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INTRODUCTIONIn 1999, the U.S. Environmental Protection Agency
(EPA) pro-mulgated the Regional Haze Rule1 pursuant to Section
169Aof the Clean Air Act (CAA),2 which sets a national goal of
rem-edying visibility impairments in Class I areas resulting
fromman-made air pollution and directs EPA to issue regulationsto
reach that goal. Class I areas include all national
parks,wilderness areas, and memorial parks larger than 5000
acres,
BART Sent Back tothe Drawing BoardBART Sent Back tothe Drawing
BoardA Summary of theDC Circuit’s Opinion onthe Regional Haze
Rule
by Debra J. Jezouit and Joshua B. Frank
In May, the DC Circuit Court of Appeals handed
down a decision vacating a portion of the Regional
Haze Rule. The court determined that the portion of
the rule dealing with Best Available Retrofit
Technology (BART) contravened the language of the
Clean Air Act and did not give enough discretion to
the states in applying it. However, EPA’s natural
visibility and no degradation goals, and its reasonable
progress criteria, were upheld and found not to be
arbitrary and capricious. This article provides a
summary of the DC Circuit’s opinion.
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and national parks larger than 6000 acres thatwere in existence
on August 7, 1977. Pursuant tothe statutory directive, the Regional
Haze Rulerequires each state to develop a strategy for achiev-ing
EPA’s visibility goals, which include improv-ing visibility on the
20% most-impaired days,ensuring that there is no degradation in
visibilityduring the 20% clearest days, and determiningthe annual
rate of visibility improvement thatwould lead to “natural
visibility” conditionswithin 60 years after the states develop
regionalhaze control plans (i.e., by 2064). The rule fur-ther
requires identification of all major station-ary sources subject to
Best Available RetrofitTechnology (BART) requirements based on
thecollective benefits to visibility in Class I areasof controlling
those sources.
On May 24, 2002, a three-judge panel of theU.S. Court of Appeals
for the District of Colum-bia Circuit (DC Circuit) issued an
opinion in theappeal of the Regional Haze Rule, in part vacat-ing
the rule and in part upholding it.3 The courtdetermined that the
portion of the rule dealingwith BART contravened the language of
the CAAand did not give enough discretion to the statesin applying
it. However, EPA’s regional haze goalsset forth in the rule—natural
visibility and no deg-radation—and the agency’s reasonable
progresscriteria were upheld and found not to be arbi-trary and
capricious. In addition to the Ameri-can Corn Growers Association,
which was namedin the suit, other industry petitioners
includedgroups representing coal companies, railroads,and
coal-fired electric generators. The environ-mental group Sierra
Club also petitioned for re-view of the rule, regarding EPA’s
“reasonableprogress” criteria, and interveners included thestates
of Maine, New Hampshire, Vermont, andMichigan, and Native American
tribes. While in-dustry petitioners and the state of Michigan
ar-gued against the rule because it would force theinstallation of
expensive pollution control equip-ment, all other parties,
including the states, ar-gued that the rule is an effective and
cost-efficient
method of controlling regional haze.
SUMMARY OF REGIONAL HAZE DECISIONThe issues addressed by the
court in this proceeding included(1) whether EPA acted contrary to
law in establishing a grouprather than a source-by-source approach
to BART determina-tions; (2) whether EPA acted without legal
authority and in anarbitrary and capricious manner by promulgating
the “natural
visibility goal” and “no degradation requirement”; and
(3)whether EPA failed to set reasonable criteria for measuring
orassuring “reasonable progress,” and whether the agency
actedcontrary to law in extending the statutory deadline for
sub-mission of the state regional haze control plans.
First, the court concluded that the rule’s BART provisionsare
contrary to the text, structure, and history of the CAA be-cause
they unduly constrain the authority delegated to the statesby the
CAA. According to the court, requiring states to installBART
without empirical evidence that the technology will im-prove
visibility conditions in Class I areas, and not allowingstates to
make exceptions, impermissibly constrains the states’broad role in
the State Implementation Plan (SIP) process.Accordingly, the court
vacated and remanded on the issue ofthe rule’s “group BART”
approach and its infringement on states’authority under the CAA.
