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1. Central Ariz. Water Conservation Dist. v. United States EPA, 990 F.2d 1531

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Ann Lyons
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Central Ariz. Water Conservation Dist. v. United States EPA

United States Court of Appeals for the Ninth Circuit

January 13, 1993, Argued, Submitted, San Francisco, California ; March 25, 1993, Filed

No. 91-70731

Reporter: 990 F.2d 1531; 1993 U.S. App. LEXIS 5881; 36 ERC (BNA) 1177; 93 Cal. Daily Op.

Service 2159; 93 Daily Journal DAR 3793; 23 ELR 20678

CENTRAL ARIZONA WATER

CONSERVATION DISTRICT,

CENTRALARIZONA IRRIGATION AND

DRAINAGE DISTRICT,

MARICOPA-STANFIELD IRRIGATION &

DRAINAGE DISTRICT, NEW MAGMA

IRRIGATION & DRAINAGE DISTRICT,

AND HARQUAHALA VALLEY IRRIGATION

DISTRICT, Petitioners, v. UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent, SALT RIVER PROJECT AND

POWER DISTRICT, GRAND CANYON

TRUST, AND THE WILDERNESS SOCIETY,

Respondents-Intervenors.

Prior History: [**1] Appeal from the United

States Environmental Protection Agency.

Core Terms

visibility, impairment, final rule, canyon,

emission, haze, progress, promulgate, estimate,

regional, air, winter, defer, economic injury,

revise, phase, scientific, visual, arbitrary and

capricious, administrative record, relevant

factors, capriciously, deferential,

implementation plan, judicial review,

rulemaking, expertise, traceable, arbitrarily,

reconsider

Case Summary

Procedural Posture

Petitioner waterdistricts challenged a Final Rule

from respondent U.S. Environmental Protection

Agency, requiring reductions in sulfur dioxide

emissions at a generating station to improve

winter average visibility in a national park.

Petitioners contended that respondent exceeded

the scope of its regulatory authority, and that the

Final Rule constituted arbitrary and capricious

agency action.

Overview

Respondent U.S. Environmental Protection

Agency issued a Final Rule which required a 90

percent reduction in sulfur dioxide emissions at a

generating station in order to improve winter

average visibility in the Grand Canyon National

Park. Petitioner waterdistricts argued that (1)

because the Final Rule sought to regulate

regional haze when respondent had yet to

promulgate Phase II implementing regulations

addressing regional haze, respondent exceeded

the scope of its regulatory authority by issuing

the rule, and (2) the rule constituted arbitrary and

capricious agency action. The court concluded

that the rule was legitimately promulgated under

Phase I regulations directed at reasonably

attributable visibility impairment. Even if the

rule addressed only a small fraction of the

visibility impairment at the Grand Canyon,

respondent still had the statutory authority to

address that portion of the visibility impairment

problem which was, in fact, reasonably

attributable to the generating station.

Respondent acted within its statutory and

regulatory authority when it promulgated the

rule, and had not acted arbitrarily and

capriciously. The court denied review.

Outcome

Ann Lyons
The court denied petitioner waterdistricts’

petition for review of and motion to supplement

the administrative record. Respondent U.S.

Environmental Protection Agency acted within

its statutory and regulatory authority when it

promulgated the rule, and had not acted

arbitrarily and capriciously. Its interpretation of

the evidence and weighing of the relevant factors

were reasonable, and the rule was the product of

reasoned decisionmaking.

LexisNexis® Headnotes

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > State

Implementation Plans

HN1 See 40 C.F.R. § 51.301(c).

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > State

Implementation Plans

HN2 The regulations define the term ′′visibility

impairment′′ as any humanly perceptible change

in visibility (visual range, contrast, coloration)

from that which would have existed under

natural conditions. 40 C.F.R. § 51.301(x). The

term ′′reasonably attributable′′ is defined as

attributable by visual observation or any other

technique the state deems appropriate. 40 C.F.R.

§ 51.301(s). The states, or Environmental

Protection Agency under § 7910(c), thus have

broad discretion in determining how and

whether impairment may be attributed to an

individual source.

Civil Procedure > Preliminary Considerations >

Justiciability > General Overview

Constitutional Law > ... > Case or Controversy >

Standing > General Overview

HN3 The three elements of the irreducible

constitutional minimum of standing are: First,

the plaintiff must have suffered an injury in fact,

an invasion of a legally-protected interest which

is (a) concrete and particularized, and (b) actual

or imminent, not conjectural or hypothetical.

Second, there must be a causal connection

between the injury and the conduct complained

of, the injury has to be fairly traceable to the

challenged action of the defendant, and not the

result of the independent action of some third

party not before the court. Third, it must be

likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.

