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."
Access the complete opinion (click here).
Showing posts with label CAA. Show all posts
Showing posts with label CAA. Show all posts
Friday, March 13, 2009
Friday, February 6, 2009
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).
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).
Wednesday, September 3, 2008
Sierra Club v. Stephen L. Johnson
Sep 2: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-11537. As explained by the Appeals Court, this Clean Air Act (CAA) case involves a dispute over what triggers the U.S. EPA's statutory duty to object to the issuance of a Title V operating permit under 42 U.S.C. § 7661d(b)(2). The CAA requires the EPA Administrator to object to an operating permit “if [a] petitioner demonstrates to the Administrator that [a] permit is not in compliance with the requirements of [the Clean Air Act].” Id. The Sierra Club and the Coosa River Basin Initiative, the Petitioners in the case, challenge operating permits issued to the Georgia Power Company.
In mounting their challenge before the EPA Administrator, Petitioners relied exclusively on the Agency’s own violation notice and a subsequent complaint filed against Georgia Power in an unresolved civil enforcement action. The EPA Administrator refused to object. He found the Petitioners had not satisfied their burden of demonstrating the Georgia Power permits were not in compliance with the Act. Petitioners asked the Appeals Court to force the Agency to issue objections to the permits. Georgia Power Company, Oglethorpe Power Corporation, and the Georgia Environmental Protection Division intervened on behalf of EPA.
The Appeals Court said, "We deny the request because we hold the EPA Administrator’s actions fell within the bounds of his discretion: A violation notice and civil complaint are merely initial steps in an enforcement action and do not, by themselves, inevitably trigger the EPA Administrator’s duty to object under 42 U.S.C. § 7661d(b)(2)."
In summary, the Appeals Court said, ". . . we conclude the EPA has offered a reasonable interpretation of the statute that deserves deference: Title V operating permits are required to contain all applicable clean air requirements, see 42 U.S.C. § 7661c(a), and under § 7661d(b)(2) a petitioner must demonstrate to the Administrator that a permit does not contain a requirement that is applicable to that permit’s source. Here, Petitioners only offered evidence that the EPA had initiated proceedings to resolve the applicability of PSD [prevention of significant deterioration] requirements to the Bowen and Scherer plants. This evidence, without more, was insufficient to trigger the Administrator’s duty to object to the permits because the EPA had discretion to reasonably conclude the applicability of PSD limits to the Bowen and Scherer plants was still very much unresolved. Therefore the EPA Administrator did not act arbitrarily in declining to object to the Bowen and Scherer permits, which did not contain PSD-related limits or compliance schedules." While the petition was denied the Appeals Court noted that the EPA action against Georgia Power is still unresolved.
Access the complete opinion (click here).
In mounting their challenge before the EPA Administrator, Petitioners relied exclusively on the Agency’s own violation notice and a subsequent complaint filed against Georgia Power in an unresolved civil enforcement action. The EPA Administrator refused to object. He found the Petitioners had not satisfied their burden of demonstrating the Georgia Power permits were not in compliance with the Act. Petitioners asked the Appeals Court to force the Agency to issue objections to the permits. Georgia Power Company, Oglethorpe Power Corporation, and the Georgia Environmental Protection Division intervened on behalf of EPA.
The Appeals Court said, "We deny the request because we hold the EPA Administrator’s actions fell within the bounds of his discretion: A violation notice and civil complaint are merely initial steps in an enforcement action and do not, by themselves, inevitably trigger the EPA Administrator’s duty to object under 42 U.S.C. § 7661d(b)(2)."
