National Mining Association v. MSHA

Mar 19: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1241. The National Mining Association (NMA) and the Methane Awareness Resources Group (MARG) (hereinafter, together "industry") petition for review of the Mine Safety and Health Administration's (MSHA's) decision to enforce a final exposure limit standard addressing health risks presented by exposure of miners in metal and nonmetal underground mines to diesel particulate matter (DPM) in diesel exhaust. The decision, announced May 20, 2008, represented a change in MSHA's earlier expressed intent to issue a proposed rule to convert the final DPM exposure standard from a total carbon (TC) to an elemental carbon (EC) measurement. See Diesel Particulate Matter Exposure, Notice of Enforcement of DPM Final Limit and Withdrawal of Intent to Issue Proposed Rule, 73 Fed. Reg. 29,058 (May 20, 2008) (2008 Notice).

 

    On the same date, MSHA issued Program Policy Letter P08-IV-01 (2008 Policy Letter) describing how it intended to enforce the DPM standard. Industry contends MSHA's decision was arbitrary and capricious because it inadequately explained and was unsupported by scientific data, contrary to a 2002 settlement and to MSHA's statements to this court, and without public notice or opportunity to comment. MARG individually challenges the failure of the National Institute of Occupational Safety and Health (NIOSH) to release a study on DPM. 

 

    The Appeals Court denied the industry petitions and dismissed MARG's individual challenges for lack of jurisdiction. In this complex case, the Appeals Court challenges NMA's position on a number of fronts and says: "NMA's suggestion that MSHA's 'misrepresentations,' Pet'r NMA Br. 22, albeit unintentional, cast a cloud over the legitimacy of the DPM standard of 160 TC does not advance its position" ; "Industry is on no firmer ground in contending that the 2008 Notice's withdrawal of MSHA's rulemaking intent violated the terms of the 2002 Settlement arising from challenges to the 2001 Rule" ; ". . .industry repudiated the 2002 Settlement when it petitioned for review of the 2001 Rule in Kennecott. . . MSHA was no longer bound by the 2002 Settlement when it issued the 2008 Notice" ; "NMA is mistaken when it suggests that on the basis of the Noll-Bugarski Study, MSHA effectively 'repromulgated the 160 TC standard'" ; and "the 2008 Notice was not subject to APA notice and comment procedures."

 

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MacClarence v. EPA

Mar 4: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-72756. Bill MacClarence petitioned the court for a review of an order the U.S. EPA Administrator denying his request that the Agency object to the issuance of a Clean

Air Act Title V permit for pollutant-emitting activities at Gathering Center #1 (GC 1), an oil and gas processing facility in Prudhoe Bay. The Alaska Department of Environmental Conservation's (ADEC) granted the permit to British Petroleum Exploration (Alaska), Inc.'s (BP), which owns GC 1. The Appeals Court said that because the Administrator's denial of MacClarence's request "was not arbitrary or capricious, we deny the petition."

 

    By way of background, the Prudhoe Bay Unit (PBU) is located on the North Slope of Alaska and extends over 300 square miles. It consists of a series of oil and gas facilities, including thirty-eight drill sites or "well pads" and six production centers, as well as support facilities for PBU workers. GC 1 is one of the six production facilities at the PBU. BP owns approximately 26.35% to 50.7% of the facilities at the PBU, including GC 1, and operates all of the PBU facilities pursuant to an agreement with the other owners. The PBU facilities are engaged in a continuum of oil and gas refining activities, from drilling to sale. Well pads in the PBU pump "three-phase" crude oil from the tundra beneath the PBU facilities. This oil is transferred to the production centers, including GC 1, where it is separated into processed crude oil, water, and hydrocarbon gases. The processed crude oil is pumped from the production centers to the Trans-Alaska Pipeline for sale, while other facilities at the PBU dispose of or re-inject the by-products of the production process.

 

    MacClarence argues that the permit did not comply with the CAA because ADEC, in the final draft permit for GC 1, had not properly "aggregated" stationary sources of air pollution in the PBU. The Appeals Court indicates, "As the record for this case reveals, the aggregation of pollutant-emitting activities for the purposes of designating a "major source" or "major stationary source" is not a clear-cut task. Under the governing regulations, however, determinations regarding 'major sources' for purposes of issuing Title V permits and 'major stationary sources' for purposes of meeting PSD requirements involve the same analysis; the aggregated sources must belong to the same industrial grouping, be located on continuous or adjacent properties, and be under common control."

 

    The Appeals Court says in its ruling that "we do not decide whether MacClarence's substantive argument -- that the CAA requires all pollutant-emitting sources in the PBU to be aggregated for purposes of Title V and other substantive CAA provisions -- is correct. Rather, we consider only whether the EPA Administrator erred in determining that MacClarence failed to demonstrate, pursuant to 42 U.S.C. § 7661d(b)(2), that the final Title V permit for GC 1 did not comply with the CAA.

 

    The Appeals Court indicates that, in denying MacClarence's request, the Administrator reasoned that MacClarence (1) "failed to provide adequate information to support his claim that the entire PBU should be aggregated," and (2) "failed to demonstrate that the failure to aggregate all facilities within the PBU has led to a deficiency in the content of the permit." Therefore, the Appeals Court rules, "Because we conclude that we may properly uphold the Administrator's denial of MacClarence's petition on the basis of the first ground, we need not reach the second. . . the Administrator's conclusion that MacClarence "failed to provide adequate information to support his claim that the entire PBU should be aggregated" was not arbitrary or capricious. . .

 

    "Therefore, we conclude that the Administrator's determination that MacClarence did not demonstrate that the entire PBU should be aggregated did not constitute an impermissible interpretation of MacClarence's burden under 42 U.S.C. § 7661d(b)(2), to 'demonstrate' that ADEC's final Title V permit for BP's GC 1 did not comply with the CAA, nor was it arbitrary or capricious."

