Tuesday, October 2, 2012

Supreme Court Denies Montana Sulphur & Chemical CAA Appeal

Oct 1: The U.S. Supreme Court denied to hear an appeal by Petitioner Montana Sulphur and Chemical Company, against U.S. EPA (Docket No. 11-1403), under the Clean Air Act with respect to Montana air quality from 1993 to 2008. The denial upholds the Ninth Circuit ruling that, "Because we conclude that the agency did not act arbitrarily or capriciously with respect to either the SIP or FIP, we deny both petitions for review." The Justices said further, ". . . we conclude the EPA did not act arbitrarily or capriciously or abuse its discretion by making the SIP Call, disapproving portions of the revised SIP, or promulgating the requirements set forth in the FIP. We therefore deny the petition for review in both 02-71657 and 08-72642." [See WIMS 1/23/12].
    Montana Sulphur had challenged EPA's April 2008 final rule promulgating a Federal Implementation Plan (FIP) for the State of Montana's SO2 emissions. The FIP is designed to fill perceived gaps the EPA identified in the State Implementation Plan (SIP). The later appeal focuses on the EPA's authority to promulgate the FIP and the reasonableness of certain specific requirements set forth therein. Additionally, Montana Sulphur had challenged EPA's reliance on various modeling calculations -- into the administrative record for partial disapproval of the SIP.
    The Ninth Circuit said, "The EPA's continued use of the ISC model was not arbitrary or capricious. The model was properly employed at both the time of the state SIP and the proposed FIP. The FIP did not replace the entire SIP, but only the limited portions the EPA had disapproved; because use of a different model could have yielded results that did not comport with the remainder of the SIP, it was not arbitrary or capricious for the EPA to continue with the existing model despite some later technological improvements."
    Access the Supreme Court docket (click here). Access the Supreme Court denial order (click here, p.14). Access the Ninth Circuit opinion  (click here). [#Air, #CA9 #SupCt]
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