Second, the court held that EPA’spromulgation of a “national
visibility goal” and a “no degrada-tion requirement” is within its
discretion and is a consistentand reasonable interpretation of the
CAA. Third, the courtdeclined to rule on whether EPA had gone far
enough to meetits statutory responsibilities, and whether it
contravened theCAA by allowing three years instead of one year to
file regionalhaze SIPs. Both issues were considered premature
because EPAcould change its position on remand of the BART
issue.
“Group BART”Section 169A of the CAA requires states to determine
whichBART-eligible sources (i.e., certain major stationary sources
builtbetween August 1962 and August 1977) contribute to
visibilityimpairment in Class I areas. To make this evaluation,
statesmust consider (1) the cost of compliance; (2) the energy
andnon-air quality environmental impacts of compliance; (3)
anyexisting pollution control technology in use at the source;
(4)the remaining useful life of the source; and (5) the degree
ofimprovement in visibility that may be reasonably anticipatedto
result from the use of such technology. EPA’s Regional HazeRule
requires states to address the first four criteria on an
indi-vidual basis, but the fifth criteria on a group basis. The
rulerequires states to “find that a BART-eligible source is
‘reason-ably anticipated to cause or contribute’ to regional haze
if itcan be shown that the source emits pollution within a
geo-graphic area from which pollutants can be emitted and
trans-ported downwind to a Class I area.”4 The rule further
requiresstates to assess the degree of visibility improvement on
thebasis of emission reductions achievable from all sources in
theregion of the Class I area. Industry petitioners argued that
thearea-wide treatment of the fifth criteria (i.e., “group BART”)
iscontrary to the language, statutory structure, and
legislativehistory of Section 169A of the CAA and unlawfully
constrainsthe states by requiring BART controls at sources without
anyempirical evidence of the particular source’s contribution
tovisibility impairment in a Class I area.
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Despite EPA’s arguments that its bifurcation of the fivefact-
ors should be upheld because the CAA was unclear,the court agreed
with the industry petitioners that treatingthe fifth factor
differently than the other four was contraryto the text, structure,
and legislative intent of the CAA. Ac-cording to the court, all
five factors work together to helpthe states determine what
technology is required at an in-dividual source. The court stated
that this is evident fromthe states’ duty, under the CAA, to
calculate the cost of com-pliance to determine the level of
pollution control equip-ment required at an individual source. The
court stated thatthe only way for states to determine whether the
costs areappropriate is to compare the costs to the individual
sourcewith the degree of visibility improvement from
installingcontrols at that source. The court found that EPA’s
groupBART approach could result in a source spending millionsof
dollars on new technology that would have no appre-ciable effect on
the regional haze in any Class I area.
Furthermore, the court heldthat because it is the states’
re-sponsibility under the CAA, andnot EPA’s, to determine
whichsources should be required to in-stall BART, the Regional
HazeRule unlawfully constrains thestates’ authority. Because the
rulerequires BART controls based simply on a finding that a
sourcecould affect a Class I area, the states have essentially no
say asto which sources should be regulated with which
technology.The court reinforced its position by citing the
ConferenceReport on the 1977 amendments to the CAA, which makes
itclear that the states, and not EPA, would make BART
determi-nations.5 The court did note, however, that if a
mechanismexisted by which a state could exempt a BART-eligible
sourceon the basis of an individual determination, then it was
pos-sible that the meaning of the CAA would not be violated.Under
the rule’s current construction, exemptions may onlybe obtained
through EPA. Accordingly, the court vacated theBART provisions in
the rule.
“Natural Visibility” and “No Degradation”Industry provided four
arguments in support of its claim thatthe natural visibility goal
and no degradation requirement arearbitrary and capricious: (1) EPA
exceeded its authority underSection 169A(a)(1) and adopted
regulations that conflict withthe prevention of significant
deterioration (PSD) program inestablishing “natural visibility” as
the goal of the regional hazeprogram; (2) the regulations
impermissibly constrain states’discretion by requiring that the
states develop their visibilityprograms using the “no degradation”
requirement; (3) EPAhas no authority to impose upon the states the
goal of achiev-ing natural visibility conditions and, thereby,
restrict the
opportunity of some states to participate in the planning
pro-cess aimed at addressing regional haze; and (4) EPA
promul-gated the Regional Haze Rule without providing
adequatenotice and an opportunity for comment. The court
rejectedEPA’s argument that these contentions were not properly
raised,however, the court also rejected industry’s claims on the
rule’smerits, holding that the EPA action was neither
manifestlycontrary to the statute nor arbitrary or capricious in
substance.