 

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American Road & Transportation Builders v. EPA

Dec 11: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1381. The American Road and Transportation Builders Association (ARTBA) is a trade organization representing the “transportation construction industry” -- companies that build roads, public transit systems, airports and the like. In 2002 ARTBA petitioned the U.S. EPA to amend two regulations implementing § 209(e) of the Clean Air Act. EPA had originally promulgated the rules in 1994, and then readopted them in 1997. After some litigation over the Agency’s failure to act on ARTBA’s petition, EPA formally opened it to public comment in 2007, then rejected it in 2008.

Shortly thereafter, ARTBA sought review in the D.C. Circuit Appeals Court. The Appeals Court dismissed dismiss the suit for lack of jurisdiction, on the grounds that National Mining Association v. U.S. Department of the Interior, 70 F.3d 1345 (D.C. Cir. 1995), "requires us to treat ARTBA’s petition to EPA as a challenge to the regulations it sought revised, and that judicial review of such a challenge is time-barred under Clean Air Act § 307(b)(1). . ." The Appeals Court dismissed the case saying, "We conclude that we are without jurisdiction to hear this petition."

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State of North Carolina v. EPA

Nov 24: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1225. The State of North Carolina petitions for review of the final rule of U.S. EPA removing the northern part of the State of Georgia from EPA’s regulations under its national ambient air quality standard (NAAQS) for ozone measured during a one-hour period [See 73 FR 21,528, 4/22/08]. In 1998 EPA called upon several states to revise their state implementation plans (SIPs) for attaining the NAAQS for ozone by reducing emissions of oxides of nitrogen (NOx), a precursor of ozone [63 FR 57,356, 10/27/98, NOx SIP Call].

Following the remand in Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), cert. denied, 532 U.S. 904 (2001), EPA promulgated a rule that included only the northern portion of Georgia in the NOx SIP Call under the one-hour ozone standard [69 FR 21,604, 4/21/04, Remand Rule]. Georgia’s inclusion was based on EPA’s findings in the NOx SIP Call that emissions from Georgia were significantly contributing to non-attainment of the one-hour ozone NAAQS in Birmingham, Alabama and Memphis, Tennessee.

Upon the petition of an industry coalition, an intervenor, EPA reconsidered its inclusion of Georgia in light of its determinations that recently Birmingham, and earlier Memphis, had attained the one-hour ozone standard. North Carolina now challenges the Withdrawal Rule as contrary to EPA policy requiring states’ adherence to NOx emissions budgets based on the one-hour ozone standard after the repeal of the one-hour standard, as nonconformance with the mandate in Michigan v. EPA, and as disparate treatment of Georgia without lawful justification.

The Appeals Court rules, "We do not reach the merits of these contentions because we conclude that North Carolina lacks standing, specifically that North Carolina failed to show redressability." Further, the Appeals Court says, "The Division’s [Georgia Environmental Protection Division] showing in its sur-reply that Georgia intends to use CSP credits to cover its excess emissions thus resolves the question of redressability, for North Carolina can no longer show that vacating the Withdrawal Rule and re-including northern Georgia in the NOx SIP Call is likely to redress North Carolina’s difficulty in meeting the 1997 NAAQS eight-hour
ozone standard. As counsel for North Carolina stated at oral argument, if reinstating Georgia in the NOx SIP Call would not lower Georgia’s emissions, then North Carolina has a standing problem. Accordingly, we dismiss North Carolina’s petition for lack of standing."

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Stanley v. United States Steel Corporation

Sep 22: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 08-2311 & 082312. The Appeals Court explained that Malcolm Moulton challenges the district court’s approval of a settlement agreement arising from a class action filed by the neighbors of a steel mill owned by United States Steel Corporation. A group of other class members, led by Ron Anderson, join Moulton’s objections, and separately challenge the district court’s management of the opt-out process and its handling of attorney Donnelly Hadden’s attempts to represent them. We affirm, except with respect to the district court’s approval of the attorney’s fee award, which we vacate and remand for further explanation.

In 2003, U.S. Steel purchased a steel mill bordering Ecorse and River Rouge, Michigan. At the time, the mill’s pollution-control equipment was in disrepair. After purchasing the mill, the company spent $65 million to upgrade the old pollution-control equipment and to buy new equipment. About a year after the purchase, several residents of Ecorse and River Rouge filed a class-action lawsuit against the company. The plaintiffs raised several tort and statutory claims, all to the effect that the mill wrongfully discharged harmful “metal-like dust and flakes” that settled on their real and personal property.

The case basically involves class action procedures and the conduct of attorney Hadden. In part, the Appeals Court rules, "At no point has Hadden offered evidence on the record that the 34 “missing” opt-out forms were mailed to Class Counsel. Lacking any evidence that these class members opted out, Hadden cannot demonstrate that an error occurred, much less that the district court abused its discretion by not correcting it. . . We also reject Hadden’s claim that the district court abused its discretion by not accepting opt-out forms that Hadden signed, purportedly at his clients’ request. We have serious doubts at the outset whether these clients requested that Hadden sign their form, or if they merely failed to respond to Hadden’s letter -- triggering Hadden’s 'automatic' opt out on his terms. Even setting this skepticism aside, we find none of his arguments persuasive. . .

"The Michigan Constitution’s guarantee of 'the right to prosecute . . . [a] suit . . . by an attorney,' Mich. Const. Art. I, § 13, does not save his argument. The Hadden clients who opted out of the suit had an attorney: Hadden. And those who remained in the class were adequately represented by court-approved Class Counsel."

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State of Connecticut v. American Electric Power Co. Inc.

Sep 21: In the U.S. Court of Appeals, Second Circuit, Case Nos. 05-5104 & 05-5119. In this major 139-page decision regarding citizen and government enforcement of greenhouse gas emissions the Appeals Court summarized saying, the case is appealed from a judgment of the United States District Court for the Southern District of New York that dismissed Plaintiffs-Appellants’ Federal common law of nuisance claims as non-justiciable under the "political question doctrine."