Civil Procedure > ... > Justiciability > Standing > Injury

in Fact

Constitutional Law > ... > Case or Controversy >

Standing > General Overview

HN4 Pecuniary injury is clearly a sufficient

basis for standing. But while pecuniary or

economic injury is generally a legally protected

interest, the injury in fact test requires that the

party seeking review be himself among the

injured. That party’s injury must be (a) concrete

and particularized, and (b) actual or imminent,

and not conjectural or hypothetical.

Environmental Law > Air Quality > Enforcement >

Administrative Proceedings

Environmental Law > Administrative Proceedings &

Litigation > Judicial Review

HN5 See 42 U.S.C.S. §§ 7607(d)(9)(A), (C)-(D).

Environmental Law > Air Quality > Enforcement >

Administrative Proceedings

Environmental Law > Administrative Proceedings &

Litigation > Judicial Review

HN6 See 42 U.S.C.S. § 7607(d)(7)(B).

Environmental Law > Air Quality > Enforcement >

Administrative Proceedings

Environmental Law > Administrative Proceedings &

Litigation > Judicial Review

HN7 See 42 U.S.C.S. § 7607(d)(8).

Administrative Law > Judicial Review > Standards of

Review > General Overview

Environmental Law > Administrative Proceedings &

Litigation > Judicial Review

HN8 A reviewing court must generally be at its

most deferential when the agency is making

predictions, within its area of special expertise,

at the frontiers of science. In such situations, the

court is to defer to the agency’s interpretation of

equivocal evidence, so long as it is reasonable.

Page 2 of 16

990 F.2d 1531, *1531; 1993 U.S. App. LEXIS 5881, **1

Ann Lyons
Administrative Law > Agency Rulemaking > General

Overview

Administrative Law > Judicial Review > Standards of

Review > General Overview

HN9 While the court should not defer to the

agency where it simply has not exercised its

expertise, courts are extremely deferential to

administrative agencies in cases involving

technical rulemaking decisions.

Environmental Law > Air Quality > National Ambient

Air Quality Standards

Environmental Law > Air Quality > State

Implementation Plans

Environmental Law > Administrative Proceedings &

Litigation > Judicial Review

HN10 Acting in place of the State of Arizona

pursuant to a federal implementation plan under

42 U.S.C.S. § 7410(c), the Environmental

Protection Agency (EPA) stands in the shoes of

the defaulting State, and all of the rights and

duties that would otherwise fall to the State

accrue instead to EPA. 54 Fed. Reg. at 36,952.

EPA is therefore granted broad discretion in

determining whether visibility impairment is

reasonably attributable to a given source. 40

C.F.R. § 51.301(s) defines ′′reasonably

attributable′′ as attributable by visual

observation or any other technique the State

deems appropriate.

Environmental Law > Administrative Proceedings &

Litigation > Judicial Review

HN11 In reviewing whether the Environmental

Protection Agency’s action in promulgating a

Final Rule is arbitrary and capricious, the court

is not to substitute its judgment for that of the

agency. Instead, the court inquires whether the

agency has examined the relevant data and

articulated a satisfactory explanation for its

action, including a rational connection between

the facts found and the choice made. The court’s

review is limited to whether the agency

considered the relevant factors and whether there

has been a clear error of judgment.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

HN12 See 42 U.S.C.S. § 7491(g)(1).

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

Environmental Law > Air Quality > State

Implementation Plans

Environmental Law > Hazardous Wastes & Toxic

Substances > CERCLA & Superfund > Recordkeeping

& Reporting

HN13 Generally, the Clean Air Act and its

regulations require the application of Best

Available Retrofit Technology once it has been

determined that visibility impairment is

reasonably attributable to an existing source. 42

U.S.C.S. § 7491(b)(2); 40 C.F.R. §

51.302(c)(4)(i).

Counsel: Marvin S. Cohen, Sacks, Tierney &

Kasen, Phoenix, Arizona, for the petitioners.

Scott A. Schachter, United States Department of

Justice, Washington, D.C., for the respondent.

Patrick M. Raher, Hogan & Hartson,

Washington, D.C., for the

respondents-intervenors.

Beryl I. Dulsky, Assistant Attorney General,

Phoenix, Arizona, for the amicus.

Judges: Before: Ruggero J. Aldisert, * Alfred T.

Goodwin, and Betty B. Fletcher, Circuit

Judges.Opinion by Judge Goodwin.