First, according to the court, the regulations adoptedby EPA in
the rule are not contrary to the PSD program,despite that program’s
allowance for small amounts ofdegradation. The CAA creates a
national goal of remedy-ing visibility impairment. The regional
haze regulationsexpound on that by providing for an improvement in
vis-ibility for the most-impaired days and ensuring no degra-dation
in visibility. The court decided that the regulationsand the
statute are not contradictory, but merely that theregional haze
regulations expound on the CAA. Further-
more, according to thecourt, the PSD programdoes not create an
entitle-ment to degrade visibility.
Second, industry ar-gued that because statesmust determine the
“rea-sonable progress” sources
should make in enhancing visibility, and that reasonableprogress
could sometimes require visibility degradation, theno degradation
requirement restricts states’ authority toapply the statutory
criteria. The court found this to be in-correct because the rule
merely elucidates on the definitionof “reasonable progress,” which
does not include the possi-bility of visibility degradation.
Third, the court found no evidence to support the claimthat the
rule restricts the opportunity of states to participatein the
planning aspect of the rule.
Finally, the court found industry’s argument that there wasnot
adequate opportunity for notice and comment was with-out merit.
Industry argued that it had no notice of the naturalvisibility
goal, but the court found that industry had receivedadequate notice
because there was no material inconsistencybetween the statutory
goal of Section 169A(a)(1) and the pro-mulgated regulatory
goal.
“Reasonable Progress”Sierra Club argued that EPA’s regulations
do not qualify as “rea-sonable progress” criteria. However, the
court held that theissue is unripe for review because the BART
issue was remanded,and because EPA could change its criteria for
evaluating rea-sonable progress on remand. Similarly, the court
also foundpremature Sierra Club’s contention that EPA violated the
CAAby allowing three years for states to file regional haze SIPs.
The
As a result of the petitions for review en banc and
potentialappeals to the Supreme Court, and the possibilitythat EPA
will still have to go back to the drawing board,finalization and
implementation of the Regional Haze Rulelikely will be
significantly delayed.
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Transportation and Equity Act for the 21st Century states
that,for areas designated as “attainment” or “unclassified,” EPA
mustrequire SIPs to be submitted one year after the area has
beendesignated.6 However, the Regional Haze Rule allows for
threeyears upon a submission of a commitment SIP. While the
courtraised doubts about the validity of the three-year
requirement,it remanded the issue with the BART provisions. Thus,
thecourt did not reach a decision on the merits of any of
SierraClub’s contentions regarding reasonable progress.
Dissent by Judge GarlandJudge Merrick B. Garland concurred with
parts III and IV of thedecision, regarding the natural visibility
goal and no degrada-tion requirement and the reasonable progress
criteria and exten-sion of the statutory deadline, respectively,
but dissented on theissue of vacating and remanding the BART
requirements. Con-trary to the opinion of the court, he concluded
that the BARTprovisions appropriately adhered to the language of
the CAA.
Judge Garland argued that the rule, which creates a presump-tion
that a source upwind from a Class I area impairs visibility inthat
region, is not unreasonable. Rather than forcing noncon-tributing
sources to adopt expensive technology automatically,it allows for
exceptions to the group BART rule and shifts theburden of proof
onto the emitting party. This, he claimed, is areasonable
construction of the CAA, which requires BART tech-nology if a
source “emits any air pollutant which may reason-ably be
anticipated to cause or contribute to any impairment ofvisibility
in any [Class I] area.”7 Judge Garland further arguedthat the fifth
factor is materially different from the other four, inthat it
addresses the results, and not the cost-effectiveness, of
thetechnology. For this reason, he believed it is reasonable to
deter-mine BART under a group approach, even if a
source-specificstandard is used for the other criteria. In
addition, Judge Garlandfound that the court should not assume that
Congress enacteda statute that makes its stated goals impracticable
to achievewithout specific textual evidence to the contrary.
