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Ninth Circuit Denies Petition For Review of Clean Air Act Federal Implementation Plan For the Navajo Nation

The Ninth Circuit Court of Appeals denied a petition for review brought by plaintiffs tribal conservation organizations and environmental interest groups challenging the Federal Implementation Plan (FIP) prepared by the U.S. Environmental Protection Agency under the federal Clean Air Act (CAA) for the Navajo Generating Station (station) on the Navajo Nation Reservation in Arizona. [Vincent Harris Yazzie v. U.S. Environmental Protection Agency, et al., ___F.3d___, Case No. 14-73100 (9th Cir. 2017).]

Background

The station is the largest coal-fired plant in the western United States and emits nitrogen oxides (NOx) that impair visibility at national parks and wilderness areas. The CAA regulates regional haze, defined as:

 

  • …visibility impairment that is caused by the emission of air pollutants from numerous sources located over a wide geographic area.

The CAA also set a goal of achieving natural visibility by 2064.

A state can submit to EPA a State Implementation Plan (SIP) “setting forth emission limits and other measures necessary to make reasonable progress toward the national visibility goal.”

If a state does not submit a SIP or the SIP is rejected in whole or in part, EPA must generate a FIP to fill any gaps. Regional haze SIPs must identify the Best Available Retrofit Technology (BART) to reduce emissions from major emission sources. A state can bypass BART with a “better-than-BART alternative,” defined as an alternative that “will achieve greater reasonable progress than would have resulted from the installation and operation of BART.”

The court rejected petitioner’s two arguments for why EPA’s interpretation of the CAA and its implementing regulations should not be given deference. First, although the federal government is a partial owner of the station, this fact did not weigh against affording deference to EPA’s interpretation because EPA itself has no “self-serving or financial interest in the Station’s continued operation.” Second, the court held that a joint statement made by EPA and the U.S. Departments of Interior and Energy in January 2013, allegedly stating that EPA agreed to minimize negative impacts on U.S. government ownership interests “does not demonstrate that EPA’s interpretation was intended to protect the U.S. government’s ownership interest in the station.”

The court then explained why normal emission reduction deadlines do not apply to this FIP. First, the court rejected petitioner’s argument that EPA failed to comply with the five-year CAA implementation deadline required for BART plans because it only applies to BART but not to a “better-than-BART” alternative such as the disputed FIP.

Second, the court held that EPA reasonably determined that this FIP is not subject to the deadline normally attached to a SIP, requiring “that all necessary emission reductions take place during the period of the first long-term strategy for regional haze.”

The court then affirmed EPA’s determination that the FIP alternative is “better-than-BART” for three reasons. First, the court rejected petitioner’s contention that EPA needed to comply with all three methods of demonstrating that a “better-than-BART” alternative will result in “greater reasonable progress” than BART. EPA needed only to choose one of the separate methods. EPA chose the method of showing that the “distribution of emissions” is not substantially different under BART and the alternative and that the alternative “results in greater emission reductions.” EPA was not required to comply with either the “clear weight of the evidence” or the visibility modeling method in addition to its chosen method.

Second, the court rejected petitioner’s argument that in evaluating the “distribution of emissions” prong, EPA was required to consider both geographic distribution and temporal distribution. Since petitioner’s did not show that EPA was required to incorporate timing in the analysis, or that EPA’s consistent past interpretation of “distribution of emissions” as referring to geographic distribution only was “plainly erroneous or inconsistent with the regulation,” the court deferred to EPA’s interpretation of considering only geographic distribution.

Third, the court held that it was reasonable for EPA to give the station an emission credit when evaluating whether the BART alternative “results in greater emission reductions” than BART. The TAR also gave EPA the discretion to allow a credit for the BART alternative.

 Conclusion and Implications

In the absences of the tribal authority preparing a TIP, the EPA’s FIP will be upheld unless it is clearly “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” If a reasonable basis exists for EPA’s decision and is not plainly erroneous, it will be presumed to be valid. Further, the TIP will not be required to adhere to the stringent timetables of a SIP. A public interest challenge will be even more difficult than non-tribal implementation plans. The court’s decision is accessible online at: http://cases.justia.com/federal/appellate-courts/ca9/14-73100/14-73100-2017-03-20.pdf?ts=1490029313

(Danielle Sakai, Albert J. Maldonado)