The Appeals Court ruled that, "We hold that: (1) Plaintiffs-Appellants’ claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit. Accordingly, we vacate the judgment of the district court and remand for further proceedings.

The case was finally decided by a two judge panel that noted, "The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter."

By way of background, in 2004, two groups of Plaintiffs, one consisting of eight States and New York City, and the other consisting of three land trusts (collectively Plaintiffs), separately sued the same six electric power corporations that own and operate fossil-fuel-fired power plants in twenty states (collectively Defendants), seeking abatement of Defendants’ ongoing contributions to the public nuisance of global warming. Plaintiffs claim that global warming, to which Defendants contribute as the “five largest emitters of carbon dioxide in the United States and . . . among the largest in the world,” Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. They explain that carbon dioxide acts as a greenhouse gas that traps heat in the earth’s atmosphere, and that as a result of this trapped heat, the earth’s temperature has risen over the years and will continue to rise in the future. Pointing to a "clear scientific consensus" that global warming has already begun to alter the natural world, Plaintiffs predict that it “will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”

Plaintiffs brought these actions under the Federal common law of nuisance or, in the alternative, state nuisance law, to force Defendants to "cap and then reduce their carbon dioxide emissions." Defendants moved to dismiss on a number of grounds. The district court held that Plaintiffs’ claims presented a non-justiciable political question and dismissed the complaints.

On appeal, Plaintiffs argue that the political question doctrine does not bar adjudication of their claims; that they have standing to assert their claims; that they have properly stated claims under the federal common law of nuisance; and that their claims are not displaced by federal statutes. Defendants respond that the district court’s judgment should be upheld, either because the complaints present non-justiciable political questions or on a number of alternate grounds: lack of standing; failure to state a claim; and displacement of Federal common law. In addition, Defendant Tennessee Valley Authority (TVA) asserts that the complaints should be dismissed against it on the basis of the discretionary function exception.

The Appeals Court ruled, "We hold that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; that their claims are not displaced; and that TVA’s alternate grounds for dismissal are without merit. We therefore vacate the judgment of the district court and remand for further proceedings."

In its conclusion, the Appeals Court said additionally, "With regard to air pollution, particularly greenhouse gases, this case occupies a niche similar to the one Milwaukee I occupied with respect to water pollution. With that in mind, the concluding words of Milwaukee I have an eerie resonance almost forty years later. To paraphrase: 'It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance' by greenhouse gases. Milwaukee I, 406 U.S. at 106."

The Natural Resources Defense Council (NRDC) issued a release calling the decision "a landmark ruling," that "five large electric power companies can be sued in Federal court because their carbon dioxide emissions contribute to rising temperatures and a host of damaging impacts in other states, including heat waves, smog episodes, droughts and forest fires." NRDC said that the Second Circuit "held that Federal courts are empowered to curb damaging carbon pollution unless and until the legislative and executive branches actually regulate that pollution, either under the existing Clean Air Act or the comprehensive new energy and climate legislation bending in Congress."

Included in the NRDC release was a statement from Matt Pawa, lead attorney for the land trusts Open Space Institute and the Audubon Society of New Hampshire saying, “The court’s decision makes clear that the harms of global warming are real and need to be addressed today. For hundreds of years, courts have been there to protect citizens from harm. Today’s decision opens the way for citizens to protect themselves from the polluters responsible for global warming. Power companies that release millions of tons of dangerous carbon pollution are not above the law.”

Also, David Doniger, senior attorney and policy director for NRDC’s Climate Center said, “The best way to fight global warming is for the Senate to pass comprehensive clean energy and climate legislation. However, the court’s decision guarantees that if the Congress fails to do its job, or blocks EPA from doing its job, the biggest power companies will still be held accountable in the federal courts.”

Access the complete opinion (click here). Access a release from NRDC (click here).

State of Michigan v. EPA

Sep 9: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-2582. As explained by the Appeals Court, the cultural and religious traditions of the Forest County Potawatomi Community (the Community) often require the use of pure natural resources derived from a clean environment. Many years ago, the Community became alarmed by increasing pollution levels in its lakes, wetlands, and forests. To remedy this problem, it submitted a request to U.S. EPA) to redesignate certain tribal lands from Class II to Class I status under the Prevention of Significant Deterioration (PSD) program of the Clean Air Act (the Act). This would have the effect of imposing stricter air quality controls on emitting sources in and around the Community’s redesignated lands.

After nearly fifteen years of administrative proceedings and dispute resolution efforts between the Community and neighboring Wisconsin (which were successful) and Michigan (which were not), the EPA promulgated a final ruling redesignating the Community’s lands to Class I status [See WIMS 4/29/08]. It also issued two companion announcements concluding dispute resolution proceedings with Wisconsin and Michigan. Michigan seeks review of these three final administrative rulings. It asserts that the EPA pursued the redesignation in an improper manner and, as a result, needlessly complicated Michigan’s air quality control programs.

The Appeals Court said, "Because Michigan lacks standing to pursue these claims, we dismiss its petition for review." The Appeals Court stated further in its conclusion, "The Community has waited over fifteen years for finality on the redesignation of its lands. Michigan’s challenge to the EPA’s redesignation actions raises some important issues about the PSD program’s regulatory structure, but Michigan has failed to allege a cognizable injury in fact and thus lacks standing to pursue this case. As a result, the Community need not wait any longer. We dismiss the petition for review."

Access the complete opinion (click here). Access a 6/30/08 release from MDEQ (click here). Access the Dispute Resolution FR announcement (click here). Access the Final Rule FR announcement (click here). Access EPA's docket for this action with complete background information (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).]

United States v. Northshore Mining Co.