In summary, the Appeals Court said, ". . . we conclude the EPA has offered a reasonable interpretation of the statute that deserves deference: Title V operating permits are required to contain all applicable clean air requirements, see 42 U.S.C. § 7661c(a), and under § 7661d(b)(2) a petitioner must demonstrate to the Administrator that a permit does not contain a requirement that is applicable to that permit’s source. Here, Petitioners only offered evidence that the EPA had initiated proceedings to resolve the applicability of PSD [prevention of significant deterioration] requirements to the Bowen and Scherer plants. This evidence, without more, was insufficient to trigger the Administrator’s duty to object to the permits because the EPA had discretion to reasonably conclude the applicability of PSD limits to the Bowen and Scherer plants was still very much unresolved. Therefore the EPA Administrator did not act arbitrarily in declining to object to the Bowen and Scherer permits, which did not contain PSD-related limits or compliance schedules." While the petition was denied the Appeals Court noted that the EPA action against Georgia Power is still unresolved.
Access the complete opinion (click here).
Wednesday, August 27, 2008
El Comite para el Bienestar de Earlimart v. Warmerdam
Aug 20: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-16000, 06-16131. As explained by the Appeals Court, the case involves a challenge under § 304 of the Clean Air Act (CAA), see 42 U.S.C. § 7604(a) -- the citizen suit provision. A coalition of community organizations (El Comité) brought suit against California state officials (California) responsible for designing and implementing the State air quality plan. The complicated approval process for the State Implementation Plan (SIP) required extensive back-and-forth between California and U.S. EPA.
El Comité takes issue with both the process by which California obtained EPA approval of the SIP and the final outcome of that approval process. In particular, El Comité argues that California violated Federal law by failing to adhere to the SIP approved by the EPA, which it argues required California to implement additional regulations in five areas where air quality standards for reducing harmful emissions have not been met. They charge, "California went astray. . . by using the wrong data to calculate the baseline for its emission standards and by ignoring deadlines that were intended to be incorporated into EPA’s final approval of the SIP." The Appeals Court said, "El Comité’s claim turns on determination of what documents were incorporated into the final SIP and the EPA rule, and interpretation of what the SIP, and hence federal law, requires of California."
The district court concluded that it did not have jurisdiction to review El Comité’s claim regarding the data and methodology used by California to calculate the baseline for emissions standards. The court agreed, however, with El Comité’s expansive interpretation of the SIP, and ordered relief based on that interpretation. That relief was also built on the methodology El Comité advocated for use in calculating the baseline -- the same methodology the district court had held it was without jurisdiction to review.
The Appeals Court indicates that, "As it [district court] carefully worked through the parties’ labyrinthine administrative law arguments, the court acknowledged that its rulings were potentially incongruous. We agree. In our view, the district court ultimately exceeded its jurisdiction. Because § 304 of the CAA provides jurisdiction only to enforce an 'emission standard or limitation,' and because the challenged conduct did not implicate such a standard or limitation, the court was without jurisdiction to order a remedy."
Access the complete opinion (click here).
El Comité takes issue with both the process by which California obtained EPA approval of the SIP and the final outcome of that approval process. In particular, El Comité argues that California violated Federal law by failing to adhere to the SIP approved by the EPA, which it argues required California to implement additional regulations in five areas where air quality standards for reducing harmful emissions have not been met. They charge, "California went astray. . . by using the wrong data to calculate the baseline for its emission standards and by ignoring deadlines that were intended to be incorporated into EPA’s final approval of the SIP." The Appeals Court said, "El Comité’s claim turns on determination of what documents were incorporated into the final SIP and the EPA rule, and interpretation of what the SIP, and hence federal law, requires of California."
The district court concluded that it did not have jurisdiction to review El Comité’s claim regarding the data and methodology used by California to calculate the baseline for emissions standards. The court agreed, however, with El Comité’s expansive interpretation of the SIP, and ordered relief based on that interpretation. That relief was also built on the methodology El Comité advocated for use in calculating the baseline -- the same methodology the district court had held it was without jurisdiction to review.