Finally, Judge Garland claimed that the rule does not in-fringe
states’ rights. While the CAA does require states to deter-mine
which sources can reasonably be anticipated to contributeto any
impairment of visibility, and to consider the five enunci-ated
criteria to determine BART for that source, the RegionalHaze Rule
merely clarified and does not contravene this termi-nology. Judge
Garland pointed out that, under the rule, it is thestate that must
determine both that the source emits coveredpollutants and that the
region into which the source emits mayreasonably be anticipated to
include a Class I area. Furthermore,it is also the state that must
examine the five criteria and deter-mine which technology is most
appropriate for a particularsource. Thus, although Judge Garland
concurred with parts IIIand IV of the court’s opinion, he dissented
from vacating andremanding the BART provisions because he believes
they donot contravene the language, structure, or history of the
CAA.
About the AuthorsDebra J. Jezouit is a partner with the
Environmental Practice Groupin the Washington, DC, office of Baker
Botts L.L.P. She is an experton the Clean Air Act, with more than
11 years of experience on CAAregulatory and litigation matters.
Joshua B. Frank is an associatealso with the Environmental Practice
Group in the Washington, DC,office of Baker Botts. He practices in
the areas of environmentaland energy regulatory law and
litigation.
His dissent may provide EPA with hope of obtaining a
morefavorable decision through a petition for review en banc
orthrough appeal to the U.S. Supreme Court.
CONCLUSIONThe DC Circuit’s May 24th decision left the precepts
of theRegional Haze Rule generally intact, finding that the rule’s
goalswere neither arbitrary nor capricious. However, the court
vacatedand remanded the BART requirements because of their focus
ongroup effects and because of the limitations on state
involve-ment. There was no clear victory for either EPA or
industry. Al-though the court declined to rule on the “reasonable
progress”issues brought by the Sierra Club, finding that they were
prema-ture, the three-year deadline for SIPs may need to be altered
onremand because it likely conflicts with the Transportation
EquityAct for the 21st Century. Both EPA and Sierra Club have
peti-tioned for review en banc. If EPA’s petition is denied, or if
thethree-judge panel’s decision is ultimately affirmed by the full
DCCircuit or the Supreme Court, the group BART approach couldstill
be revived by EPA if it awards more power to the states.
Never-theless, as a result of the petitions for review en banc
andpotential appeals to the Supreme Court, and the possibility
thatEPA will still have to go back to the drawing board,
finalizationand implementation of the Regional Haze Rule likely
will be sig-nificantly delayed. The decision could also jeopardize
thework of groups such as the Western Regional Air Partnership,
acollaborative effort of tribal governments, state governments,
andvarious federal agencies to protect visibility in the West. The
futureof EPA’s BART guidelines, which are intended to assist state
andtribal governments in setting BART limits, is also in question.
Allin all, the court’s decision to vacate EPA’s BART
provisionsleaves the future of the Regional Haze Rule looking a
little hazy.
The text of the DC Circuit’s opinion may be found on
theGeorgetown University Law Center’s Web site at
www.ll.georgetown.edu/Fed-Ct/Circuit/dc/opinions/99-1348a.html.
ACKNOWLEDGMENTSpecial thanks to Stephen S. Smith, Georgetown
UniversityLaw Center, Class of 2004, for his contributions to this
article.
REFERENCES1. 64 Fed. Regist. at 35,714, codified at 40 C.F.R. §§
81.401-81.437.2. 42 U.S.C. § 7491.3. American Corn Growers
Association vs. EPA, 291 F.3d 1 (D.C. Cir. 2002).4. 64 Fed. Regist.
at 35,740.5. See H.R. Conf. Rep. No. 95-564 (1977).6. The
transportation Equity Act for the 21st Century, Pub. L. No.
105-178,
112 Stat. 107, 463 (1998).7. 42 U.S.C. § 7491(b)(2)(A).