Opinion by: GOODWIN

Opinion

[*1533] OPINION

GOODWIN, Circuit Judge:

Petitioners CentralArizonaWater Conservation

District (′′CAWCD′′) and four irrigation

* Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for the Third Circuit, sitting by designation.

Page 3 of 16

990 F.2d 1531, *1531; 1993 U.S. App. LEXIS 5881, **1

Ann Lyons
districts1

(collectively ′′Petitioners′′ or the

′′Districts′′) challenge an Environmental

Protection Agency (′′EPA′′) Final Rule which

requires a 90% reduction in sulfur dioxide (SO2)

emissions at the Navajo Generating Station

(′′NGS′′) in order to improve winter average

visibility in the Grand Canyon National Park

(′′Grand Canyon′′).

[**2] Petitioners argue (1) that, because the

Final Rule seeks to regulate ′′regional haze′′

when EPA has yet to promulgate Phase II

implementing regulations addressing regional

haze, EPA exceeded the scope of its regulatory

authority by issuing the Final Rule, and (2) that

the Final Rule constitutes arbitrary and

capricious agency action. In addition to

responding to Petitioners’ substantive criticisms,

EPA asserts that Petitioners lack standing to

bring this challenge.

The Final Rule was issued by EPA under 42

U.S.C. §§ 7410(c)(1), 7491, and is directly

appealable to this court under 42 U.S.C. §

7607(b)(1). Petitioners do have standing to bring

this challenge. We hold, however, that EPA acted

within its statutory and regulatory authority

when it promulgated the Final Rule, and that

EPA has not acted arbitrarily and capriciously.

I. BACKGROUND

This case involves regulations promulgated by

EPA in an attempt to remedy, at least partially,

visibility impairment at the Grand Canyon. In a

final rule entitled ′′Approval and Promulgation

of Implementation Plans: Revision of the

Visibility FIP for Arizona,′′ 56 Fed. Reg. 50,172

(1991) [**3] (codified at 40 C.F.R. § 52) (′′Final

Rule′′), EPA required a 90% reduction in SO2

emissions at NGS, a power plant situated

approximately twelve miles from the Grand

Canyon, near Page, Arizona. The Final Rule

limits SO2 emissions from NGS to 0.10 pound

per million British thermal units (lb/MMBtu),

with an estimated 7% winter average visibility

improvement in the Grand Canyon. The

estimated cost of the improvement, following an

initial capital cost estimated at $ 430 million, is

$ 89.6 million per year.

The Salt River Project (′′SRP′′), a

respondent-intervenor in this case, 2

is the

operating agent of NGS. NGS is jointly owned

by SRP, the U.S. Department of Interior, Bureau

of Reclamation (′′BOR′′), Los Angeles

Department of Water and Power, Arizona Public

Service Co., Nevada Power Co. and Tucson Gas

& Electric Co. 3

Petitioners [*1534] are

waterdistricts that obtain electricity to pump

their water primarily from NGS. They

acknowledge that they are not owners of NGS,

but nonetheless claim an economic interest in the

Final Rule. CAWCD claims that it will be

required, due to its contractual relationship with

the BOR, to repay the major portion of the

BOR’s 24.3% share of the costs of installing

[**4] and maintaining the emission controls

required by the Final Rule.

A. Regulatory Framework

1. The Clean Air Act, Visibility Impairment, and

the Grand Canyon

In 1977, Congress substantially amended the

Clean Air Act (the ′′Act′′). Included in the 1977

amendments was section 169A, 42 U.S.C. §

7491, which declared ′′as a national goal the

prevention of any future, and the remedying of

any existing, impairment of visibility in

mandatory class I Federal areas which

impairment results from manmade air pollution.′′

[**5] 42 U.S.C. § 7491(a)(1). Congress required

1 CentralArizona Irrigation and Drainage District, Maricopa-Stanfield Irrigation & Drainage District, New Magma Irrigation &

Drainage District, and Harquahala Valley Irrigation District.

2

It is noteworthy that SRP and the other joint-owners are the parties directly aggrieved by the Final Rule, yet they do not

participate in Petitioners’ challenge. In fact, SRP argues in support of the Final Rule as a respondent-intervenor.

3

The joint-owners’ percentages of participation is as follows: BOR, 24.3%; SRP, 21.7%; Los Angeles Department of Water

and Power, 21.2%; Arizona Public Service Co., 14%; Nevada Power Co., 11.3%; Tucson Gas & Electric Co., 7.5%.

