Westar Energy, Inc. v. Environmental Protection Agency

608 F. App'x 1
CourtCourt of Appeals for the D.C. Circuit
DecidedMay 26, 2015
DocketNos. 11-1333, 12-1019
StatusPublished
Cited by2 cases

This text of 608 F. App'x 1 (Westar Energy, Inc. v. Environmental Protection Agency) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Westar Energy, Inc. v. Environmental Protection Agency, 608 F. App'x 1 (D.C. Cir. 2015).

Opinion

JUDGMENT

PER CURIAM.

These petitions for review were considered upon the briefs of the parties and the record from the Environmental Protection Agency. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). The Court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. Cir. Rule 36(d). It is

ORDERED AND ADJUDGED that the petitions for review be denied for the reasons stated below.

The State of Kansas, the Kansas City Board of Public Utilities, and Westar Energy, Inc. petition this Court to review EPA’s final action in Approval and Promulgation of Air Quality Implementation Plan; Kansas; Final Disapproval of Interstate Transport State Implementation Plan Revision for the 2006 21-hour PMi h NAAQS, 76 Fed.Reg. 43,143 (July 20, 2011) (“Kansas SIP Disapproval ”). In this final action, EPA disapproved of Kansas’s proposed State Implementation Plan revision for the 2006 PM2.6 (fine particulate matter) national ambient air quality standards. We will deny the petitions for the reasons stated below.

Good neighbor obligations under the Clean Air Act, 42 U.S.C. §§ 7401-7671q, and its implementing regulations require states to place emissions controls on specified pollutants (in this case, nitrogen oxide (NOx) and sulfur dioxide (S02)) that contribute significantly to downwind pollution in other states. Under the Act, EPA promulgates national ambient air quality standards (NAAQS) that are science-based levels of certain pollutants permissible in the ambient air. See 42 U.S.C. §§ 7408-09. States have the initial responsibility to adopt State Implementation Plans (SIP) that are adequate to maintain, and where needed improve, air quality by applicable deadlines. States must revise their SIPs within three years after EPA promulgates new or revised NAAQS. See id. § 7410(a). Once a state submits a SIP, EPA conducts a completeness review. See id. § 7410(k)(l)(B). If EPA determines that a SIP does not meet all of the Clean Air Act’s applicable requirements, it may issue a conditional, partial, or full disapproval. See id. §§ 7410(k)(2)-(4). The Act also requires EPA to promulgate a Federal Implementation Plan (FIP) if EPA finds a state either failed to submit a SIP or [2]*2submitted an inadequate SIP. See id. § 7410(c)(1).

In 2005, EPA promulgated a more comprehensive rule for the interstate transport of pollutants, the Clean Air Interstate Rule (CAIR), which addressed NOx and S02 contributions to nonattainment of certain air quality standards. Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to NOx SIP Call, 70 Fed.Reg. 25,162, 25,171 (May 12, 2005). This Court found CAIR to be insufficiently stringent, but kept it in place as an interim measure. North Carolina v. EPA, 531 F.3d 896, 929-30 (D.C.Cir.2008); North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C.Cir.2008) (per curiam). In response, EPA promulgated the Cross-State Air Pollution Rule (also known as the “Transport Rule”). Federal Implementation Plans; Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals, 76 Fed.Reg. 48,208 (Aug. 8, 2011). The Transport Rule identifies states with emissions that significantly contribute to nonat-tainment or interference with maintenance of NAAQS in downwind states, establishes trading programs with emissions budgets for covered power plant electric generating units (EGUs), promulgates FIPs that allocate emissions allowances among those EGUs, and imposes other requirements to achieve necessary reductions. See id. at 48,208.

Upon petition by several states and utilities, this Court vacated and remanded the Transport Rule. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C.Cir.2012). The Court held that the Transport Rule exceeded EPA’s authority under the Clean Air Act’s good neighbor provision by overemphasizing cost in allocating responsibility among upwind contributors, id. at 19-28, and that EPA lacked statutory authority to promulgate FIPs without first giving the states an opportunity to issue SIPs implementing the required emissions reductions, id. at 28-37. The Supreme Court reversed and remanded. EPA v. EME Homer City Generation, L.P., — U.S. -, 134 S.Ct. 1584, 188 L.Ed.2d 775 (2014). The Supreme Court held that the Clean Air Act does not require EPA to give states that missed the deadline or submitted inadequate good neighbor SIPs a second opportunity to submit SIPs after EPA has quantified their good neighbor obligations. Id. at 1609-10. The Court also held that “nothing in the statute places EPA under an obligation to provide specific metrics to States before they undertake to fulfill their good neighbor obligations” and submit a SIP. Id. at 1601. The Court further held that EPA’s use of cost-effectiveness in determining states’ obligations “is a permissible, workable, and equitable interpretation of the Good Neighbor Provision.” Id. at 1610.

In March 2011, EPA proposed to disapprove Kansas’s good neighbor SIP. Ap[3]*3proval and Promulgation of Air Quality Implementation Plan; Kansas; Proposed Disapproval of Interstate Transport State Implementation Plan Revision for the 2006 24-Hour PM2,5 NAAQS, 76 Fed.Reg. 14,831 (Mar. 18, 2011). EPA determined that Kansas’s submission lacked the required technical analysis evaluating whether the projected emissions reductions under the Regional Haze program would prevent Kansas from contributing to non-attainment and maintenance problems in downwind states. EPA also noted that, contrary to Kansas’s assertions regarding its projected emissions reductions, EPA’s “preliminary photochemical modeling for the proposed Transport Rule ... indicates that the emissions from the State of Kansas significantly contribute to nonattainment and interfere with maintenance in other States.” Id. at 14,838.

In July 2011, EPA took final action and disapproved of Kansas’s proposed SIP revision. Kansas SIP Disapproval, 76 Fed.Reg. at 43,143. For the reasons stated below, we will deny the petitions to review this final agency action.

The standard of review in this case is provided by the Administrative Procedure Act, 5 U.S.C.

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608 F. App'x 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westar-energy-inc-v-environmental-protection-agency-cadc-2015.