. requires safety. The EPA’s rule here dollar billion & to make $1.2 No. 11-1419. years next five investment over the estimate, will, result even under EPA’s Appeals, States Court of United visibility. More- appreciable change no Circuit. Tenth over, no this investment there is evidence on air will have effect whatsoever July will, however, result in quality. surely It Oklahoma rate- changes to what

adverse electricity.

payers pay will at least some

Although the EPA has

authority to review BART determinations SIP, authority a it has no

within state’s approval simply of SIP based

condition control preference particular

on a EPA, Texas 690 F.3d

measure.

(5th Cir.2012); City EME Homer Gen- see EPA,

eration, L.P. v. 696 F.3d

(D.C.Cir.2012) rule (reviewing a different concluding “prohibits the CAA using process from the SIP to force measures”). adopt specific control

States

Oklahoma considered the and result- large investment

ing benefit of such notes OG & E

Case Details

Case Name: Oklahoma v. United States Environmental Protection Agency

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jul 19, 2013

Citation: 723 F.3d 1201

Docket Number: 12-9526, 12-9527

Court Abbreviation: 10th Cir.