Aug 17: In the U.S. Court of Appeals, Eighth Circuit, Case No. 08-1423, 08-1529, & 08-1533. According to a court written summary, Northshore received all of the relief it sought in its motion to dissolve the injunction in the case, and it lacked standing to appeal the order; nor did Northshore have standing to appeal the district court's collateral ruling denying its Rule 60(b) motion as the court's ruling on that motion was immaterial to the ultimate ruling vacating the injunction; the United States' appeal must also be dismissed because it was not aggrieved by the district court's order since its interest did not extend to air-emissions programs and the order involved only affects air emissions.

With respect to the remaining appeal by Minnesota and the Minnesota Pollution Control Agency, those parties have failed to show that the district court abused its discretion by vacating sua sponte [acting spontaneously without prompting from another party] the injunction's air-emissions programs as the State and the agency have sufficient regulatory tools to monitor and control the plant's fibre emissions in ways which parallel the injunction. In its conclusion, the Appeals Court said, ". . .we dismiss Northshore’s appeal, dismiss the United States’ cross-appeal, and affirm the district court’s conclusion that the air-emissions provisions of the injunction are moot."

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Mirant Potomac River, LLC v. EPA

Aug 12: In the U.S. Court of Appeals, Fourth Circuit, Case No. 08-1277. The Appeals Court explained that Mirant Potomac River, LLC (Mirant) appealed the U.S. EPA approval of Virginia’s Clean Air Interstate Rule State Implementation Plan (CAIR SIP). The Court said Mirant’s alleged injury, however, "flows from Virginia’s Nonattainment Provisions, which are separate emissions standards adopted by Virginia’s Air Pollution Control Board (Virginia Board) under the authority of the Virginia legislature. Because Mirant’s injury cannot fairly be traced to EPA’s approval of Virginia’s CAIR SIP, we dismiss for lack of standing."

The Appeals Court also noted in a footnote, "Since we find no subject matter jurisdiction, we need not evaluate a recent decision by Virginia’s Court of Appeals that invalidated a portion of the Nonattainment Provisions. . . Mirant Potomac River, LLC v. Commonwealth of Virginia, State Air Pollution Control Board, 2009 WL 1748524 (Va. Ct. App. June 23, 2009) (unpublished)."

In summary the Appeals Court ruled, ". . .there is no connection -- much less one that is 'fairly traceable' -- between Mirant’s claimed injury and EPA’s approval of Virginia’s CAIR SIP because Virginia’s Nonattainment Provisions and its CAIR SIP are separate regulatory schemes. Virginia’s Nonattainment Provisions are state regulations. They are not part of, and do not directly interfere with, the CAIR SIP approved by EPA. Consequently, Mirant has failed to demonstrate a causal link between its alleged injury and EPA’s approval of Virginia’s CAIR SIP. Mirant has failed to carry its burden of establishing standing."

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Natural Resources Defense Council v. U.S. EPA

Jul 10: In the U.S. Court of Appeals, D.C. Circuit, Case No. 06-1045, consolidated with 06-1046, 06-1047, 06-1214, 07-1311. As explained by the Appeals Court, in 1997, the EPA revised the National Ambient Air Quality Standard (NAAQS) for ozone from a 1-hour standard to an 8-hour standard. These consolidated petitions for review challenge aspects of the Final Rule To Implement the 8-Hour Ozone NAAQS -- Phase 2, 70 Fed. Reg. 71,612 (2005) (Phase 2 Rule), and Phase 2 of the Final Rule To Implement the 8-Hour Ozone NAAQS -- Notice of Reconsideration, 72 Fed. Reg. 31,727 (2007) (Reconsideration Notice).

The Appeals Court ruled, "We hold the Phase 2 Rule is inconsistent with the Clean Air Act (CAA or Act) in allowing participation in a regional cap-and-trade program to satisfy an area-specific statutory mandate. We further hold the EPA arbitrarily
eliminated one safeguard and violated the anti-backsliding provision of the Act insofar as it eliminated another from its regulations governing review of new sources of pollution. We therefore grant the petitions with respect to those aspects of the Phase 2 Rule.

"In view of our decision in North Carolina v. EPA, 531 F.3d 896 (2008) [See WIMS 7/14/08, & 1/5/09], in which we granted a petition for review of the Clean Air Interstate Rule (CAIR), we defer consideration of the Phase 2 Rule and Reconsideration Notice insofar as they relate to the CAIR program. We deny the petitions in all other respects."

Earthjustice filed the suit, representing the Natural Resources Defense Council (NRDC). The states of New Jersey, New York and Connecticut also joined in part of the challenge. In a release, NRDC said, "The U.S. Court of Appeals for the D.C. Circuit found the Environmental Protection Agency rules illegally let plants buy rights to pollute -- sometimes from plants hundreds of miles away -- instead of installing modern emission controls. The court also invalidated parts of the rule that weakened pollution limits for major new or expanded factories and power plants in cities with unhealthful air."

David Baron, Earthjustice attorney said, “Rejecting these waivers is a breath of fresh air to millions of Americans living in cities that violate clean air standards. The EPA rule let power plants pump uncontrolled air pollution into regions that already had dangerous smog levels. We said that violated the law, and the court agreed.”

NRDC indicated that the case grew out of an air pollution trading program aimed at reducing pollution that travels between states. The EPA rule overturned created loopholes by allowing power plants in already polluted communities to avoid installing controls by buying pollution credits from another plant that could be hundreds of miles away. Earthjustice argued that the waiver violated the Clean Air Act. Twenty-two states are members of this interstate program, and most of them contain areas that are already very polluted, officially known as “non-attainment areas.” These include cities like Chicago, Pittsburgh, Baltimore, New York and Philadelphia.

Access the complete opinion (click here). Access a release from NRDC (click here).

