SIERRA CLUB DE PUERTO RICO, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and Gina McCarthy, Respondents. Energy Answers Arecibo, LLC, Intervenor.
No. 14-1138.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 14, 2016. Decided March 4, 2016.
Andrew J. Doyle, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the briefs were John C. Cruden, Assistаnt Attorney General, Brian L. Doster and Elliott Zenick, Counsel, U.S. Environmental Protection Agency.
Brendan K. Collins argued the cause and filed the brief for intervenor Energy Answers Arecibo, LLC.
Before WILKINS, Circuit Judge, and EDWARDS and SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge:
There is a lead problem in Arecibo, Puerto Rico, where Intervenor-Respondent, Energy Answers Arecibo LLC, seeks to build a waste incinerator. Energy An
The CAA provides for two permitting programs, which the parties refer to as “Prevention of Significant Deterioration” (“PSD”), see
Energy Answers’ plant is forecast to emit 0.31 tons per year of lead, so it falls below the 100 ton per year emission threshold that triggers the strict NNSR compliance measures. The crux of Petitioners’ claim is that lead is dangerous in very small amounts, and there is already too much of it in the air at the proposed incinerator site. Petitioners argue the regulatory scheme unreasonably creates a loophole for the incinerator, whose lead emissions will make the nonattainment problem worse. Unfortunately for Petitioners, their challenge comes too late. Accordingly, we dismiss Sierra Club’s petition as time-barred under
I.
Under the CAA, the EPA must create National Ambient Air Quality Standards (“NAAQS”).
EPA last revised the NAAQS for lead in 2008 and made them more stringent. As the agency recognizes, lead exerts “a broad array of deleterious effects on multiple organ systems.” National Ambient Air Quality Standards for Lead, 73 Fed.Reg. 66,964, 66,975 (Nov. 12, 2008). It gets into our bloodstream and affects neurological development and function, reproduction and physical development, kidney function, cardiovascular function, and immune funсtion. Id. Lead is especially bad for children. The Centers for Disease Control warns there is “no ‘safe’ threshold” for the
In order to achieve and maintain the NAAQS, the CAA requires states to regulate new construction of stationary sources of pollution. They do so through the PSD and NNSR programs, according to which new sources must оbtain either PSD or NNSR state permits prior to construction.2 See
PSD permits are necessary in attainment areas.
NNSR permits are required in nonattainment areas.
The statute is not the end of the story, however, because
Under the NNSR program, the major source must meet two significant requirements in particular before it can obtain an NNSR permit. It must install technology that will achieve the “lowest achievable emission rate” (“LAER”),
II.
The EPA administers Puerto Rico’s PSD program,
In May 2012, the EPA announced through a public notice its preliminary determination to approve the PSD permit for the waste incinerator. The notice listed over 12 pollutants that would be subject to BACT under the PSD program. During a lengthy public comment period, the agency received 1,100 written comments, some of which expressed concern about how the nonattainment designation for lead factored into the approval process. The EPA let the community know that the PSD permit did not regulate lead in the nonattainment area, that any pollutants not subject to PSD would be addressed in the NNSR permit issued by Puerto Rico, but that the facility would not emit 100 tons per year of lead, in any case and so was not subject to the NNSR requirements.
In June 2013, the EPA issued the final PSD permit decision. The next month, five petitions for review from this decision were filed with the Environmental Appeals Board (“EAB”). The EAB denied the petitions and upheld the permit, except for a limited remand on the issue of biogenic greenhouse gas emissions that does not affect our case. The EAB rejected Petitioners’ argument that the PSD permit should regulate lead, because nonаttainment pollutants are exempted from PSD regulation, and the authority to administer the NNSR program resides with Puerto Rico.
In December 2014, Puerto Rico issued Energy Answers its NNSR permit. No NNSR restrictions applied to its lead emissions since the plant’s potential to emit was projected to be less than 100 tons per year for lead. However, Puerto Rico included a “Minor New Source” permit restricting lead emissions to 0.31 tons per year, consistent with Energy Answers’ previous projections. Minor source review is not at issue in our case, but it is another way to impose preconstruction requirements on sources that do not qualify as “major” in the servicе of attaining and maintaining the NAAQS. See DAVID R. WOOLEY & ELIZABETH M. MORSS, CLEAN AIR ACT HANDBOOK: A PRACTICAL GUIDE TO COMPLIANCE 232 (25th ed.2015) (citing
In July of 2014, Petitioners sought review in our Court of the 1980 rule, alleging that it violated the CAA. The petition also nominally asked for review of the EPA decision granting the PSD permit, and the EAB decision, but did not further elaborate on the permit or permit appeal. The EPA moved to dismiss the case, arguing in pаrt that the petition was time-barred. We referred the case to a merits panel, granted Energy Answers leave to intervene, and now dismiss the petition.