The Appeals Court indicates that, "As it [district court] carefully worked through the parties’ labyrinthine administrative law arguments, the court acknowledged that its rulings were potentially incongruous. We agree. In our view, the district court ultimately exceeded its jurisdiction. Because § 304 of the CAA provides jurisdiction only to enforce an 'emission standard or limitation,' and because the challenged conduct did not implicate such a standard or limitation, the court was without jurisdiction to order a remedy."
Access the complete opinion (click here).
Sierra Club v. U.S. EPA
Aug 19: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 04-1243, 07-1039. As explained by the majority in this 2-1 split decision, the 1990 Amendments to the Clean Air Act compel certain stationary sources of air pollution to obtain permits from state and local authorities that identify all emission limits for the source and also include “monitoring . . . requirements to assure compliance with the permit terms and conditions.” 42 U.S.C. § 7661c(c). Sometimes, existing monitoring requirements do not “assure compliance.” The U.S. EPA promulgated a rule preventing state and local authorities from supplementing these inadequate monitoring requirements. The majority opinion vacated the rule saying that, ". . . it is contrary to the statutory directive that each permit must include adequate monitoring requirements."
The majority clarifies the issue by citing an example. ". . . suppose there is a standard that limits emission from a given stationary source to X units of pollutant per day. Suppose also that the standard requires annual monitoring. Where annual testing cannot assure compliance with a daily emission limit, may the permitting authority supplement the monitoring requirement 'to assure compliance with the permit terms and conditions,' as the Act commands? 42 U.S.C. § 7661c(c)."
The majority notes that EPA's position on the issue has varied over time. In 1997, EPA took the position that state and local permitting authorities could supplement periodic monitoring requirements that failed to assure compliance. The Appeals Court cites a letter from Winston A. Smith, Director, Air, Pesticides & Toxics Mgmt. Div., EPA, to Howard L. Rhodes, Director, Air Res. Mgmt. Div., Fla. Dep’t of Envtl. Prot. (Dec. 11, 1997). Then in 2004, EPA issued a rule which provided that nothing in the Part 70 Rules authorized permitting authorities to supplement inadequate monitoring requirements. See 69 Fed. Reg. 3202 (Jan. 22, 2004). EPA said that it alone would remedy inadequate monitoring requirements by undertaking a “programmatic” strategy. The Appeals Court vacated the 2004 rule because EPA had not allowed for notice and comment [Envtl. Integrity Project v. EPA, 425 F.3d 992, 998 (D.C. Cir. 2005)], and then EPA noticed and adopted an identical rule in December 2006 [71 Fed. Reg. 75,422 (Dec. 15, 2006) (2006 rule)].
In vacating the 2006 rule, the Appeals Court majority said, ". . . we have concluded the Act requires: a permitting authority may supplement an inadequate monitoring requirement so that the requirement will 'assure compliance with the permit terms and conditions.' Because § 70.6(c)(1) can be reasonably read this way, we uphold the monitoring provisions of the Part 70 Rules as consistent with the Act. . . We grant the petition for review with respect to the 2006 rule, which we vacate. We deny the petition for review with respect to the monitoring provisions of the Part 70 Rules."
In dissent, one of the three Justices said, "I respectfully part ways with the majority opinion because the relevant statutory language supports EPA’s 2006 rule. . . The dispute in this case boils down to the following: When issuing permits, can state and local permitting authorities independently determine whether, in their view, those pre-existing monitoring requirements are sufficient “to assure compliance” with emission limits -- and if they think not, impose additional monitoring requirements? The legal question here is: Who Decides? According to petitioners, the statute says that state and local permitting authorities can decide on their own to impose additional monitoring requirements as they see fit. EPA responds that it possesses the statutory authority and discretion to decide whether state and local permitting authorities can impose additional monitoring requirements. The statutory text resolves that question; the statute grants EPA the authority to determine whether state and local permitting authorities can impose additional monitoring requirements. . ."