Catawba County NC v. U.S. EPA

Jul 8: In the U.S. Court of Appeals, D.C. Circuit, Case No. 05-1064. The case is consolidate with 29 other cases. In these consolidated petitions, several states, counties, and industrial entities challenge the U.S. EPA's promulgation of area designations for the annual national ambient air quality standard (NAAQS) applicable to fine particulate matter (PM2.5), a category of air pollutants consisting of miniscule airborne particles known to present adverse health risks. The parties argue that EPA’s methodology for designating areas as “nonattainment” for the fine particulate matter standard violates section 107(d) of the Clean Air Act, which governs the designations, and that the methodology and the individual designations it produced are arbitrary and capricious.

According to the Appeals Court the petitioners what it "to vacate the nonattainment designations and to send EPA back to the drawing board." The Appeals Court ruled, "With one minor exception, we deny the petitions for review. Faced with the complex task of identifying those geographic areas that contribute to fine particulate matter pollution, EPA both complied with the statute and, for all but one of the 225 counties or partial counties it designated as nonattainment, satisfied -- indeed, quite often surpassed -- its basic obligation of reasoned decisionmaking. . . we deny the petitions for review in all respects save one: the designation of Rockland County [New York] is remanded to EPA."

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Scott Howard v. Hilda Solis

Jul 6: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-5799. In this case Petitioner Scott Howard, a miner, sought a writ of mandamus from the court directing the Secretary of Labor to promulgate lower limits for the amount of dust and silica in the air in mines. The Federal Mine Safety and Health Act of 1977 authorizes the Secretary to promulgate mandatory air quality standards for U.S. mines. The Secretary has not promulgated new standards for dust and silica since 1980. Howard argued that the present standards are too high and that the Secretary had, therefore, violated her duty under the Mine Act to promulgate “improved” standards to protect the health of miners.

The Appeals Court said, "Because Howard must first exhaust his administrative remedies as required by the Mine Act, however, his petition must be dismissed." In its opinion, the Appeals Court said further, "If Howard petitions for a lower PEL [permissible exposure limits], the Secretary assures us, the agency would make a considered determination, capable of judicial review, as to whether to promulgate a lower PEL. This would have the benefit of creating a record that would facilitate judicial review. '[E]ven where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration, especially in a complex or technical factual context.'"

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Arizona Public Service Company v. EPA

Apr 14: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-9546 & 07-9547. Arizona Public Service Company (APS), operator and majority owner of the Four Corners Power Plant (Plant), and Sierra Club, Diné CARE, Diné for the C-Aquifer, and San Juan Citizens Alliance (collectively Environmentalists) challenged a regulation promulgated by the U.S. EPA (EPA). The regulation at issue is known as a source-specific, Federal implementation plan (Federal plan) and was enacted pursuant to sections 301(a) and (d)(4) of the Clean Air Act, 42 U.S.C. §§ 7601(a) and (d)(4). The Federal plan limits particular air emissions from the Plant.

The Appeals Court indicated that because all parties agree that the Federal plan provision pertaining to fugitive dust should be remanded, it did not address those emissions limit in its discussion of the facts. The Appeals Court granted EPA’s motion for voluntary remand and granted in part and denied in part the petitions for review. In particular, the Appeals Court denied APS’s petition for review; denied the Environmentalists’ petition for review, and affirmed the remainder of the Federal implementation plan.

On the APS challenge, the Appeals Court said, "We hold the EPA has established 'an adequate rationale' for the affirmative defense. . . We conclude the EPA has not acted arbitrarily or capriciously. The EPA identified a regulatory need and enacted a source-specific Federal plan to fill this gap. The EPA has neither relied on factors which Congress did not intend it to consider nor failed to consider any important aspect of the problem. . . The EPA addressed all substantive aspects of APS’s comments: startup, shutdown, malfunction, and saturated stack conditions. The EPA based its decision on the evidence before it, i.e., current air quality data for the area surrounding the Plant, and incorporated its negotiations with APS, the Navajo Nation, and the State of New Mexico into its plan. We can ascribe APS’s disagreement with the EPA’s final action to a difference in view."

Regarding the Environmentalists' challenges, the Appeals Court said, "In sum, the key criterion in determining the adequacy of any plan is attainment and maintenance of the national air standards. . . The Federal plan at issue codifies in part the New Mexico plan -- previously studied, analyzed, approved, and in place -- and relies on current data demonstrating that the air quality in the area of the Plant is better than the national air standards for criteria pollutants. Therefore, the EPA had no need to conduct additional modeling and analysis to demonstrate the adequacy of the plan, a fact the EPA already knew. The Federal plan, by necessity, is adequate because the plan is but a stricter version of the satisfactory emissions limits already applied by the Plant and implemented throughout the State of New Mexico. Because the EPA’s interpretation of its own regulation is not 'plainly erroneous or inconsistent with the regulation,' we must defer to the EPA."

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Natural Resources Defense Council v. U.S. EPA

Mar 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1151. State authorities submit air pollution emissions data to U.S. EPA. EPA monitors the data in order to evaluate regional compliance with national air pollution standards. In 2007, EPA promulgated a regulation governing the exclusion of emissions data during “exceptional events” such as natural disasters. The Natural Resources Defense Council (NRDC) brought petitions for review, seeking to set aside the rule’s definition of “natural events” and to vacate several statements in the preamble to the rule concerning types of events that may qualify as “exceptional.”

In a split decision the majority rules that, "Even if the statements in the preamble were reviewable under the Clean Air Act, they are not ripe for review at this time. The statements about exceptional events are 'hypothetical and non-specific.' Kennecott, 88 F.3d at 1223. NRDC has not demonstrated that any of the statements has immediate legal or practical consequences. How EPA will use or rely on or interpret what it said in the preamble is uncertain. . . We can see no significant hardship to the parties from waiting for a real case to emerge. As EPA points out in its brief, the Clean Air Act 'provides for judicial review of any EPA decision to determine the attainment status of an area, or to designate or redesignate an area, based on EPA’s decision to exclude exceptional events data or other information.'"

