Nat'l Envtl. Dev. Ass'n's Clean Air Project v. EPA

Jan 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1252, consolidated with 10-1254, 10-1255, 10-1256, 10-1258, 10-1259, 11-1073, 11-1080, 11-1081, 11-1090, 11-1092. On Petitions for Review of a Final Action of the U.S. EPA. The Appeals Court summarizes saying, "Several states and state regulatory agencies, together with corporations and industrial associations, petition for review of the Environmental Protection Agency's rule entitled 'Primary National Ambient Air Quality Standard for Sulfur Dioxide,' and of the subsequent denial of petitions for reconsideration of the standard. Petitioners contend, first, that EPA failed to follow notice-and-comment rulemaking procedures, and second, that the agency arbitrarily set the maximum sulfur dioxide (SO2) concentration at a level lower than statutorily authorized. For the reasons discussed more fully below, we conclude that the challenge to the rulemaking procedure is not within our jurisdiction and must be dismissed. We further conclude that EPA did not act arbitrarily in setting the level of SO2 emissions and therefore deny that portion of the petitions for review.

 

    Sulfur dioxide, a "highly reactive colorless gas," derives mostly from fossil fuel combustion. It smells like rotting eggs and, at elevated concentrations in the air, can cause acid rain. Its presence in the ambient air can cause adverse health effects,

particularly in asthmatics. After receiving comments on its rule proposal, EPA issued a final rule addressing the primary SO2 standard. 75 Fed. Reg. 35520 (June 22, 2010). EPA mandated that States must meet a new 1-hour SO2 standard using a 99th percentile form, set at 75 ppb maximum SO2 concentration. Also, EPA indicated in the rule, "we are revising our general anticipated approach toward implementation of the new 1-hour NAAQS." Instead of assessing attainment of the standard primarily by monitoring the ambient air, as it had stated it would in the proposed rule, EPA suggested it would use a "hybrid analytic approach" that would combine monitoring with computer modeling to determine compliance.

 

    Petitioners allege two errors in the EPA's proceedings. All Petitioners contend that EPA violated the notice-and-comment rulemaking provisions of the Administrative Procedure Act (APA), 5 U.S.C. § 553, by mandating a hybrid modeling-monitoring implementation approach rather than a monitoring-only approach. Only the nonstate petitioners bring the second challenge, contending that the Agency's decision to set the new 1-hour SO2 standard at 75 ppb was arbitrary and capricious.

 

    Regarding the modeling concerns, the Appeals Court indicates, "EPA explained that it expected to make initial attainment designations in 2012 based on existing monitoring capabilities, as well as 'any refined modeling the State chooses to conduct specifically for initial area designations.' 75 Fed. Reg. at 35552. That language does not impose new legal obligations to use modeling. To be sure, because EPA now intends to use this hybrid approach, it has scaled back its proposed plans to develop a more extensive monitoring network. . . Petitioners do not argue, however, that they have suffered an injury by not being required to build a more extensive monitoring network. Petitioners will be free to challenge any final action EPA takes that imposes an obligation Petitioners must meet. The challenged provisions here do not meet that standard."

 

    Regarding the standard, the Appeals Court rules in part, "Nothing in the CAA requires EPA to give the current air quality such a controlling role in setting NAAQS. And as Petitioners themselves note, the CAA gives EPA significant discretion to decide whether to revise NAAQS. Further, in the final rule, EPA cites evidence that current levels of SO2 in the ambient air, even when the air quality meets the current SO2 NAAQS, still cause respiratory effects in some areas. 75 Fed. Reg. at 35530-31. In short, EPA had discretion to revise the NAAQS and Petitioners' argument is unavailing."

 

    Access the complete opinion (click here). [#Air, #CADC]

 

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National Chicken Council v. U.S. EPA

Jan 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1107. On Petitions for Review of a Final Action of the U.S. EPA. The Appeals Court summarizes that the National Chicken Council, National Meat Association, and National Turkey Federation petition for review of EPA's interpretation of a provision in the Energy Independence and Security Act of 2007 (EISA) and, "Because the petitioners fail to show that a favorable ruling would redress their claimed injuries, we dismiss their petition on standing grounds."