Earthjustice challenged the 2006 EPA rule on behalf of the Environmental Integrity Project, Environmental Defense Fund, Natural Resources Defense Council and Sierra Club. They said the rule specifically prohibited permitting authorities from including stronger air pollution monitoring requirements in permits for approximately 18,000 major stationary pollution sources, even where needed to guarantee compliance with emission limits. Earthjustice attorney Keri Powell who argued the case in court said, “This is a huge victory for everyone who breathes. We can’t have strong enforcement of our clean air laws unless we know what polluters are putting into the air.”
Sierra Club Executive Director Carl Pope issued a statement saying, "This is a huge victory against one of the most egregious rollbacks of environmental protections in our nation’s history. . ." American Petroleum Institute, who intervened on behalf of U.S. EPA, did not issue a statement on the decision.
Access the complete opinion and dissent (click here). Access a release from Earthjustice (click here). Access a statement from Sierra Club (click here).
The majority clarifies the issue by citing an example. ". . . suppose there is a standard that limits emission from a given stationary source to X units of pollutant per day. Suppose also that the standard requires annual monitoring. Where annual testing cannot assure compliance with a daily emission limit, may the permitting authority supplement the monitoring requirement 'to assure compliance with the permit terms and conditions,' as the Act commands? 42 U.S.C. § 7661c(c)."
The majority notes that EPA's position on the issue has varied over time. In 1997, EPA took the position that state and local permitting authorities could supplement periodic monitoring requirements that failed to assure compliance. The Appeals Court cites a letter from Winston A. Smith, Director, Air, Pesticides & Toxics Mgmt. Div., EPA, to Howard L. Rhodes, Director, Air Res. Mgmt. Div., Fla. Dep’t of Envtl. Prot. (Dec. 11, 1997). Then in 2004, EPA issued a rule which provided that nothing in the Part 70 Rules authorized permitting authorities to supplement inadequate monitoring requirements. See 69 Fed. Reg. 3202 (Jan. 22, 2004). EPA said that it alone would remedy inadequate monitoring requirements by undertaking a “programmatic” strategy. The Appeals Court vacated the 2004 rule because EPA had not allowed for notice and comment [Envtl. Integrity Project v. EPA, 425 F.3d 992, 998 (D.C. Cir. 2005)], and then EPA noticed and adopted an identical rule in December 2006 [71 Fed. Reg. 75,422 (Dec. 15, 2006) (2006 rule)].
In vacating the 2006 rule, the Appeals Court majority said, ". . . we have concluded the Act requires: a permitting authority may supplement an inadequate monitoring requirement so that the requirement will 'assure compliance with the permit terms and conditions.' Because § 70.6(c)(1) can be reasonably read this way, we uphold the monitoring provisions of the Part 70 Rules as consistent with the Act. . . We grant the petition for review with respect to the 2006 rule, which we vacate. We deny the petition for review with respect to the monitoring provisions of the Part 70 Rules."
In dissent, one of the three Justices said, "I respectfully part ways with the majority opinion because the relevant statutory language supports EPA’s 2006 rule. . . The dispute in this case boils down to the following: When issuing permits, can state and local permitting authorities independently determine whether, in their view, those pre-existing monitoring requirements are sufficient “to assure compliance” with emission limits -- and if they think not, impose additional monitoring requirements? The legal question here is: Who Decides? According to petitioners, the statute says that state and local permitting authorities can decide on their own to impose additional monitoring requirements as they see fit. EPA responds that it possesses the statutory authority and discretion to decide whether state and local permitting authorities can impose additional monitoring requirements. The statutory text resolves that question; the statute grants EPA the authority to determine whether state and local permitting authorities can impose additional monitoring requirements. . ."
Earthjustice challenged the 2006 EPA rule on behalf of the Environmental Integrity Project, Environmental Defense Fund, Natural Resources Defense Council and Sierra Club. They said the rule specifically prohibited permitting authorities from including stronger air pollution monitoring requirements in permits for approximately 18,000 major stationary pollution sources, even where needed to guarantee compliance with emission limits. Earthjustice attorney Keri Powell who argued the case in court said, “This is a huge victory for everyone who breathes. We can’t have strong enforcement of our clean air laws unless we know what polluters are putting into the air.”
