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National Parks Conservation Association v. McCarthy

United States Court of Appeals, Eighth Circuit

March 14, 2016

National Parks Conservation Association; Voyageurs National Park Association; Friends of the Boundary Waters Wilderness; Sierra Club; Minnesota Center for Environmental Advocacy; Fresh Energy, Petitioners
v.
Gina McCarthy, Administrator, United States Environmental Protection Agency; United States Environmental Protection Agency, Respondents

Submitted September 23, 2015.

Petition for Review of an Order of the Environmental Protection Administration.

For National Parks Conservation Association, Voyageurs National Park Association, Friends of the Boundary Waters Wilderness, Sierra Club, Petitioners (12-2910, 12-3481): Janette K. Brimmer, Earthjustice, Seattle, WA; Matthew Evan Gerhart, Sierra Club, Seattle, WA.

For Minnesota Center for Environmental Advocacy, Fresh Energy, Petitioners (12-2910, 12-3481): Kevin Reuther, Minnesota Center For Environmental Advocacy, Saint Paul, MN.

For Gina McCarthy, Administrator, United States Environmental Protection Agency, United States Environmental Protection Agency, Respondents (12-2910, 12-3481): David Aiken Carson, Senior Counsel, U.S. Department of Justice, Environmental Defense Section, Denver, CO; Bertram C. Frey, U.S. Environmental Protection Agency, Region 5, Chicago, IL; Lisa P. Jackson, U.S. Environmental Protection Agency, Administrator, Washington, DC; Angeline Purdy, Trial Attorney, U.S. Department of Justice, Environment & Natural Resources Division, Environmental Enforcement Section, Washington, DC; Norman Louis Rave Jr., U.S. Department of Justice, Environmental Enforcement Division, Washington, DC.

Before RILEY, Chief Judge, BYE and BENTON, Circuit Judges. BYE, Circuit Judge, concurring in the result.

OPINION

BENTON, Circuit Judge.

On June 12, 2012, EPA approved the Minnesota Regional Haze State Implementation Plan. Six conservation organizations[1] petition for review of the Plan. Having jurisdiction under 42 U.S.C. § 7607(b)(1), this court denies the petition.

I.

A.

A national goal is natural visibility in " mandatory class I Federal areas." 42 U.S.C. § 7491(a)(1). States must revise their environmental plans to include " measures as may be necessary" for reasonable progress toward the national goal. § 7491(b)(2). Some major stationary facilities that emit " any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in [class I Federal areas]" must install and operate the best available retrofit technology (" BART" ). § 7491(b)(2)(A).

BART is " an emission limitation based on the degree of reduction achievable through the application of the best system of continuous emission reduction for each pollutant which is emitted by an existing stationary facility." 40 C.F.R. § 51.301. When implementing BART, the state must consider five statutory factors: " the costs of compliance, the energy and nonair quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of improvement in visibility" from BART. 42 U.S.C. § 7491(g)(2).

In 1999, EPA offered an alternative to BART if " the State demonstrates that an emissions trading program or other alternative will achieve greater reasonable progress toward natural visibility conditions." Regional Haze Regulations, 64 Fed.Reg. 35,714, 35,767 (July 1, 1999). See also 40 C.F.R. § 51.308(e)(2). For BART alternatives, a state must submit a " demonstration that the emissions trading program or other alternative measure will achieve greater reasonable progress than would have resulted from the installation and operation of BART at all sources subject to BART in the State." § 51.308(e)(2)(i). The demonstration includes several steps. § 51.308(e)(2)(i)(A)-(E). A state may satisfy the final step of the demonstration by meeting two criteria: " (i) Visibility does not decline in any Class I area, and (ii) There is an overall improvement in visibility, determined by comparing the average differences between BART and the alternative over all affected Class I areas." § 51.308(e)(3) (emphasis added).

On June 7, 2012, EPA determined that the Transport Rule--also known as the Cross-State Air Pollution Rule (" CSAPR" )--is " better than BART." Regional Haze: Alternatives to Source-Specific Best Available Retrofit Technology (BART) Determinations, 77 Fed.Reg. 33,642, 33,648 (June 7, 2012) (Better than BART Rule). According to EPA, the Transport Rule achieves " greater reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas than source-specific Best Available Retrofit Technology (BART) in those states covered by the Transport Rule." Id. at 33,643. States subject to the Transport Rule may use its emissions-trading program instead of source-specific BART. 40 C.F.R. ยง ...


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