 

    Under the EISA, ethanol qualifies as a "renewable fuel" under certain circumstances. Ethanol from a production plant that commenced construction after December 19, 2007 (the date of the EISA's enactment) counts as renewable fuel if it "achieves at least a 20 percent reduction in lifecycle greenhouse gas emissions" in comparison to fossil fuels. 42 U.S.C. § 7545(o)(2)(A)(i). Ethanol from a plant that commenced construction on or before December 19, 2007 is not subject to that requirement; it counts as renewable fuel whether it reduces emissions or not. Id. i.e. the older ethanol plants are "grandfathered in."

 

    The statutory provision at issue in this case is an extension of the EISA's grandfather clause. It states that, "[f]or calendar years 2008 and 2009, any ethanol plant that is fired with natural gas, biomass, or any combination thereof is deemed to be in compliance . . . with the 20 percent reduction requirement." The Appeals Court explains, " In its Notice of Proposed Rulemaking, EPA claimed the provision was ambiguous because it did 'not specify whether [ethanol plants fired with natural gas and/or biomass] are deemed to be in compliance only for the period of 2008 and 2009, or indefinitely.' . . After considering public comments, EPA adopted the latter interpretation in its Final Rule. It read the provision to mean that ethanol plants fired with natural gas and/or biomass that commenced construction in 2008 or 2009 ('qualifying ethanol plants') are deemed compliant with the 20 percent greenhouse gas reduction requirement 'indefinitely.' . . Functionally, that meant qualifying ethanol plants could generate RINs [Renewable Identification Numbers for each gallon of renewable fuel] indefinitely without having to ensure that their ethanol met the emissions-reduction requirement."

 

    The Appeals Court notes that, "The petitioners argue EPA's interpretation of the provision is inconsistent with the statutory text, and they ask us to set it aside. To establish their Article III standing to seek such relief, they must show that they have suffered (or will soon suffer) a 'concrete' injury in fact; that their injury is or will be 'fairly . . . trace[able]' to EPA's interpretation of the provision; and that there is a 'substantial likelihood' their injury would be redressed if we set EPA's interpretation aside."

 

    The Appeals Court concludes, "If we were to vacate EPA's interpretation, the only consequence for qualifying ethanol plants is that they would no longer be able to generate RINs without complying with the EISA's emissions-reduction requirement. The petitioners fail to show a 'substantial probability' that qualifying ethanol plants would reduce their ethanol production as a result of that change. . . We should not be understood to foreclose any challenge to EPA's interpretation of the provision; a different petition, properly supported, could allow us to address the merits of EPA's reading. But the petitioners here have failed to establish their standing, and their petition for review is accordingly dismissed."

 

    Access the complete opinion (click here). [#Energy/Ethanol, #CADC]

 

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State Of New Jersey v. EPA

Jan 20: In the U.S. Court of Appeals, D.C. Circuit, Case 05-1097 consolidated with 05-1104, 05-1116, 05-1118, 05-1158, 05-1159, 05-1160, 05-1162, 05-1163, 05-1164, 05-1167, 05-1174, 05-1175, 05-1176, 05-1183, 05-1189, 05-1263, 05-1267, 05-1270, 05-1271, 05-1275, 05-1277, 06-1211, 06-1220, 06-1231, 06-1287, 06-1291, 06-1293, 06-1294. The Appeals Court summarizes saying, "In our earlier decision in this case, New Jersey v. EPA, 663 F.3d 1279 (D.C. Cir. 2011) [See WIMS 1/3/12], we held that Movants, a group of Native American tribes and tribal associations who intervened on behalf of petitioners in the underlying Clean Air Act litigation, were entitled to fees and costs under section 307(f) of the Act. When the parties were unable to agree on the amount of fees, Movants filed an updated motion seeking $369,027.25, including compensation for 1,181 hours of work and for costs. For the reasons set forth below, we agree with EPA that the fee request is excessive and thus award substantially less than Movants seek.

 

    The Appeals Court notes that to calculate a reasonable fee, "we use the lodestar method, multiplying a reasonable rate by the reasonable number of hours." EPA does not object to Movants' proposed hourly rates, and in order to simplify things recommends a flat rate of $305.125 which is agreed to. However, at issue is the "reasonable number of hours." After careful analysis, the Appeals Court concludes, "In sum, Movants reasonably expended 355.95 hours on the litigation. Multiplying this by $305.125 per hour, we award Movants $108,609.24 in compensation for attorney time. We also award Movants the $3,186.50 in costs they seek and that EPA does not contest."

 

    Access the complete opinion (click here). [#Air, #CADC]

 

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