Sierra Club Executive Director Carl Pope issued a statement saying, "This is a huge victory against one of the most egregious rollbacks of environmental protections in our nation’s history. . ." American Petroleum Institute, who intervened on behalf of U.S. EPA, did not issue a statement on the decision.
Access the complete opinion and dissent (click here). Access a release from Earthjustice (click here). Access a statement from Sierra Club (click here).
Friday, August 15, 2008
Galveston-Houston Association For Smog Prevention v. U.S. EPA
Aug 13: In the U.S. Court of Appeals, Fifth Circuit, Case No. 06-61030. Petitioner Galveston-Houston Association for Smog Prevention (GHASP) sought a review of the U.S. EPA's final rulemaking action approving the Mid-Course Review State Implementation Plan (MCR SIP) submitted by the State of Texas for the Houston-Galveston-Brazoria Severe Ozone Nonattainment Area (HGB area). Texas submitted the MCR SIP to satisfy one of the enforceable commitments contained in a previously approved State Implementation Plan (SIP) for the HGB area. GHASP argues that: (1) EPA acted arbitrarily and capriciously in approving the MCR SIP because it did not demonstrate attainment of specified emissions reductions; (2) EPA acted arbitrarily and capriciously when it relied on "weight of evidence" analysis to excuse modeled nonattainment; and (3) by approving the MCR SIP, the EPA violated the non-interference or anti-backsliding provision of the Clean Air Act.
The Appeals Court denied the petition for review and also denied an award of attorneys’ fees to GHASP. In part, the Appeals Court said, "Because the definition of reasonable further progress is defined within the statute, the question of whether the MCR SIP violates Section 110(l) turns on the meaning of 'would interfere.' The statute itself does not define 'would interfere.' Because Congress has not directly spoken on this issue, under Chevron step two we will defer to the EPA’s interpretation unless it is arbitrary or capricious.
"GHASP contends that the EPA must show that results under the MCR SIP are better than results under the 2001 SIP to comply with Section 110(l). However, nothing in the plain language of Section 110 (l) supports this interpretation. The EPA and BCCA Appeal Group in its amicus brief, urge this court to adopt the interpretation of interference accepted by the Sixth Circuit in Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006), in which that court held that the EPA may approve a SIP revision 'unless the agency finds it will make air quality worse.' According to the EPA, under Section 110(l), the EPA’s approval of Texas’s MCR SIP does not constitute interference as long as the revisions to the SIP were properly substituted by new measures that would offset the effect of those measures removed from MCR SIP. Thus, changes to a SIP, either dropping measures or reducing measurement requirements, are not by themselves sufficient to prove interference. Rather, one must show that the substitute measures are not at least equivalent to the previous measures in achieving attainment. We find the EPA’s interpretation of Section 110(l) reasonable and thus refuse to substitute our judgment for that of the Agency’s."
Access the complete opinion (click here).
The Appeals Court denied the petition for review and also denied an award of attorneys’ fees to GHASP. In part, the Appeals Court said, "Because the definition of reasonable further progress is defined within the statute, the question of whether the MCR SIP violates Section 110(l) turns on the meaning of 'would interfere.' The statute itself does not define 'would interfere.' Because Congress has not directly spoken on this issue, under Chevron step two we will defer to the EPA’s interpretation unless it is arbitrary or capricious.
