Aug 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-71506. On Petition for Review of an Order of the U.S. EPA Environmental Appeals Board. In its summary of the opinion the Appeals Court indicates, "42 U.S.C. § 7661c(e) is ambiguous as to whether 'increment' requirements are 'applicable' to a temporary source like Shell Offshore, Inc.'s (Shell) drill vessel Kulluk. Accordingly, we defer to the EPA Environmental Appeals Board's (EAB) reasonable interpretation of § 7661c(e). See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). The EAB reasonably concluded that Shell need not analyze the Kulluk's potential impact on increment before obtaining an oil exploration permit. We also deny the petition for review of the Environmental Protection Agency's (EPA) exemption of a 500-meter radius surrounding the Kulluk from ambient air quality standards, because the decision was 'a permissible application of the EPA's regulations.' See Resisting Envtl. Destruction on Indigenous Lands, REDOIL v. EPA, 716 F.3d 1155, 1158, 1160–61 (9th Cir. 2013)."
To comply with Title V of the Clean Air Act, Shell sought and obtained three related permits in 2011. At Shell's request, the EPA subsequently consolidated the permits into one permitting document (the Permit). The Permit allows Shell to construct, operate, and conduct "pollutant emitting activities" associated with the Kulluk in the Beaufort Sea off Alaska's
North Slope. Before issuing the Permit, the EPA released a Statement of Basis. The Statement of Basis provided that the EPA would not require Shell to analyze the effect its emissions would have on the "increment for the Kulluk's area of operation." EPA concluded that increment analysis was unnecessary, because, under § 7661c(e) and the other relevant statutes, no increment requirements were "applicable" to the Kulluk.
Alaska Wilderness raised the increment and ambient air issues, among others, in its challenge of the Permit before the EAB. Alaska Wilderness contended that the EPA misinterpreted "applicable increment" under § 7661c(e). Alaska Wilderness argued that EPA's "source-based" interpretation erred by applying increment standards to temporary sources only if the PSD would impose increment standards on a similar stationary source. Alaska Wilderness maintained a "geography based" interpretation -- that increment requirements are "applicable" to all sources any time they are established for the geographic area. Alaska Wilderness also argued that the "ambient air" exemption was inconsistent with the Costle Letter, because Shell did not own and could not, by physical barrier, exclude the public from accessing the space. In a 100-page decision (the EAB Decision), the EAB rejected both challenges.
The Appeals Court rules, "As a threshold matter, we reject Alaska Wilderness's argument that the EAB Decision is not entitled to Chevron deference. . . Section 7661c(e) is ambiguous, and the EPA's interpretation is reasonable under the applicable statutes' plain language. Thus, we owe Chevron deference to the EAB Decision not to require a preconstruction increment analysis for the Kulluk. Similarly, as we held in REDOIL, the EPA permissibly granted a 500-meter exemption to the Kulluk from "ambient air" standards. Petition denied."
Access the complete opinion (click here). [#Air, #CA9]
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