WILDEARTH GUARDIANS, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Gina McCarthy, in her official capacity as Administrator of the U.S. Environmental Protection Agency, Respondents. Arizona Public Service Company, Intervenor-Respondent.
No. 13-9524.
United States Court of Appeals, Tenth Circuit.
July 23, 2014.
759 F.3d 1196
The situation we confront in this case is more than a little reminiscent of the one the Supreme Court faced in Vieth, where the plaintiffs sought to challenge a political gerrymander as unconstitutional. There, 18 years of experimenting by various courts failed to yield any sure standards for litigating those sorts of cases. Here, we encounter an arguably longer history of failed efforts to develop standards for litigating Guarantee Clause cases involving individual citizen initiatives—one extending into the nineteenth century. There, the plaintiffs sought to identify and defend as workable their own set of legal standards at the motion to dismiss stage, but the Court found those efforts unavailing and affirmed the dismissal of the complaint. Here, the plaintiffs haven‘t even attempted to identify workable legal standards for adjudicating their case despite many opportunities over many years. If the law‘s promise of treating like cases alike is to mean something, this case should be put to bed now as Vieth‘s was then, rather than being destined to drag on forlornly to the same inevitable end. I respectfully dissent.
Martha C. Mann, Environmental Defense Section, (Robert G. Dreher, Acting Assistant Attorney General, and Kristen Byrnes Floom, Environmental Defense Section, with her on the brief), United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for Respondents.
Makram B. Jaber, (William L. Wehrum, Andrew J. Turner, Andrew D. Knudsen, with him on the brief), Hunton & Williams LLP, Washington, DC, for Intervenor-Respondent.
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
HARTZ, Circuit Judge.
On August 24, 2012, the Environmental Protection Agency (EPA) promulgated a final Federal Implementation Plan (FIP) to reduce regional haze by regulating emissions of nitrogen oxides (NOx) and particulate matter (PM) at the five units of the Four Corners Power Plant (the Plant) on the Navajo Reservation in northwestern New Mexico.1 WildEarth Guardians (WildEarth) filed a petition under
I. BACKGROUND
A. Regulation of Four Corners Power Plant
The Plant is a coal-fired power plant located on the Navajo Reservation near Farmington, New Mexico. It is privately owned by Arizona Public Service Company (APS) and several other utilities. APS serves as the Plant operator. At the time of the rulemaking, the Plant consisted of five units; Units 1 and 2 were each rated to a capacity of 170 mega-watts (MW), Unit 3 was rated to a capacity of 220 MW, and Units 4 and 5 were each rated to a capacity of 750 MW.
In 1977 Congress amended the Clean Air Act to authorize the EPA to regulate regional haze to remedy “any existing[] impairment of visibility in mandatory class I Federal areas which impairment results from manmade air pollution.”
The process for regulating haze resembles that for regulating air pollutants for which the EPA has set national ambient-air-quality standards (NAAQS) under
For haze reduction the EPA does not set NAAQS, but it must (1) promulgate a list of Class I areas that are designated visibility areas based on a determination by the Secretary of the Interior that each area is one “where visibility is an important value of the area,”
[1] the costs of compliance, [2] the energy and nonair quality environmental impacts of compliance, [3] any existing pollution control technology in use at the source, [4] the remaining useful life of the source, and [5] the degree of improvement in visibility which may reasonably be anticipated to result from the use of such [BART];
In the 1990 amendments to the Clean Air Act, Congress declared that in some situations Indian tribes should be treated as states for purposes of the Act. See
Because the Plant is on the Navajo Reservation, it is not regulated by any New Mexico SIP. And the Navajo Nation has never submitted a TIP that would regulate the Plant under the Clean Air Act. In 2007 the EPA issued the first FIP to cover the Plant, which set emissions limits for sulfur dioxide (SO2) and an opacity limit on various emissions. In 2009 the EPA began the rulemaking process to issue a FIP to apply regional-haze regulations to the Plant. The Plant is within 300 km of 16 Class I areas, including the Grand Canyon, Mesa Verde, and Arches National Park.3 The air quality and visibility are impaired in each of the 16 areas. See Proposed FIP, 75 Fed. Reg. at 64224.
B. The Endangered Species Act
Under the ESA, whenever a federal agency proposes an action in which it has discretion to act for the benefit of an endangered species, it must consult to insure that the action “is not likely to jeopardize the continued existence of any endangered species or threatened species.”