Page 4 of 16

990 F.2d 1531, *1533; 1993 U.S. App. LEXIS 5881, **1

Ann Lyons
EPA to promulgate regulations to assure

′′reasonable progress toward meeting this

national goal.′′ 42 U.S.C. § 7491(a)(4). EPA was

further directed to require each state with a class

I Federal area to revise its state implementation

plan (′′SIP′′) ′′to contain such emission limits,

schedules of compliance and other measures as

may be necessary to make reasonable progress

toward meeting the national goal.′′ 42 U.S.C. §

7491(b)(2). Measures for achieving ′′reasonable

progress′′ generally include best available

retrofit technology (′′BART′′)

4

and a long-term

strategy. 42 U.S.C. §§ 7491(b)(2)(A), (B). If an

individual state fails to fulfill its obligations

under the Act, EPA is directed to take such

measures as are required to achieve ′′reasonable

progress′′ pursuant to a federal implementation

plan (′′FIP′′) under section 110(c) of the Act. 42

U.S.C. § 7410(c)(1).

[**6] The Act defines class I Federal areas as

international parks, national wilderness areas or

memorial parks which exceed 5,000 acres in

size, and national parks which exceed 6,000

acres in size. 42 U.S.C. § 7472(a). The Grand

Canyon has been classified as a class I Federal

area. See44 Fed. Reg. 69,122 (1979). Congress

recorded its concern with the visibility

impairment at the Grand Canyon caused by

NGS. See H.R. Rep. No. 294, 95th Cong., 1st

Sess. 203-04 (1977).

2. EPA’s 1980 Regulations

In 1980, EPA promulgated visibility regulations

under section 169A of the Act. 45 Fed. Reg.

80,084 (1980) (codified at 40 C.F.R. §§

51.300-.307). The regulations adopted a ′′phased

approach to visibility protection.′′ Id. at 80,085.

Phase I was directed at controlling visibility

impairment ′′that can be traced to a single

existing stationary facility or small group of

existing stationary facilities.′′ Id. EPA refers to

this type of impairment as ′′reasonably

attributable′′ impairment. 45 Fed. Reg. 34,762,

34,779 (1980) (codified at 40 C.F.R. [**7] §

51). EPA deferred addressing other types of

impairment such as ′′regional haze′′ for future

phases due to the heightened complexity and the

scientific and technical limitations inherent in

attempts to identify, measure, and control such

broadscale visibility impairment. See45 Fed.

Reg. at 80,086; see also id. at 80,085 (defining

regional haze as ′′widespread, regionally

homogeneous haze from a multitude of sources

which impairs visibility in every direction over a

large area′′).

[*1535] Generally, EPA’s ′′Phase I′′ regulations

require affected states to coordinate the

development of SIPs with the appropriate

Federal land managers, to develop programs to

assess and remedy visibility impairment from

new and existing sources, and to develop a

long-term strategy to assure reasonable progress

toward section 169A’s national visibility goal.

See40 C.F.R. §§ 51.300-.307. The regulations

specifically require states to identify those

existing sources ′′which may reasonably be

anticipated to cause or contribute′′ to any

visibility impairment which is ′′reasonably

attributable to that existing stationary facility.′′

40 C.F.R. § 51.302(c)(4)(i). [**8] Once the

source is identified, the affected state is required

to take such measures as are required to attain

′′reasonable progress′′; such measures generally

include determination of emissions limitations

for that source under BART and the

development of a long-term strategy. 40 C.F.R.

§§ 51.302(c)(1), (2).

4

The regulations provide the following definition of BART:

HN1 Best Available Retrofit Technology (BART) means 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. The emission limitation must be established, on a case-by-case basis, taking into consideration the technology

available, the costs of compliance, the energy and nonair quality environmental impacts of compliance, any pollution control

equipment in use or in existence at the source, the remaining useful life of the source, and the degree of improvement in

visibility which may reasonably be anticipated to result from the use of such technology.

40 C.F.R. § 51.301(c).

Page 5 of 16

990 F.2d 1531, *1534; 1993 U.S. App. LEXIS 5881, **5

Ann Lyons
HN2 The regulations define the term ′′visibility

impairment′′ as ′′any humanly perceptible

change in visibility (visual range, contrast,

coloration) from that which would have existed

under natural conditions.′′ 40 C.F.R. § 51.301(x).

The term ′′reasonably attributable′′ is defined as

′′attributable by visual observation or any other

technique the State deems appropriate.′′ 40

C.F.R. § 51.301(s). The states, or EPA under §

7910(c), thus have broad discretion in

determining how and whether impairment may

be attributed to an individual source. See45 Fed.

Reg. at 80,094, 80,085.