In a separate opinion concurring in part, and dissenting in part, the Justice said, "When an agency receives comments that object to its application of a statutory term as being contrary to the plain text of the statute, what is the agency to understand is the target of the objection? The specific application or the agency’s underlying interpretation of the term or both? The court
responds only the application. But the answer depends on how the comments are phrased. If, as here, the comments address a specific application by pointing out that it reflects an interpretation of a statutory term that contradicts the plain text of the statute, how can the agency respond to the comments without considering whether its definition is consistent with the statute, much less how would it not be on notice that the comments extended to the agency’s interpretation of the statutory term?"

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Hempstead County Hunting Club v. Southwestern Electric Power

Mar 12: In the U.S. Court of Appeals, Third Circuit, Case No. 08-2613. Hempstead County Hunting Club (HCHC) filed a citizen's suit against Southwestern Electric Power Company (SWEPCO) pursuant to the Clean Air Act (CAA), seeking a preliminary and permanent injunction to prevent SWEPCO from commencing construction, constructing, or continuing construction of its 600-megawatt pulverized coal-fired power plant in Hempstead County, Arkansas, without first obtaining a Prevention of Significant Deterioration (PSD) permit as required by the CAA.

On the same day that it filed its complaint, HCHC filed a motion for temporary restraining order and preliminary injunction. The
district court denied the motion, and HCHC filed an interlocutory appeal, arguing that the district court abused its discretion in
denying the preliminary injunction because "SWEPCO has proposed to construct and is constructing its Hempstead Plant, although it does not have a CAA permit."

SWEPCO filed a motion to dismiss the appeal, arguing that the appeal is moot because it has now received the CAA permit and has lawfully begun construction at the site, rendering HCHC's appeal of the denial of its motion for a preliminary injunction to halt preconstruction activities moot. The Appeals Court agreed and dismissed the appeal as moot.

The Appeals Court said, "HCHC's allegation that SWEPCO is acting illegally rests on its argument that SWEPCO is engaging in construction activities without a permit. Therefore, the present case is comparable to Mississippi River Revival in which, after the MPCA issued storm permits, the district court dismissed the environmental organizations' complaints as moot, as the complaints were based on the allegation that the Cities were discharging storm waters without required permits."

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Latino Issues Forum v. EPA

Mar 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-71907. The Latino Issues Forum and Sierra Club challenged U.S. EPA's approval of a revision to the state implementation plan (SIP) for San Joaquin Valley, California. The revision, known as Rule 4550, is part of the Conservation Management Practices (CMP) Program, an air-pollutant reduction program, established by the San Joaquin Valley Unified Air Pollution Control District (District). Rule 4550 aims to reduce emissions from agricultural sources of a certain kind of particulate matter known as PM-10. The Appeals Court ruled, "We hold that Rule 4550 comports with the requirements of 42 U.S.C. §§ 7509 and 7513a(b)(1)(B) and, therefore, deny the petition."

The Petitioners challenged two aspects of EPA’s approval of Rule 4550 as being arbitrary, capricious, or not in accordance with law. First, Petitioners claim that Rule 4550 does not incorporate “all feasible measures,” as required by 42 U.S.C. § 7509(d)(2). Second, Petitioners assert that Rule 4550’s menu of options for controlling agricultural PM-10 emissions does not constitute BACM, as required by 42 U.S.C. § 7513a(b)(1)(B).

On the first question, the Appeals Court said, "Because § 7509(d)(2) is ambiguous and the EPA’s statutory interpretation is reasonable, we hold that the EPA acted lawfully by not requiring implementation of 'all feasible measures' into Rule 4550." On the second issue, the Appeals Court said, "EPA demonstrated that the controls included in the rule’s menu meet the stringency requirements of BACM. Although the context is different, our inquiry into whether the EPA properly followed the procedures set forth by the Act remains the same. And, just as we held in Vigil, there is no evidence here that the process which led to the creation and adoption of Rule 4550 was improper. . . Because the EPA made no clear error of judgment in ruling that Rule 4550 complies with BACM, because the EPA followed its regulatory process, and because that process was consistent with one we approved in Vigil, we hold that the EPA’s approval of Rule 4550 did not violate 42 U.S.C. § 7513a(b)(1)(B)."

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Sierra Club v. EPA

Feb 25: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-4485. According to the summary provided by the Sixth Circuit in its opinion, the Clean Air Act requires the U.S. EPA to object to an air-pollution permit if any person “demonstrates” to the EPA “that the permit is not in compliance” with the Act’s requirements. 42 U.S.C. § 7661d(b)(2). In August 2006, the Sierra Club petitioned the EPA Administrator to object to a permit issued by the Kentucky Division of Air Quality to the East Kentucky Power Cooperative, claiming it had “demonstrate[d]” non-compliance because the EPA previously had issued a notice of violation to the same company (about the same plant) in January 2003 and had filed a federal-court complaint against the same company (about the same plant) in January 2004.

The Appeals Court said, "The EPA declined to object. Because it reasonably interpreted § 7661d(b)(2) to mean that the agency may alter its position about a power plant’s compliance with the Act based on intervening events and because the Sierra Club does not challenge the impact of these intervening events on the power plant’s compliance with the Act, we deny the petition for review."

This case arises from the power company’s request for a renewal of its Title V permit for one of the coal-powered steam generators, known (not so descriptively) as Unit 2, at the Spurlock Station power plant in Maysville, Kentucky. The Kentucky agency granted the permit in 1999. In 2003, apparently after discovering these changes to the plant, the EPA issued a notice of violation, informing the company that its Unit 2 permit failed to address the PSD requirements stemming from these modifications.

In August 2006, the Sierra Club petitioned the EPA to object to the permit, arguing (as it did in its comments to the state agency) that the proposed permit was deficient because it failed to address the PSD requirements. In support, the Sierra Club relied solely on the fact that the EPA previously had issued a notice of violation and had filed a civil-enforcement action based on the same allegations.