"GHASP contends that the EPA must show that results under the MCR SIP are better than results under the 2001 SIP to comply with Section 110(l). However, nothing in the plain language of Section 110 (l) supports this interpretation. The EPA and BCCA Appeal Group in its amicus brief, urge this court to adopt the interpretation of interference accepted by the Sixth Circuit in Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006), in which that court held that the EPA may approve a SIP revision 'unless the agency finds it will make air quality worse.' According to the EPA, under Section 110(l), the EPA’s approval of Texas’s MCR SIP does not constitute interference as long as the revisions to the SIP were properly substituted by new measures that would offset the effect of those measures removed from MCR SIP. Thus, changes to a SIP, either dropping measures or reducing measurement requirements, are not by themselves sufficient to prove interference. Rather, one must show that the substitute measures are not at least equivalent to the previous measures in achieving attainment. We find the EPA’s interpretation of Section 110(l) reasonable and thus refuse to substitute our judgment for that of the Agency’s."
Access the complete opinion (click here).
Friday, August 1, 2008
Citizens Against Ruining The Environment v. U.S. EPA
Jul 28: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 07-3197, 07-3198 & 07-3199. In this consolidated appeal of three related administrative review proceedings, the petitioners, several environmental protection groups and the attorney general of the State of Illinois, challenge the failure of U.S. EPA to object to certain operating permits proposed by the Illinois Environmental Protection Agency (IEPA) pursuant to the Clean Air Act (CAA). The petitioners contend that the Administrator was obligated to object because they clearly “demonstrated” that the permits were not in compliance with the CAA.
The EPA, on the other hand, maintains that the Administrator reasonably exercised his discretion in determining that the petitioners did not “demonstrate” a violation because their petitions called for further investigation and analysis, a task the Administrator found to be more appropriately carried out through the CAA’s enforcement process. The petitioners argue that the CAA grants the Administrator no such discretion.
The case involves Midwest Generation, the operator of multiple, large, coal-fired power plants in Illinois. Six of those plants: the Fisk, Crawford, Will County, Powerton, Joliet, and Waukegan stations are involved. Midwest’s predecessor, Commonwealth Edison, originally submitted applications to the IEPA for Title V operating permits back in 1995.
The Appeals Court said because the CAA does not provide a standard of review, we review the EPA’s decision under the Administrative Procedure Act (APA), which contemplates setting aside agency actions only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Appeals Court determined that the Attorney General had "not met her burden of establishing standing in this case" and dismissed her petition for review. The review then focused on the environmental groups’ challenge to the Administrator’s decision not to object to the Fisk and Crawford permits.
The groups cited a precedent from the Court of Appeals for the Second Circuit’s opinion in New York Public Interest Research Group, Inc. v. Johnson, 427 F.3d 172 (2d Cir. 2005). In summary, the Appeals Court disagreed with the groups and said, ". . .we conclude that where, as here, there is contested evidence of a potential violation requiring further investigation and analysis, the CAA allows the EPA reasonable discretion to determine that the petition failed to demonstrate noncompliance and to refer the matter to the enforcement process." The Appeals Court denied the environmental groups’ petition for review (No. 07-3197).
Access the complete opinion (click here).
The EPA, on the other hand, maintains that the Administrator reasonably exercised his discretion in determining that the petitioners did not “demonstrate” a violation because their petitions called for further investigation and analysis, a task the Administrator found to be more appropriately carried out through the CAA’s enforcement process. The petitioners argue that the CAA grants the Administrator no such discretion.
The case involves Midwest Generation, the operator of multiple, large, coal-fired power plants in Illinois. Six of those plants: the Fisk, Crawford, Will County, Powerton, Joliet, and Waukegan stations are involved. Midwest’s predecessor, Commonwealth Edison, originally submitted applications to the IEPA for Title V operating permits back in 1995.
The Appeals Court said because the CAA does not provide a standard of review, we review the EPA’s decision under the Administrative Procedure Act (APA), which contemplates setting aside agency actions only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Appeals Court determined that the Attorney General had "not met her burden of establishing standing in this case" and dismissed her petition for review. The review then focused on the environmental groups’ challenge to the Administrator’s decision not to object to the Fisk and Crawford permits.
