Mar 6: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-16961 & 11-11549. Petitions for Review of Final Action by U.S. EPA. In this split decision involving EPA's disapproval of Alabama's "visible emissions rule" (i.e. opacity, or the measure of the light-blocking property of a plant's emission), the majority overturns EPA's disapproval and reinstate a previous regulation that EPA had disapproved.
The majority Appeals Court explains that these consolidated appeals focus on a Clean Air Act visible emissions regulation promulgated by the State of Alabama and submitted to EPA as a revision to Alabama's State Implementation Plan (SIP). In 2008, the EPA approved the revision after concluding the proposed regulation satisfied the Clean Air Act's requirements (2008 approval). The EPA denied a timely request in 2009 that it reconsider its approval, but, when confronted with a second reconsideration request the following month, EPA's new Acting Regional Administrator granted the request. In April of 2009, the EPA moved this Court to grant a limited voluntary remand. The Appeals Court granted the motion, remanding the case "on a limited basis for purposes of reconsidering the final rule under review."
In 2011, following the reconsideration, EPA disapproved the revision (2011 disapproval). Petitions for review of both the 2008 approval and the 2011 disapproval are before the Appeals Court. Alabama Power supports the 2008 approval and asks the Appeals Court to affirm the approval as the only lawful action EPA has taken on the proposed regulation. The Alabama Environmental Council, Sierra Club, Natural Resources Defense Council, and Our Children's Earth Foundation (Citizens) support the 2011 disapproval and ask the Panel to affirm that action. EPA is defending the 2011 disapproval and contends we should not review the 2008 approval.
The majority Appeals Court indicates that, "After a discussion of the statutory background and the factual and procedural history of the two petitions, we first consider whether the EPA's 2011 disapproval was conducted in compliance with the statutory procedures set forth in the Clean Air Act. We conclude the 2011 disapproval was unauthorized by the Clean Air Act because the EPA failed to make the statutorily required error determination. We next reject the EPA's reliance on its inherent authority and this Court's remand order as authorization for the 2011 disapproval. Finally, we address and dismiss challenges to the 2008 approval, and affirm the validity of that action."
The majority states, ". . .we deny Citizens' petition challenging the 2008 approval and affirm the EPA's final rule approving revisions to Alabama's visible emissions rule. 73 Fed. Reg. at 60,957. As a final matter, we decline to follow Citizens' and
the EPA's suggestion that we ignore the 2008 approval. If the EPA wishes to revise or correct the 2008 approval, it may do so by following the statutory procedures provided in the Clean Air Act. See 42 U.S.C. §§ 7410(k)(5), (k)(6)."
The dissenting Justice said, ". . .I respectfully dissent from the Court's determination that '[n]either the text of the final rule disapproving revision published in the Federal Register, nor the record before this Court, reveal that EPA affirmatively made the requisite error determination.' . . .My disagreement is based on two specific differences with the Court's opinion. First, the EPA's notices and decisions in the Federal Register quite clearly describe how the agency believes it was in error in approving the 2008 proposed revision. Second, the process that the EPA followed was more accommodating to the State and to the affected industries than what will inevitably follow from Court's decision, as applied in future cases. I believe we should dismiss the 2008 action for lack of jurisdiction and affirm the EPA's 2011 disapproval."
Access the complete opinion and dissent (click here). [#Air]
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