Home » Case Summaries » 2017 » Yazzie v. U.S. Environmental Protection Agency, 851 F.3d 960 (9th Cir. 2017).

 
 

Yazzie v. U.S. Environmental Protection Agency, 851 F.3d 960 (9th Cir. 2017).

 

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Petitioner Vincent Yazzie, tribal organizations, and non-profit environmental organizations (Petitioners) sought final review of a United States Environmental Protection Agency (EPA) source-specific Federal Implementation Plan (FIP) under the Clean Air Act (CAA).[1] Reviewing EPA’s action under the arbitrary and capricious standard pursuant to the Administrative Procedure Act (APA),[2] the United States Court of Appeals for the Ninth Circuit denied Petitioners’ petitions.[3]

The proposed FIP occurred in February 2013 regarding the Navajo Generating Station (Station), a coal-fired plant located on the Navajo Nation Reservation in Arizona and the largest coal fired plant in the western United States. Under the proposed amended lease plan, the plant would operate until 2044. After that date, the Navajo Nation could continue the station as a “new source” that generates electricity without coal. After receiving comments on the proposed rule, EPA issued its final rule in August 2014,[4] which finalized the longer deadline for emission reductions and emission credits. In turn, Plaintiffs filed petitions challenging EPA’s action.

The statutory background of this case begins with the CAA’s invitation for states to submit a “State Implementation Plan” (SIP) that sets emission limits and other necessary measures to make reasonable progress towards relevant goals.[5] If a state does not submit a SIP, or if EPA rejects the state SIP, EPA must generate a FIP to fill any resulting gaps.[6] SIPs that address regional haze must identify the best available retrofit technology (BART) to reduce emissions from certain major emission sources and then implement the technology within five years.[7] The Navajo Generating Station is a major source of coal emissions. EPA issued a final rule establishing a longer deadline for emission reductions at the plant. EPA provided for a more flexible extended compliance schedule due to the station’s unusual and unique challenges and EPA’s discretion under the Tribal Authority Rule (the TAR).[8]

The first issue turned on the appropriate standard of review. Petitioners argued that the government’s partial financial interest in the Station counseled against judicial deference to EPA’s interpretation. The court rejected this argument because EPA lacked a self-serving financial interest and its interpretation was not intended to protect the government’s ownership in the station.

The next issue was the applicability of the emission reduction deadline to implement BART. Petitioners charged that EPA failed to implement BART under the statutory requirement as “expeditiously as practicable but in no event later than five years” after a SIP’s approval or the promulgation of a FIP.[9] The court found that standard inapplicable because EPA applied a “better than BART” alternative.

The third issue looked at the regulatory deadline to implement a BART alternative. The parties disputed whether the regulatory deadline applies to the instant FIP, promulgated in place of a Tribal Implementation Plan (TIP) under the TAR, rather than under a SIP. Petitioners contended that EPA could not issue the FIP under the TAR because Navajo Nation contracted away its right to regulate the station. Therefore, the Navajo Station should not be eligible for “treatment as a State” and could not issue a TIP. The court disagreed and held that EPA reasonably concluded that the TAR applied because Navajo Nation had not submitted a TIP. The court deferred to EPA’s interpretation that in the absence of a TIP, 40 C.F.R. § 49.11(a) provides EPA authority to promulgate a FIP for the station.[10]

The next issue was whether the state could bypass BART with a “better than BART” alternative. For the bypass to occur, a state implements a BART alternative where the SIP must require that all necessary emission reductions take place during the period of the first long-term strategy for regional haze.[11] The court concluded that the EPA determination, which stated that the section does not apply, was correct. The court deferred to EPA’s interpretation, finding that it satisfied Auer v. Robbins and was not “plainly erroneous or inconsistent with the regulation.”[12]

The court next reviewed EPA’s determination that the FIP alternative results in greater reasonable progress toward emissions reductions than the BART technology, a so-called “better than BART” alternative.[13] Petitioners alleged that EPA failed to show by the “clear weight of the evidence” in its analysis that its alternatives would achieve greater reasonable progress than BART. The Ninth Circuit held that the “clear weight of the evidence standard” was inapplicable to the question at hand; rather, EPA was only required to show 1) that the distribution of emissions was not substantially different under BART, and 2) the alternative would result in greater emissions reductions.

Petitioners’ first prong of the FIP argument, that the distribution of emissions was not substantially “different under the BART,” contended that distribution of emissions should include the distribution of emissions over time. The court found that the plain language did not answer the question, and EPA’s consistent interpretation of geographic distribution weighs against Petitioners’ argument for temporal distribution. Referring again to Auer, the court concluded that the agency’s interpretation was not plainly erroneous or inconsistent with the regulation and held in favor of EPA.

Petitioners’ second prong of the FIP argument contended that EPA failed to show that the BART alternative “results in greater emissions reductions.” Petitioners argued that the FIP’s BART alternative did not actually result in greater emission reductions than BART. Therefore, the alternative does not demonstrate greater reasonable progress. This contention turned on whether it was reasonable for EPA to grant the station an emission credit when evaluating whether the BART alternative results in greater emission reductions. Petitioners argued this was unreasonable and inconsistent with prior EPA statements. The court rejected the premise underpinning Petitioner’s argument and held that giving the station a credit when evaluating the BART alternative was reasonable. The Ninth Circuit again deferred to EPA’s determination.

The final issue was Petitioners’ charge that EPA unlawfully failed to conduct a BART analysis or include any BART emission limits for the station. EPA determined that it was not necessary or appropriate to conduct a BART determination for particulate matter emissions because those emissions were already well-controlled and because the Station would be required to further reduce emissions pursuant to additional rules. This also was a reasonable exercise of EPA discretion.

In sum, the Ninth Circuit denied the petitions. The court found that, in light of the unique circumstances of this case, EPA did not act arbitrarily or capriciously. Auer and Chevron deference supported the agency’s interpretations.

Footnotes    (↵ returns to text)

  1. 42 U.S.C. §§ 7401–7671q (2012).
  2. 5 U.S.C. §§ 551–559, 701–706, 1305, 3344, 4301, 5335, 5372, 7521 (2012).
  3. Id. § 706.
  4. Approval of Air Quality Implementation Plans for Navajo Generating Station, 79 Fed. Reg. 46,514 (Aug. 8, 2014) (to be codified at 40 C.F.R. pt. 49).
  5. 42 U.S.C. § 7410(a).
  6. Id. § 7410(c)(1)(A).
  7. Id. § 7491(b), (g)(4); Approval of Air Quality Implementation Plans for Navajo Generating Station, 78 Fed. Reg. 8,274, 8,287–89 (Feb. 5, 2013) (to be codified at 40 C.F.R. pt. 49).
  8. Indian Tribes: Air Quality Planning and Management, 63 Fed. Reg. 7,254 (Feb. 12, 1998) (to be codified at 40 C.F.R. pts. 9, 35, 49, 50, and 81).
  9. 42 U.S.C. § 7491(b)(2)(A), (g)(4) (2012).
  10. See generally Auer v. Robbins, 519 U.S. 452 (1997) (noting that deference is usually given to a rule’s originator); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (stating that Administrator interpretation is given deference).
  11. 40 C.F.R. § 51.308(e)(2)(iii) (2017).
  12. Auer, 519 U.S. at 461 (1997).
  13. See 40 C.F.R. § 51.308(e)(2)(i) (2017).
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