The groups cited a precedent from the Court of Appeals for the Second Circuit’s opinion in New York Public Interest Research Group, Inc. v. Johnson, 427 F.3d 172 (2d Cir. 2005). In summary, the Appeals Court disagreed with the groups and said, ". . .we conclude that where, as here, there is contested evidence of a potential violation requiring further investigation and analysis, the CAA allows the EPA reasonable discretion to determine that the petition failed to demonstrate noncompliance and to refer the matter to the enforcement process." The Appeals Court denied the environmental groups’ petition for review (No. 07-3197).
Access the complete opinion (click here).
Monday, June 9, 2008
Natural Resources Defense Council v. EPA
Jun 6: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1053, Natural Resources Defense Council (NRDC) v. U.S. EPA, with American Chemistry Council intervenor. In short summary the Appeals Court explains that synthetic organic chemicals have few direct consumer uses, but they often serve as raw materials in the production of plastics, rubbers, fibers, protective coatings, and detergents. Petitioners, the NRDC and the Louisiana Environmental Action Network (LEAN), challenged EPA’s "residual risk" rulemaking under subsection 112(f) of the Clean Air Act for facilities that use or produce synthetic organic chemicals (the industry). Petitioners also challenged EPA’s technology review under subsection 112(d)(6). The Appeals Court said, "In a rather unusual bit of rulemaking, the agency determined by rule not to change its previous rule, which gave rise to petitioners’ challenge. We deny the petition."
Explaining further, after submitting a required report to Congress in 1999, EPA commenced residual risk rulemaking, apparently because it read the statute as requiring a rulemaking proceeding to consider whether to revise the technology-based standards, since the industry’s emissions pose lifetime excess cancer risks of "greater than one-in-one million."
In the notice of proposed rulemaking, EPA listed two options for the residual risk rulemaking, one of which would have imposed somewhat stricter standards. But the other, which EPA adopted in the final rule, was a reaffirmation of the existing rule. EPA determined that under the existing technology-based standard, no individual would face "an excess lifetime cancer risk of greater than 100-in-one million," which EPA regards as the “presumptively acceptable” level under its precedents.
In the same regulatory procedure, EPA sought to satisfy another statutory requirement, subsection 112(d)(6), which commands the Administrator to “review, and revise as necessary” the technology-based standards in light of technological developments at least every eight years. It concluded there were no such developments.
In conclusion, the Appeals Court said, "In sum, petitioners’ arguments boil down to one simple point: EPA could have used better data in conducting its risk analysis. Whether or not this is true, it misstates the inquiry under the arbitrary and capricious standard. . . In other words, the sole question before us is whether EPA has acted reasonably, not whether it has acted flawlessly. On the record before us, EPA explained why it chose to rely on industry-supplied data, and it reasonably responded to petitioners’ objections to its data analysis. . ."
In response, NRDC issued a release saying the court "upheld the Environmental Protection Agency’s refusal to protect American families from cancer risks posed by the chemical industry." NRDC said as a result it is launching a campaign "to force EPA to re-open scores of toxic air pollution regulations to correct public health and legal deficiencies identified by prior court rulings." NRDC said, “We are disappointed that the court sided with EPA’s refusal to protect the American people from cancer-causing toxic air pollution. While the Bush EPA will celebrate this perverse victory for polluters, today’s ruling is a loss for the American people and the fight against cancer.”
In the coming weeks, NRDC said it will submit a formal legal petition to the EPA Administrator demanding that EPA conduct rulemakings to strengthen the vast majority of existing toxic air pollution regulations that suffer from "common legal and health deficiencies. . . One such regulation is the 1994 rule governing the chemical industry that was part of the backdrop for today’s court decision." They said that previous lawsuits brought by NRDC and other environmental groups, have produced a series of court rulings from 2005-2007 that found the "EPA-created defects to be squarely in violation of the Clean Air Act."
