Wednesday, July 24, 2013

State Of Mississippi v. U.S. EPA

Jul 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. No. 08-1200, consolidated with 08-1202, 08-1203, 08-1204, 08-1206. On Petition for Review of a Final Rule Issued by U.S. EPA. In this high profile case, involving dozens of attorneys, the Appeals Court summarizes briefly saying, ". . .we consider several challenges to the Environmental Protection Agency's most recent revisions to the primary and secondary National Ambient Air Quality Standards for ozone. For the reasons given below, we deny the petitions, except with respect to the secondary ozone standard, which we remand for reconsideration."
    By way of background and summarizing the overall opinion, the Appeals Court says, "Challenging the revised primary and secondary NAAQS, various parties, including several states, the District of Columbia, New York City, and several industry, environmental, and public health groups, filed these petitions for review. We then granted EPA's unopposed motion to hold these cases in abeyance to allow the agency to review the 2008 revisions and determine whether they should be reconsidered. In September 2011, EPA indicated that it was withdrawing its reconsideration proceedings and would instead be completing the reconsideration in conjunction with the next periodic review. Several parties filed petitions for review, challenging EPA's withdrawal of the reconsideration rulemaking. Finding that we lacked jurisdiction over EPA's non-final action, we dismissed the petitions and set a briefing schedule for the present case.
    "We now confront the parties' competing petitions for review. One set of petitioners -- comprising several states, the District of Columbia, New York City, and a number of environmental and public health groups -- thinks the primary and secondary NAAQS are not protective enough, while the other set -- comprising the state of Mississippi and several industry groups -- thinks they are too protective.

    "This opinion considers each of these claims in turn. We reject Mississippi and the industry groups' challenge to the primary and secondary standards in Part II. We explain our denial of the governmental and environmental petitions with respect to the primary standard in Part III and our grant of these petitions with respect to the secondary standard in Part IV.

    "In considering challenges to NAAQS, 'we apply the same highly deferential standard of review that we use under the Administrative Procedure Act.' ATA III, 283 F.3d at 362. Accordingly, 'we will set aside the Agency's determination only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." ' National Environmental Development Ass'n's Clean Air Project v. EPA, 686 F.3d 803, 809–10 (D.C. Cir. 2012) (quoting 42 U.S.C. § 7607(d)(9)(A)). And 'we do not look at the decision as would a scientist, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality.' Id. at 810 (internal quotation marks omitted). That said, "we perform a searching and careful inquiry into the underlying facts." ATA III, 283 F.3d at 362 (internal quotation marks omitted)."

    In its conclusion, the Appeals Court says, "Because EPA failed to determine what level of protection was "requisite to protect the public welfare," EPA's explanation for the secondary standard violates the Act. We therefore remand this portion of the final rule for further explanation or reconsideration by EPA. In the meantime, we leave the standard in place rather than vacating the rule. . . Given these principles, neither EPA nor petitioners advocate vacatur. For the foregoing reasons, we remand the secondary NAAQS to EPA for reconsideration in view of this opinion. In all other respects, the petitions for review are denied.

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

State of Alaska v. Lubchenko (NOAA)

Jul 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35201, consolidated with 12-35203, & 12-35204. Appealed from the United States District Court for the District of Alaska. The Appeals Court explains, the western Distinct Population Segment of the Steller sea lions (wDPS) live in the great northern Pacific Ocean region off Alaska, and they were declared endangered in 1997. More recently, in two of the seven sub-regions they inhabit, they have been experiencing population declines because they have been showing signs of nutritional stress.
    In 2010, the National Marine Fisheries Service (NMFS or the agency) therefore limited commercial fishing in those waters, causing representatives of the fishing industry and the State of Alaska (Plaintiffs) to file this action challenging the limitations.
    The plaintiffs' principal argument is that the NMFS violated the Endangered Species Act (ESA) because it based the fishing restrictions on declines in sub-regions rather than in the entire population of the endangered species. Plaintiffs also contend the agency utilized the wrong standards in measuring the effects of continued fishing and failed to find a sufficient causal link between authorizing fisheries and the population decline.
    The Appeals Court said, "We hold that use of subregions did not violate the ESA and that the agency utilized appropriate standards to find that continuing previous fishing levels in those sub-regions would adversely modify the critical habitat and jeopardize the continued existence of the entire population. We therefore affirm the district court's judgment rejecting plaintiffs' claims."
    Reinforcing its decision, the Appeals Court said, "Applying its regulation, the agency indisputably found that the fisheries were removing prey species of the wDPS. It also found evidence of nutritional stress. While the agency admitted it could not find a direct link between the fisheries and the species's decline, it found that the indirect effect of the fisheries was the removal of wDPS's food. The agency was not required to find that the fisheries were the direct cause of the species's decline. . . The district court's order granting summary judgment to the defendants on the ESA claims and injunction on the NEPA claims are affirmed."
    Colin O'Brien, attorney for Earthjustice said, "This decision reinforces the importance of maintaining strong measures to protect Steller sea lions from the adverse effects of fishing, particularly in the western and central Aleutians. Not only is it important to protect sea lions in their own right, but the species is a key indicator of overall ecosystem health and fishery sustainability." John Hocevar, Oceans Campaign Director, Greenpeace said, "Instead of attacking the science, it's time for Alaska's fishing industry to start thinking about what can be done to prevent fur seals and other fish-eating species from joining sea lions on the endangered list. The court's decision to uphold protections is great news for endangered Steller sea lions. There's no reason why we can't have both productive commercial fisheries and a healthy ecosystem, but we won't be able to do that unless decisions are based on the best available science and a precautionary approach."
    Access the complete opinion (click here). Access a release from Earthjustice with more comments on the decision (click here). [#Wildlife, #CA9]