In August 2007, while the parties waited for the district court to approve the consent decree, the EPA reached a decision on the Sierra Club’s petition. Although it granted the petition in part (on an unrelated issue), it declined to object to the power company’s failure to address the PSD requirements. Acknowledging its prior notice of violation and enforcement action, the EPA explained that they were “initial steps” in the enforcement process and did not reflect the agency’s final position as to whether the Title V permit for Unit 2 needed to include a PSD compliance schedule.

The Appeals Court said, "The question is this: Does the Act require the EPA to object to a permit request when the agency previously has filed a notice of violation and enforcement action regarding the same allegations about the same plant? The answer turns on the meaning of a statute that the EPA administers and thus turns on an application of the familiar Chevron framework. Unless the statute’s terms “directly address[] the precise question at issue,” Chevron says that we must defer to the EPA’s “reasonable” interpretation of the provision. Chevron, USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984). . .

"Under these circumstances, the EPA acted within its authority in addressing the Sierra Club’s objection. Consistent with Chevron, the EPA reasonably construed § 7661d(b)(2) to mean that a prior notice of violation and enforcement action did not by themselves require it to object to a permit request. And consistent with the APA, the EPA did not arbitrarily or capriciously deny the Sierra Club’s request, after accounting not only for the agency’s prior actions but also for developments in that litigation."

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American Farm Bureau Federation v. EPA

Feb 24: In the U.S. Court of Appeals, D.C. Circuit, Case No. 061410, consolidated with 06-1411, 06-1415, 06-1416, 06-1417.In this high profile case involving many states, environmental organizations and industry groups the Appeals Court considered several challenges to U.S. EPA's most recent revision of the National Ambient Air Quality Standards for particulate matter [See WIMS 9/21/06]. The Appeals Court said, "Because the agency promulgated standards for fine particulate matter that were, in several respects, contrary to law and unsupported by adequately reasoned decisionmaking, we grant the petitions for review in part and remand those standards to the agency for further proceedings. We deny the petitions for review of the agency’s standards for coarse particulate matter because those standards are not arbitrary, capricious, or otherwise contrary to law."

The court explained the three sets of petitioners, joined by several intervenors and amici, filed petitions for review of the EPA’s final rule. The American Lung Association, Environmental Defense, and the National Parks Conservation Association (environmental petitioners) challenge the primary annual and secondary standards for fine PM as well as the elimination of the annual standard for coarse PM. Several states and state agencies (state petitioners) challenge the primary annual fine PM standard. The American Farm Bureau Federation, the National Pork Producers Council, the National Cattlemen’s Beef Association, and the Agricultural Retailers Association (industry petitioners) challenge the EPA’s retention of the PM10 indicator for coarse PM and the 150 µg/m3 level for the daily coarse PM standard.

The Appeals Court explains the various Parts of its decisions as follows. "In Part II we grant in part the petitions for review of the primary annual fine PM standard, brought by the states and environmental groups, and remand the standard to the EPA for reconsideration. The EPA failed to explain adequately why an annual level of 15 µg/m3 is 'requisite to protect the public health,' including the health of vulnerable subpopulations, while providing 'an adequate margin of safety.'

"In Part III we grant in full the petition for review of the secondary NAAQS for fine PM brought by the environmental groups and remand them to the EPA for reconsideration. The EPA unreasonably concluded that the NAAQS are adequate to protect the public welfare from adverse effects on visibility.

"In Part IV we deny the petitions for review of the primary daily standards for coarse PM brought by the industry groups. We do not reach the question raised by the amicus National Association of Home Builders whether the EPA lawfully could have distinguished between urban and nonurban coarse PM in selecting the coarse PM indicator.

"Finally, in Part V, we deny the petition for review of the EPA’s revocation of the primary annual standard for coarse PM brought by the environmental groups."

New York Attorney General Andrew Cuomo who led a coalition of 18 states and cities in the case announced that they had "won a major victory in a challenge of lax Bush Environmental Protection Agency (EPA) standards for fine soot pollution that had wholly failed to protect public health, particularly for children, elderly people and other vulnerable populations." Attorney General Cuomo said, “In an epic victory for New York State and the entire country, my office has ensured that politics don’t come in the way of public health and environmental protection. The EPA is charged with protecting the environment, yet the Bush administration had misconstrued the purpose of this agency, using it as a tool to facilitate pollution instead of combating it. As a result of this victory, millions of New York residents will have a chance to breathe easier. My office will work with the new Obama administration to make sure that new more protective soot standards are issued quickly.”

The states, cities and other state agencies joining Cuomo in the challenge included: California, Connecticut, Delaware, Illinois, Maine, New Hampshire, New Jersey, New Mexico, Oregon, the Pennsylvania Department of Environmental Protection, Rhode Island, Vermont, the District of Columbia and the South Coast Air Quality Management District. The States of Arizona, Maryland and Massachusetts also joined as friends of the court.

The American Lung Association (ALA) issued a release saying they challenged the EPA’s standards, "because the science clearly showed that the standards set in 2006 failed to adequately protect public health." Stephen Nolan, American Lung Association National Board Chair said, “Strong, protective national air quality standards are fundamental for healthy air. Today’s triumph will save countless lives and is an important step forward in the American Lung Association’s continued work to fight for air."

Earthjustice attorney Paul Cort who represented ALA, Environmental Defense Fund, and National Parks Conservation Association in the case said, "This is a huge victory for anyone who breathes. Particulate matter is one of the most deadly forms of pollution out there today. The Bush EPA refused to follow the advice of leading health advocates as well as its own scientists who argued that a stronger standard was needed to protect public health. Today's ruling corrects that injustice."

Bob Stallman, President, American Farm Bureau Federation issued a statement saying, “Because of Tuesday’s ruling by the U.S. Court of Appeals for the District of Columbia Circuit that upheld the Environmental Protection Agency’s regulatory standards related to rural dust, farmers and ranchers could face additional and unwarranted regulations as states attempt to comply with federal standards. Farm Bureau challenged the EPA’s Clean Air Act National Ambient Air Quality Standards rule for coarse particulate matter, but the court chose to disregard the overall lack of scientific support for the rule.

