Home » Case Summaries » 2015 » WildEarth Guardians v. U.S. Envtl. Prot. Agency, 759 F.3d 1064 (9th Cir. 2014)

 
 

WildEarth Guardians v. U.S. Envtl. Prot. Agency, 759 F.3d 1064 (9th Cir. 2014)

 

WildEarth Guardians (WildEarth)[1] sought review of the approval by the United States Environmental Protection Agency (EPA)[2] of Nevada’s state implementation plan (SIP) for regional haze under the Clean Air Act (CAA).[3] WildEarth alleged that EPA erred in approving Nevada’s SIP due to inadequate reasonable progress goals for improving visibility for the days on which visibility is most impaired, or “worst days,” in the Jarbridge Wilderness Area. WildEarth also claimed that Nevada’s SIP contained an improper best available retrofit technology (BART) determination for sulfur dioxide (SO2) emissions from the Reid Gardner Generating Station (Reid Gardner).[4] The Ninth Circuit heard WildEarth’s claims directly and reviewed them under an arbitrary and capricious standard of review. Holding that WildEarth lacked standing to challenge EPA’s approval of Nevada’s reasonable progress goals, and that EPA’s approval of Nevada’s SO2 BART determination was entitled to deference, the Ninth Circuit dismissed the petition for review in part and denied the petition in part.

Under the CAA, EPA must promulgate regulations designed to improve visibility in mandatory Class I federal areas, including national wilderness areas and certain national parks.[5] EPA’s Regional Haze Rule[6] ensures improved visibility in Class I federal areas by requiring SIPs to contain reasonable progress goals for improving visibility on worst days[7] and a BART determination for each BART-eligible pollution source.[8] EPA’s BART Guidelines assist states in determining emissions limitations for these sources by providing an evaluation process based upon five statutory factors.[9] For smaller plants with a total generating capacity below 750 megawatts, the court concluded BART Guidelines are advisory.[10]

The BART-eligible pollution source in this case, Reid Gardner, had a generating capacity below 750 megawatts. Nevada hired the firm CH2M HILL to prepare the BART analysis for Reid Gardner and CH2M HILL recommended a 0.40 pounds per million British thermal units (lb/MMbtu) limitation on SO2. Nevada reviewed and revised this limitation down to 0.15 lb/MMbtu. Nevada’s SIP submission to EPA provided progress goals for improved visibility in Jarbridge Wilderness Area and established limitations on emissions of SO2, nitrogen oxides, and particulate matter. WildEarth challenged Nevada’s SIP as inadequate to improve visibility on the worst days in Jarbridge Wilderness and as improperly allowing an increase in SO2 emissions from Reid Gardner.

Hearing the case directly, the Ninth Circuit first determined that WildEarth did not have standing to challenge EPA’s approval of Nevada’s progress goals for improved visibility in the Jarbridge Wilderness Area. WildEarth based its standing claim on the declaration of a member who lived in Colorado but regularly visited Nevada. However, the Ninth Circuit held that the member did not have standing, because even though she asserted displeasure in seeing pollution emitted by a Nevada power plant and expressed concern for her health, she had never visited Jarbridge Wilderness Area, nor did she have any future plans to do so. Therefore, the Ninth Circuit determined that the member failed to show a causal connection between EPA’s approval of Nevada’s reasonable progress goals for visibility in the Jarbridge Wilderness Area and her aesthetic displeasure or her health concerns. Additionally, the Ninth Circuit stated that the member did not show that a favorable decision would likely, as opposed to merely speculatively, redress her injuries.

Second, the Ninth Circuit held that EPA’s approval of Nevada’s SO2 BART determination was not arbitrary and capricious. WildEarth argued that EPA erred in approving Nevada’s SIP because it failed to document how each of the BART Guidelines factors was evaluated, and authorized an increase in SO2 emissions from the Reid Gardner plant. However, the Ninth Circuit determined that CH2M HILL’s report and Nevada’s review and revision of that report showed that Nevada conducted the required analysis. The court also stated that WildEarth’s objection to the SO2 BART determination for Reid Gardner rested on a misinterpretation of the data. WildEarth based its contention on annual emission rates at the plant, but EPA asserted that annual emission rates are not comparable to the 24-hour average emission limitation in Nevada’s SIP. The Ninth Circuit stated that it reviewed EPA’s approval with considerable deference because Nevada’s SO2 BART determination involved a high level of technical expertise.

In sum, the Ninth Circuit held that WildEarth lacked standing to challenge EPA’s approval of Nevada’s reasonable progress goals for improved visibility on the worst days in the Jarbridge Wilderness Area because its injury was not traceable to EPA’s action and it was not likely to be redressed by a favorable decision. Additionally, the Ninth Circuit disposed of the second issue by stating that EPA’s approval of Nevada’s SO2 BART determination for Reid Gardner was not arbitrary and capricious because EPA is entitled to considerable deference with regard to areas of technical expertise.

 

 

Footnotes    (↵ returns to text)

  1. Petitioner Wild-Earth Guardians is a nonprofit environmental organization.
  2. Sierra Pacific Power Company, Nevada Power Company, and the State of Nevada Division of Environmental Protection intervened on behalf of the respondent, EPA.
  3. 42 U.S.C. §§ 7401–7671q (2012).
  4. Reid Gardner is a generating station in southern Nevada.
  5. 40 C.F.R. §§ 51.308, 51.309(b)(1) (2014).
  6. Regional Haze Regulations, 64 Fed. Reg. 35,714 (July 1, 1999) (to be codified at 40 C.F.R. pt. 51).
  7. 40 C.F.R. § 51.308(d)(1) (2014).
  8. 40 C.F.R. § 51.308(e) (2014). A pollution source with the potential to emit 250 tons per year or more of an air pollutant is BART-eligible. 40 C.F.R. § 51.301 (2014).
  9. WildEarth Guardians v. U.S. Envtl. Prot. Agency,759 F.3d 1064, 1069 (9th Cir. 2014) (“First, states identify all available retrofit control technologies. Second, states eliminate technically infeasible options. Third, states evaluate the effectiveness of the remaining control technologies. Fourth, states evaluate the impacts, including the cost of compliance, the energy impacts, any non-air quality impacts, and the remaining useful life of the facility. Finally, states evaluate the visibility impacts.”).
  10. See 40 C.F.R. § 51.308(e)(1)(ii)(B) (2014).
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