The first step in the consultation process is to determine whether the proposed action “may affect a listed species or a critical habitat“; “[i]f so, the agency must consult.” Rio Grande Silvery Minnow, 601 F.3d 1096 at 1105. If the agency decides its action may affect a listed species, it can decide whether to pursue formal or informal consultation. See
C. Rulemaking at the Plant
In August 2009 the EPA published an Advanced Notice of Proposed Rulemaking asking for comments on its plan to regulate the Plant under the regional-haze program.4 The New Mexico Attorney General commented that the EPA should consider the benefits of any control technologies on mercury emissions because mercury emissions from the Plant were high and affected the health of two nearby species of endangered fish—the Colorado pikeminnow and razorback sucker. The comment also asserted that the EPA was required to consult under the ESA on the effects of the rulemaking on endangered species. The EPA did not consult.
In October 2010 the EPA proposed a FIP for the Plant under the regional-haze rule. See Proposed FIP, 75 Fed. Reg. at 64221. The proposed FIP made a finding under the Tribal Authority Rule that it was “necessary or appropriate” to establish the BART for NOx and PM emissions. See
In November 2010, APS submitted an alternative proposal to regulate NOx and PM. One utility owner had decided to divest from the Plant, and APS bought out its share in Units 4 and 5. As a result, APS decided to close Units 1-3 of the Plant. It proposed closing Units 1-3 early, by January 1, 2014, and then receiving a two-year extension (from the date for compliance in the proposed FIP) to install new selective-catalytic-reduction technology on Units 4 and 5. The EPA found that this plan would substantially reduce NOx and PM emissions three years before the EPA proposal would require reductions and would “produce approximately 30% less NOx emissions per year than EPA‘s BART proposal beginning in 2019.”5 The EPA then prepared and circulated for comments an alternative plan incorporating (but modifying) APS‘s proposal. See
In May 2011, WildEarth and other environmental groups submitted comments on the supplemental FIP, arguing that the EPA was required to consult with the Fish and Wildlife Service under Section 7 of the ESA because the proposed FIP would have an effect on the endangered Colorado pikeminnow and razorback sucker, which live in the nearby San Juan River. WildEarth pointed to high levels of mercury and selenium emitted by the Plant and argued that the EPA had to consult “given that the EPA itself notes that its proposal could lead to greater control of mercury emissions,” which would benefit the endangered fish. WildEarth‘s comments did not suggest any specific way in which the FIP could be
D. Final FIP
The EPA promulgated its final FIP for the Plant on August 24, 2012. It found that it was necessary or appropriate to “require[e] [the Plant] to meet new emission limits for NOx and PM.” 77 Fed. Reg. at 51621. The FIP required PM emissions from Units 4 and 5 to be limited to 0.015 pounds per million British thermal units (lbs/MMBtu). See
The EPA also evaluated reductions in emissions of other pollutants that would be achieved under the two options. Under Option 1, the EPA‘s proposed BART, the EPA calculated that mercury emissions would drop from 594 lb/yr to 340 lb/yr, a decrease of approximately 43%. Under Option 2, the alternative proposed by APS, the EPA calculated that mercury emissions would drop even further—to 233 lb/year, a decrease of approximately 61%. The EPA did not estimate decreases in selenium directly, but the EPA‘s regulations allow facilities to measure total filterable PM as a surrogate for nonmercury metals, such as selenium.6 The EPA estimated that under Option 1 total PM emissions would fall from 1,564 tons per year to 1,179 tons per year, a decrease of 25%, whereas under Option 2 total PM emissions would fall from 1,564 tons per year to 886 tons per year, a decrease of approximately 43%.
The EPA also responded to comments it had received, including the WildEarth comment that it needed to consult under the ESA. It said:
EPA disagrees with the commenter that determining BART and promulgating this FIP for [the Plant] necessitates ESA Section 7 consultation. EPA understands that the U.S. Fish and Wildlife Service (FWS) is primarily concerned about the effects of mercury and selenium on endangered fish species in the San Juan River. EPA notes that under the BART Alternative [Option 2], mercury and selenium emissions will be reduced from [the Plant] due to the closure of Units 1-3. Additionally, EPA‘s national [Mercury Air Toxics Standards (MATS)] rule set new emission limits for mercury that would apply to Units 1-3 at [the Plant] if those units continue operation. EPA further notes that the goal of the Regional Haze Rule is to reduce emissions of visibility-impairing pollutants in order to restore visibility to natural conditions at the mandatory Federal Class I areas, and mercury and selenium do not affect visibility. Therefore, EPA does not have authority to regulate emissions of mercury or selenium under BART.
Final FIP, 77 Fed.Reg. at 51643-44.
WildEarth filed a petition for review on October 22, 2012.7 APS elected Option 2 of the FIP, shutting down Units 1-3 on December 30, 2013.