“Farm Bureau is disappointed in the outcome and concerned about costly measures to regulate rural dust that could be imposed on our farmers and ranchers. EPA’s own studies had failed to demonstrate adverse health effects associated with rural dust, which comes mostly from naturally occurring organic materials such as plants, sand and soil. Most disappointing is that the court suggested industry had the burden of proving that dust from agricultural sources was safe, rather than EPA proving within a margin of safety that the emissions caused harm. These dust standards are revised every five years, so it is difficult to predict the final impact of the ruling. However, during a time when farmers and ranchers are already struggling with the economics of producing food and fiber, the possibility of this leading to more regulatory costs does not bode well, especially since science does not show that any health benefits would result.”

Access the complete 50-page opinion (click here). Access a release from Attorney General Cuomo (click here). Access a release from ALA (click here). Access a release from Earthjustice (click here). Access the statement from the Farm Bureau (click here).

South Coast Air Quality Management v. EPA

Feb 6: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1030. The South Coast Air Quality Management District, the Santa Barbara County Air Pollution Control District, and Friends of the Earth challenged the final rule promulgated by U.S. EPA that extended the deadline for the EPA to establish more stringent emissions standards for large marine diesel engines. The Appeals Court ruled that "EPA reasonably implemented the Clean Air Act (CAA) in extending the deadline, wherefore we deny the petitions for review."

In its conclusion the Appeals Court said, "In view of the issues remaining for the EPA to resolve before it sets Tier 2 standards, we hold the Extension Rule deferring the deadline for promulgating a regulation is neither arbitrary nor unlawful. At the oral argument the petitioners allowed that they would not be objecting to the new deadline if they could be sure the EPA would adhere to it. The EPA gives that assurance in the Extension Rule, id. at 68,520/2, and the record, which demonstrates the EPA has made progress toward promulgating Tier 2 standards, see id. at 69,522, suggests no reason to doubt it. We rely upon that assurance in holding that the Rule is lawful. In sum, because the Rule commits the EPA to proceed with the two-tiered approach approved in Bluewater Network, and to resolve outstanding issues and set standards no later than December 17, 2009, the petitions for review are denied."

Access the complete opinion (click here). Access EPA's diesel, boats and ships website for more information (click here).

North Carolina v. EPA

Dec 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. 05-1244, consolidated with 31 other cases and involving scores of attorneys. Just in time to meet the January 1, 2009, first major compliance deadline under U.S. EPA's Clean Air Interstate Rule (CAIR), the Appeals Court responded in part to a request by EPA and other parties and remanded the case, "without vacatur," for EPA to conduct further proceedings consistent with the court's prior opinion. Previously, on July 11, 2008 [See WIMS 7/14/08], the Appeals Court had ruled, ". . . we find more than several fatal flaws in the rule and . . . we vacate the rule in its entirety and remand to EPA to promulgate a rule that is consistent with this opinion." EPA, environmental groups, states and others had asked the court to reconsider its July 11 opinion. The program was designed to reduce millions of tons of smog- and particulate-forming pollution from coal-fired power plants in 28 eastern states.

The Appeals Court said in the latest reconsideration, "On July 11, 2008, we issued an opinion, in which we found 'more than several fatal flaws in the rule.' North Carolina v. EPA, 531 F.3d 896, 901 (D.C. Cir. 2008) (per curiam). In light of the fact that the Environmental Protection Agency (EPA) adopted CAIR as an integral action, we vacated the rule in its entirety and remanded to EPA to promulgate a rule consistent with our opinion. Id. at 929-30. On September 24, 2008, Respondent EPA filed a petition for rehearing or, in the alternative, for a remand of the case without vacatur. On October 21, 2008, we issued an order on our own motion directing the parties to file a response to EPA’s petition. (Order at 1, Oct. 21, 2008.) We also required the parties to 'address (1) whether any party is seeking vacatur of the Clean Air Interstate Rule, and (2) whether the court should stay its mandate until Respondent [EPA] promulgates a revised rule.' Id. Respondent EPA was given leave to 'reply to the question whether a stay of the court’s mandate in lieu of immediate vacatur would suffice.' Id.

"Having considered the parties’ respective positions with respect to the remedy in this case, the court hereby grants EPA’s petition only to the extent that we will remand the case without vacatur for EPA to conduct further proceedings consistent with our prior opinion. . . In addition, some of the Petitioners have suggested that this court impose a definitive deadline by which EPA must correct CAIR’s flaws. Notwithstanding these requests, the court will refrain from doing so. Though we do not impose a particular schedule by which EPA must alter CAIR, we remind EPA that we do not intend to grant an indefinite stay of the effectiveness of this court’s decision. Our opinion revealed CAIR’s fundamental flaws, which EPA must still remedy. Further, we remind the Petitioners that they may bring a mandamus petition to this court in the event that EPA fails to modify CAIR in a manner consistent with our July 11, 2008 opinion."

In a separate concurring opinion, one of the Judges indicated, "The parties’ persuasive demonstration, extending beyond short-term health benefits to impacts on planning by states and industry with respect to interference with the states’ ability to meet deadlines for attaining national ambient air quality standards for PM2.5 and 8-hour ozone, shows that the rule has become so intertwined with the regulatory scheme that its vacatur would sacrifice clear benefits to public health and the environment while EPA fixes the rule."

Vickie Patton, deputy general counsel at Environmental Defense Fund (EDF) said, "Today's court decision is a welcome gift for the millions of American's that face serious health threats from power plant pollution. Power plants across the East will reduce millions of tons of smog and soot pollution today while America's new leadership fixes the mistakes made by the Bush Administration."

Access the complete opinion (click here). Access a release from EDF (click here). Access EPA's CAIR website for additional information (click here).