III.
Sierra Club argues that in enacting the 1980 rule, EPA impermissibly interpreted “any air pollutant” in the definition of a
A.
Before reaching the merits, we must decidе if Sierra Club’s petition is timely. Motor & Equip. Mfrs. Ass‘n v. Nichols, 142 F.3d 449, 460 (D.C.Cir.1998) (describing the time limit pursuant to
Sierra Club contends that the grounds for its challenge arose on May 19, 2014, when the EPA published notice of Energy Answers’ final permit. Its argument almost exclusively relies on Coalition for Responsible Regulation, Inc. v. Environmental Protection Agency (Coalition), 684 F.3d 102, 129 (D.C.Cir.2012), rev’d in part on other grounds sub nom, UARG, — U.S. —, 134 S.Ct. 2427, 189 L.Ed.2d 372. Under Sierra Club’s logic, its claim ripened when the EPA granted the PSD permit, and they timely filed for review within 60 days of the permit decision, on July 17, 2014.
We disagree. Sierra Club exaggerates the parallels between Coalition and its own petition. The Coalition litigation arose after the EPA promulgated the “Tailpipe Rule,” which restricted greenhouse gas emissions from cars and light trucks. 684 F.3d at 115. By virtue of this rule, greenhouse gases became a pollutant regulated under the CAA, which triggered other parts of the statute, including PSD review. Id. (explaining that under PSD, a source becomes a major emitting facility when it emits certain levels of “any air pollutant,” meaning any air pollutant regu
We decided that the Tailpipe Rule “ripened” industry petitioners’ challenges because of the substantial probability of injury to them, i.e., their members now had to get PSD permits. Id. at 131. A few points were particularly important in reaching this conclusion. First, we acknowledged that petitioners offered a legal argument that was available during the earlier, normal judicial review period, and that their proffered “new ground” was a factual development, but said such circumstances alone “fail[ed] to demonstrate” untimeliness. Id. at 130. What really mattered was that if petitioners had challenged EPA’s interpretation of the PSD permitting triggers in 1978, 1980, or 2002, their injuries would have been speculative, and we would have lacked jurisdiction under Article III. Id. at 131. We were mindful of past case law “assur[ing] petitioners with unripe claims that ‘they will not be foreclosed from judicial review ... when the appropriаte time comes.’” Id. (citing Grand Canyon Air Tour Coal. v. Fed. Aviation Admin., 154 F.3d 455, 473 (D.C.Cir.1998)).
In addition to Coalition, we have determined that petitioners presented after-arising grounds where they could show that a decision by our Court “changed the legal landscape.” Honeywell Int‘l, Inc. v. Envtl. Prot. Agency, 705 F.3d 470, 473 (D.C.Cir.2013) (explaining that the Arkema decision, deeming permanent certain pollutant transfers in a cap-and-trade program, created the premise on which Honeywell’s lawsuit was based). On the other hand, we have rejected attempts to manufacture ripeness. We have not been swayed by arguments that the instant parties were not in existence back when the original rule was promulgated. See Coal River Energy, LLC v. Jewell, 751 F.3d 659, 662-63 (D.C.Cir.2014) (construing similar provision under the Surface Mining Control and Reclamation Act). Nor havе we been persuaded that “the mere application of a regulation,” without anything more, constitutes after-arising grounds. ARTBA II, 705 F.3d at 458. If a party could trigger a new 60-day statute of limitations period simply because a regulation was being enforced against it for the first time, our “concerns about preserving the consequencеs of failing to bring a challenge within 60 days of a regulation’s promulgation would be meaningless.” Id. (quotation marks omitted); see also Med. Waste Inst. & Energy Recovery Council v. Envtl. Prot. Agency, 645 F.3d 420, 426-27 (D.C.Cir.2011) (declining to review an objection raised during the public comment period but not filed within sixty days of the rule).
Simply put, Sierra Club presents us with something closer to the mere application of an old regulation, like in ARTBA II, as
*
As Sierra Club does not bring its petition within 60 days of any after-arising grounds, its petition is time-barred under
So ordered.