Under the
A. Baghouses
In its opening brief on appeal, WildEarth placed primary reliance on the argument that the EPA could have required baghouses on Units 1-3 of the Plant if consultation had convinced it of the need for further mercury and selenium emission reduction. Its theory was that in determining BART, (1) the EPA needed to consider “nonair quality environmental impacts,”
B. Timing of FIP Implementation
Recognizing that the baghouse issue is moot, WildEarth has presented its three other suggestions of how consultation could have led to reduced emissions of mercury and selenium. One suggestion, raised by WildEarth in a postbriefing letter to the court submitted under
C. Regulation of Sulfur Dioxide
WildEarth‘s other untimely suggestion, also raised in a 28(j) letter, is that the EPA could have regulated SO2 in this rulemaking and, had it chosen to do so, it could have required specific control technologies for SO2 reduction that would have further reduced mercury emissions from Units 4 and 5. This argument was not adequately presented in WildEarth‘s opening brief. SO2 was mentioned only once in the brief, in the discussion of an expert report that described benefits of various control technologies; WildEarth made no argument that the EPA could have regulated SO2 in this FIP. Hence, we decline to consider the argument.
D. Regulation of Mercury and Selenium
This leaves only WildEarth‘s fourth argument—namely, that as part of the FIP the EPA could have regulated mercury and selenium directly (rather than than as a collateral product of other regulation, such as establishing the BART) and that this discretion to regulate triggered a duty to consult. Before we address the merits of this argument, however, we must resolve whether we have jurisdiction to do so.
1. Standing
“The Constitution limits the exercise of the judicial power to ‘cases’ and ‘controversies.‘” WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1181 (10th Cir.2012). This limitation restricts the federal judicial power “to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of the law.” Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009). “The doctrine of standing is one of several doctrines that reflect this fundamental limitation.” Id. at 493.
To establish Article III standing:
a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). These three requirements are commonly referred to as injury, causality, and redressability.
WildEarth‘s alleged injury—lack of consultation before promulgation of a final FIP—is one of process, not result. For a procedural injury, the requirements for Article III standing are somewhat relaxed, or at least conceptually expanded. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n. 7 (1992). First, for an injury in fact WildEarth “need not establish with certainty that adherence to the procedures would necessarily change the agency‘s ultimate decision.” Utah v. Babbitt, 137 F.3d 1193, 1216 n. 37 (10th Cir.1998). It suffices that the procedures “are designed to protect some threatened concrete interest of [the person] that is the ultimate basis of standing.” S. Utah Wilderness Alliance v. Office of Surface Mining Reclamation & Enforcement, 620 F.3d 1227, 1234 (10th Cir.2010) (emphasis and internal quotation marks omitted). “[W]here plaintiffs properly allege a procedural violation affecting a concrete interest[,] ... the injury results not from the agency‘s decision, but from the agency‘s uninformed decisionmaking.” Id. at 1234 (emphasis and internal quotation marks omitted). Thus, WildEarth need show only that compliance with the procedural requirements could have better protected its concrete interests. Similarly, to establish redressibility it need show only that the injury—lack of an informed decision—could be redressed by requiring the agency to make a more informed decision. See id. at 1235 (“[T]he fact that [the agency] refused to issue an updated recommendation also satisfies the causation and redressability prongs—[the agency]‘s recalcitrance caused an allegedly uninformed decision, and this could be redressed by a favorable court decision, even if the Secretary‘s ultimate decision was the same.“)
The EPA and APS do not dispute (and we agree) that WildEarth has associational standing if Mike Eisenfeld, a WildEarth member who lives not far from the Plant in Farmington, has standing. But they challenge his standing under Article III.
Eisenfeld submitted an affidavit outlining the factual basis on which WildEarth asserts standing. It describes his enjoyment of the San Juan River:
My family and I enjoy floating numerous stretches of the San Juan River every year. We have a raft and our friends have river boats as well. We float the San Juan River in Farmington, as well as on stretches downstream in Utah. We swim in the river when we float. We enjoy floating the river, but normally avoid the most polluted sections as we enjoy floating in areas that
are more natural and that seem cleaner. We normally float the San Juan three times a year and intend to do so throughout the foreseeable future. We intend to float the river in June and July of this summer.
Aplt. Br. Attach. 2 (Declaration of Mike Eisenfe[l]d), at 7. It then goes on to explain the relationship between his river activities and the endangered fish:
I enjoy looking for and viewing all species of fish in the San Juan River. When I am rafting in the San Juan River or taking a walk by the river in Farmington, I often look for fish, including the Colorado pikeminnow and razorback sucker. Unfortunately, their diminished numbers makes them very hard to find. I will continue to recreate in and around the San Juan River and its tributaries, and will continue to look for fish, including the Colorado pikeminnow and razorback sucker. I hope to point out one of these fish to my children in the future. My enjoyment of the Colorado River System would be increased if the Colorado pikeminnow and razorback sucker recovered from their current endangered status and were more abundant.
Id. at 8-9.