WildEarth Guardians v. U.S. EPA

Jul 23: In the U.S. Court of Appeals, Tenth Circuit, Case No. 11-9559. On Petition for Review of an Order of U.S. EPA. Petitioner WildEarth Guardians seeks review of an order of the EPA denying in part Petitioner's petition for an objection to a Title V operating permit issued by the Colorado Department of Public Health and Environment (CDPHE) to Intervenor Public Service Company of Colorado, d/b/a Xcel Energy, for its coal-fired power station located in Morgan County, Colorado.
    In its petition for an objection, Petitioner argued, among other things, that the permit needed to include a plan to bring the power station into compliance with the Clean Air Act's Prevention of Significant Deterioration (PSD) requirements. Petitioner contended these PSD requirements, which apply to the construction or "major modification" of a stationary source of air pollution had been triggered when the station underwent major modifications in 1994, 1997, and possibly other years. For support, Petitioner relied in part on a Notice of Violation (NOV) issued to Intervenor by the EPA in 2002.
    However, EPA denied Petitioner's petition for an objection on this ground, holding that the NOV was insufficient to demonstrate noncompliance with the Clean Air Act and that Petitioner's additional evidence also failed to demonstrate a violation. The EPA further held the State agency had adequately responded to Petitioner's comments regarding the PSD requirements before it issued the permit. The EPA thus denied the petition for an objection on this ground as well. Petitioner seeks review of the EPA's denial of the petition on these two grounds.
    Importantly, the Appeals Court said, "We are not persuaded by the Second Circuit's contrary conclusion that an NOV suffices to demonstrate non-compliance, see N.Y. Pub. Interest Research Grp., Inc., 427 F.3d at 181-82, since this conclusion fails to adequately take into account the preliminary nature of an NOV. Instead, like the Sixth and Eleventh Circuits, we find the EPA's interpretation of the demonstration requirement to be persuasive and thus entitled to deference. Nothing about the statute requires the EPA to find that a petitioner has demonstrated noncompliance simply by pointing to the existence of an NOV, and we will defer to the EPA's persuasive conclusion that an NOV alone is insufficient to meet this burden of demonstration."
    The Appeals Court rules further, "We further conclude that the agency did not act arbitrarily or capriciously in concluding that Petitioner failed to demonstrate noncompliance in this case. The agency held that Petitioner had not demonstrated PSD noncompliance because Petitioner's evidence failed to show there had been a major modification as defined by the Colorado SIP, which requires, among other things, consideration of the actual emissions increase resulting from a particular modification, as well as 'a determination of any other increases and decreases in actual emissions at the source that are contemporaneous with the particular change and are otherwise creditable.' (J.A. at 200-01.) As the agency explained, Petitioner's evidence did not address key parts of this test, particularly the question of net emissions increases. . . Viewing the record as a whole, we are not persuaded that the EPA acted arbitrarily or capriciously in holding that Plaintiff had not demonstrated noncompliance. Thus, under our deferential standard of review, we affirm the EPA's denial of the petition on this ground."
    On the second claim, the Appeals Court says, "Finally, Petitioner argues the EPA erred in concluding that CDPHE adequately responded to Petitioner's comments during the public comment period. For support, Petitioner relies mainly on a prior EPA order where the EPA held that a state agency had failed to adequately respond to a petitioner's comments. However, the state agency's response in the previous case contained only two sentences referring vaguely to 'the rules that existed at the time of each modification.' (J.A. at 229.) Here, the state agency gave a much more thorough explanation in its response, and we are not persuaded that the EPA acted arbitrarily or capriciously in concluding this response was adequate. We therefore affirm the EPA's denial of the petition on this ground as well."
    Access the complete opinion (click here). [#Air, #CA10]