Jul 19: In the U.S. Court of Appeals, Tenth Circuit, Case No. 12-9526 & 12-9527. Petition for review of final decision issued by U.S. EPA Re: EPA-R06-OAR-2010-0190. The Appeals Court explains that in these consolidated petitions for review, petitioners challenge a final rule promulgated by U.S. EPA under the Clean Air Act. The petitioners -- Oklahoma, the Oklahoma Industrial Energy Consumers interest group, and the Oklahoma Gas and Electric Company -- argue that the EPA impermissibly rejected Oklahoma's plan to limit the emissions of sulfur dioxide at Oklahoma Gas and Electric (OG&E) Company power plants and replaced it with its own more stringent regulations, which petitioners contend usurped the State's authority and will require sizable expenditures on unnecessary technology. In a split decision, the Majority Appeals Court ruled, "We conclude that the EPA has authority to review the state's plan and that it lawfully exercised that authority in rejecting it and promulgating its own. Exercising our jurisdiction under 42 U.S.C. § 7607(b)(1), we deny the petitions for review."
On one claim by petitioners that EPA violated procedural requirements of the Clean Air Act, the Majority rules that, "The statute itself makes clear that the mere filing of a SIP by Oklahoma does not relieve the EPA of its duty. And the petitioners do not point to any language that requires the EPA to delay its promulgation of a FIP until it rules on a proposed SIP. As the EPA points out, such a rule would essentially nullify any time limits the EPA placed on states. States could forestall the promulgation of a FIP by submitting one inadequate SIP after another."
The Majority explains on one of the contested issues that, petitioners argue that EPA lost authority to promulgate its FIP [Federal Implementation Plan] because more than two years had passed since the EPA made its initial finding that Oklahoma failed to submit a SIP [State Implementation Plan]. The Majority said, "Although the statute undoubtedly requires that the EPA promulgate a FIP within two years, it does not stand to reason that it loses its ability to do so after this two-year period expires. Rather, the appropriate remedy when the EPA violates the statute is an order compelling agency action."
The Majority cites the Supreme Court decision of Brock v. Pierce County, 476 U.S. 253 (1986) and said, "The petitioners do not explain why the principles of Brock would not also control this case. The provision here is 'clearly intended to spur [the EPA] to action, not to limit the scope of [its] authority.' Id. at 265. In the absence of any other indication from Congress, the appropriate remedy is simply a suit to compel agency action, not to eliminate the EPA's authority to file a FIP." [citing Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1190-91 (9th Cir. 2012)].
In a dissenting opinion that also concurred in part, one Justice said, "Although I agree with much of the court's analysis, I dissent with respect to whether certain EPA actions were arbitrary and capricious. See Ct. Op. Pt. IV(A) (analyzing the EPA's calculations of baseline emissions and its determination regarding the technical feasibility of the smaller scrubbers on which it based its cost/benefit analysis). Therefore, I would grant the petition for review."
The dissent concludes, "Although the EPA has at least some authority to review BART [best available retrofit technology] determinations within a state's SIP, it has no authority to condition approval of a SIP based simply on a preference for a particular control measure. . . Oklahoma considered the cost and resulting benefit of such a large investment in scrubbers, and its conclusion was not unreasonable. Assuming the EPA has authority to review Oklahoma's SIP in the manner it did, its rejection of the SIP and promulgation of its own FIP was arbitrary and capricious. Accordingly, I respectfully dissent on this issue."
Sierra Club, a party in the case, issued a release calling the decision "major victory." Whitney Pearson, with Sierra Club said, "Today the court has upheld a common-sense solution to a serious pollution problem. Both in Oklahoma and around the nation, we see smart utilities showing leadership and making the right choices for our pocketbooks and our health. Now we have another signal that OG&E needs to make these smart choices too." David Ocamb, director of the Oklahoma Chapter of the Sierra Club said, "OG&E sends hundreds of millions of dollars out of state each year to import coal and the pollution that comes with it. For a state with abundant, homegrown natural resources, this makes no sense,. The Court upheld the law and acted in Oklahoma's best interests when OG&E wouldn't. It's time for OG&E to do what's right and phase out their coal plants. "
Access the complete opinion and dissent (click here). Access the release from Sierra Club (click here). [#Air, #CA10]
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