APS first argues that Eisenfeld has not shown the requisite injury. According to APS, his alleged injury is not “concrete and particularized” because it shows only “concern over future environmental harm.” Intervenor Br. at 27 (internal quotation marks omitted). We disagree. Eisenfeld swore that he uses the river for recreational purposes and he often looks for and views the endangered fish while using the river. “[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for the purpose of standing.” S. Utah Wilderness Alliance, 620 F.3d at 1233 (internal quotation marks omitted); see also Sierra Club v. U.S. Dep‘t of Energy, 287 F.3d 1256, 1265 (10th Cir.2002) (“To establish an injury-in-fact from failure to perform a
APS‘s reliance on Wyoming v. United States Department of Interior, 674 F.3d 1220, 1237 (10th Cir.2012), is misplaced. Our holding that the petitioners lacked standing was based on their failure to claim an environmental injury, not, as APS suggests, on the ground that the potential nonenvironmental injury was too speculative.
We next turn to the argument by the EPA (joined by APS) that WildEarth has failed to show causation; that is, that WildEarth has not shown that Eisenfeld‘s injury is fairly traceable to the EPA‘s vio-
Finally, the EPA (again joined by APS) argues that WildEarth has failed to satisfy the redressibility requirement for standing. It says that this court cannot redress WildEarth‘s injury because it was not permitted to regulate mercury and selenium in this rulemaking, and therefore any decision to require the EPA to consult on the effects of mercury and selenium could not influence the final decision. As with the EPA‘s causation argument, this is a merits argument. To show redressibility for an alleged procedural violation of the ESA, a plaintiff “need[s] to show only that the relief requested—that the agency follow the correct procedures—may influence the agency‘s ultimate decision.” Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir. 2008). WildEarth contends that the EPA could have made a decision that would have further reduced mercury and selenium emissions from the Plant. EPA argues otherwise, but that is a contention that WildEarth has standing to present. If WildEarth ultimately failed to persuade us of its contention, it would lose on the merits. In resolving a standing issue, however, we must start from the premise that the plaintiff will prevail on its merits argument. See Sierra Club, 699 F.3d at 533; Salmon Spawning & Recovery Alliance v. U.S. Customs & Border Prot., 550 F.3d 1121, 1131 (Fed.Cir.2008).
Having established that WildEarth does have standing to challenge the FIP on the ground that the EPA should have consulted because the FIP could have directly regulated mercury and selenium, we turn now to the merits of the challenge.
2. Duty to Consult
WildEarth argues that the EPA had the duty to consult because the EPA had discretion to directly regulate mercury and selenium in the FIP. But even if the EPA had power to regulate these hazardous air pollutants in a FIP rulemaking,8
The ESA provides:
Each federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior or of Commerce], insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an ‘agency action‘) is not likely to jeopardize the continued existence of any endangered species or threatened species.
Action is defined as:
all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to: (a) actions intended to conserve listed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air.
We recognized this proposition in an earlier decision involving the same Plant at issue here. In Arizona Public Service Co. v. United States Environmental Protection Agency, 562 F.3d 1116, 1131 (10th Cir.2009), we considered the 2007 FIP promulgated for the Plant by the EPA. See id. at 1121. The FIP set opacity limits and emissions limits for some pollutants. See id. Environmental groups argued that the limits were inadequate and that the Tribal Authority Rule required the EPA “to submit a plan meeting the completeness criteria [that would be required for a SIP].” Id. at 1125. We rejected the claim, holding that when regulating under the Tribal Authority Rule, the EPA had discretion to regulate in steps. See id. We said that requiring the EPA to regulate as if it were promulgating a SIP would “prevent the EPA from implementing any plan as necessary or appropriate to protect air quality, absent a comprehensive analysis of all air quality problems in an area.” Id. (internal quotation marks omitted). “[S]ome regulation of the Plant,” we said, “is better than none at all.” Id.
Likewise, the EPA here decided to take action, but bounded the scope of that action. The EPA‘s authority under the Tribal Authority Rule is limited to actions that it determines to be “necessary or appropriate to protect air quality,”
Notes
III. CONCLUSION
WildEarth‘s main concern, that baghouses should have been included in the BART for Units 1-3, has been mooted by the closure of those units. And WildEarth has failed to identify any discretion of the EPA to otherwise reduce mercury and selenium pollution as part of the agency action at issue—promulgation of a FIP to reduce PM and NOx at the Plant.
We DENY WildEarth‘s petition for review.
Travis Clinton HITTSON, Petitioner-Appellee-Cross Appellant, v. GDCP WARDEN, Respondent-Appellant-Cross Appellee.
No. 12-16103.
United States Court of Appeals, Eleventh Circuit.
July 9, 2014.
759 F.3d 1210