The American Chemistry Council (ACC) applauded the decision. ACC President and CEO Jack Gerard said, “We are thrilled by the unanimous decision made by the panel judges. The business of chemistry represents the gold standard in responsible product management and is committed to continual emissions improvement. ACC helped defend EPA’s decision and we are pleased that the agency’s determination, based in sound science, was upheld.” ACC indicated that EPA’s 2006 residual risk and technology review rule was largely based on emissions data submitted by ACC member companies. ACC indicated that, "The rule affirmed that the application of maximum achievable control technology since 1994 has resulted in a substantial reduction of hazardous air pollutant emissions from the synthetic organic chemical manufacturing industry.
Access the complete 18-page opinion (click here). Access a release from NRDC (click here). Access a release from ACC (click here).
Explaining further, after submitting a required report to Congress in 1999, EPA commenced residual risk rulemaking, apparently because it read the statute as requiring a rulemaking proceeding to consider whether to revise the technology-based standards, since the industry’s emissions pose lifetime excess cancer risks of "greater than one-in-one million."
In the notice of proposed rulemaking, EPA listed two options for the residual risk rulemaking, one of which would have imposed somewhat stricter standards. But the other, which EPA adopted in the final rule, was a reaffirmation of the existing rule. EPA determined that under the existing technology-based standard, no individual would face "an excess lifetime cancer risk of greater than 100-in-one million," which EPA regards as the “presumptively acceptable” level under its precedents.
In the same regulatory procedure, EPA sought to satisfy another statutory requirement, subsection 112(d)(6), which commands the Administrator to “review, and revise as necessary” the technology-based standards in light of technological developments at least every eight years. It concluded there were no such developments.
In conclusion, the Appeals Court said, "In sum, petitioners’ arguments boil down to one simple point: EPA could have used better data in conducting its risk analysis. Whether or not this is true, it misstates the inquiry under the arbitrary and capricious standard. . . In other words, the sole question before us is whether EPA has acted reasonably, not whether it has acted flawlessly. On the record before us, EPA explained why it chose to rely on industry-supplied data, and it reasonably responded to petitioners’ objections to its data analysis. . ."
In response, NRDC issued a release saying the court "upheld the Environmental Protection Agency’s refusal to protect American families from cancer risks posed by the chemical industry." NRDC said as a result it is launching a campaign "to force EPA to re-open scores of toxic air pollution regulations to correct public health and legal deficiencies identified by prior court rulings." NRDC said, “We are disappointed that the court sided with EPA’s refusal to protect the American people from cancer-causing toxic air pollution. While the Bush EPA will celebrate this perverse victory for polluters, today’s ruling is a loss for the American people and the fight against cancer.”
In the coming weeks, NRDC said it will submit a formal legal petition to the EPA Administrator demanding that EPA conduct rulemakings to strengthen the vast majority of existing toxic air pollution regulations that suffer from "common legal and health deficiencies. . . One such regulation is the 1994 rule governing the chemical industry that was part of the backdrop for today’s court decision." They said that previous lawsuits brought by NRDC and other environmental groups, have produced a series of court rulings from 2005-2007 that found the "EPA-created defects to be squarely in violation of the Clean Air Act."
The American Chemistry Council (ACC) applauded the decision. ACC President and CEO Jack Gerard said, “We are thrilled by the unanimous decision made by the panel judges. The business of chemistry represents the gold standard in responsible product management and is committed to continual emissions improvement. ACC helped defend EPA’s decision and we are pleased that the agency’s determination, based in sound science, was upheld.” ACC indicated that EPA’s 2006 residual risk and technology review rule was largely based on emissions data submitted by ACC member companies. ACC indicated that, "The rule affirmed that the application of maximum achievable control technology since 1994 has resulted in a substantial reduction of hazardous air pollutant emissions from the synthetic organic chemical manufacturing industry.
Access the complete 18-page opinion (click here). Access a release from NRDC (click here). Access a release from ACC (click here).
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