B. Prior Proceedings and the Rulemaking

History

In its implementation of Phase I, EPA required

all states containing class I Federal areas to

submit revised visibility SIPs within a

nine-month period. Arizona was one of

thirty-five states failing to submit a revised SIP

to EPA. In [**9] 1982, the Environmental

Defense Fund and other environmental groups

brought a citizen suit against EPA to compel

performance of the agency’s nondiscretionary

duty under 42 U.S.C. § 7410(c)(1)(A) to

promulgate visibility FIPs when states fail to

submit SIPs pursuant to the 1980 regulations.

See EDF v. Reilly, No. C82-6850-RPA (N.D.

Cal. Apr. 20, 1984). The parties reached a

settlement agreement which the court approved

in an April 20, 1984 consent decree. This

consent decree required EPA to review existing

SIPs for deficiencies and allow states to cure

those deficiencies. If states remained deficient,

the consent decree required EPA to issue

visibility FIPs.

The Department of Interior subsequently

certified the existence of visibility impairment in

all class I Federal areas, and specifically

declared NGS as a probable source of

impairment at the Grand Canyon. Following this

certification, the National Park Service (′′Park

Service′′) conducted the Winter Haze Intensive

Tracer Experiment (′′WHITEX′′), a winter

visibility attribution study. In part, WHITEX

involved the release from NGS of a unique

′′tracer′′ gas, CD4 ; because CD4 is not found in

the [**10] ambient air, its use ′′fingerprinted′′

NGS emissions when detected downwind.

In November 1987, EPA disapproved the SIPs of

twenty-nine states, including Arizona, for failing

to comply with the visibility regulations. See52

Fed. Reg. 45,132, 45,133 (1987) (codified at 40

C.F.R. §§ 52, 81). Over the next few years, EPA

further investigated visibility impairment at

Grand Canyon and other class I Federal areas.

While acting on many of the areas, EPA delayed

action on the Grand Canyon to allow the Park

Service time to analyze the data obtained from

the WHITEX study. The Park Service issued an

April 1989 draft report which attributed to NGS

70% of the sulfates in the Grand Canyon during

the WHITEX experiment period. See William

Malm et al., National Park Service Report on the

Winter Haze Intensive Tracer Experiment, Draft

Final Report (Apr. 7, 1989).

Relying on the Park Service’s April 1989 draft

report, EPA preliminarily attributed to NGS

several episodes of wintertime visibility

impairment at the Grand Canyon. See54 Fed.

Reg. 36,948, 36,951 (1989) (codified at 40

C.F.R. § 52). EPA solicited public comment on

the merits of [**11] its preliminary attribution

finding, and began the informal rulemaking

process to determine [*1536] the appropriate

action to be taken. Id. In December 1989, the

Park Service issued its final report on WHITEX.

See William Malm et al., National Park Service

Report on the Winter Haze Intensive Tracer

Experiment, Final Report (Dec. 4, 1989).

SRP and others, including Petitioners, submitted

comments severely criticizing the analyses,

methodologies, and conclusions of the Park

Service’s reports. In response to the concerns

raised about the Park Service’s analysis of the

WHITEX data, the National Research Council

of the National Academy of Sciences (′′NAS′′)

was asked to evaluate the Park Service’s

WHITEX report and the other scientific

evidence relevant to EPA’s preliminary

Page 6 of 16

990 F.2d 1531, *1535; 1993 U.S. App. LEXIS 5881, **8

Ann Lyons
attribution. In its October 1990 report, the NAS

confirmed that ′′at some times during the study

period, NGS contributed significantly to haze′′ in

the Grand Canyon. National Research Council,

Haze in the Grand Canyon: An Evaluation of the

Winter Haze Intensive Tracer Experiment 3, 37

(1990) [hereinafter Haze in the Grand Canyon].

NAS cautioned, however, that ′′aspects of the

WHITEX data analysis preclude a quantitative

[**12] determination of the exact fraction of

the Grand Canyon haze problem that is

attributable to NGS. These aspects are primarily

related to problems with implementation and

interpretation of multiple linear regression

models.′′ Id. at 37. Still, NAS acknowledged that

Congress did not ′′require EPA to show a precise

relationship between a source’s emissions and

all or a specific fraction of the visibility

impairment within a Class I area.′′ Id. at 5, 37.

SRP sponsored its own monitoring study in the

winter of 1990 - the Navajo Generating Station

Visibility Study (′′NGSVS′′) - to investigate the

sources of visibility impairment in the Grand

Canyon and to determine what improvement in

visibility would result from a reduction of SO2

emissions at NGS. The NGSVS data indicated

that controlling SO2 emissions from NGS would

at most result in a 2% improvement in the winter

seasonal average standard visual range. While

detailing some episodes of visibility impairment

attributable to NGS, the NGSVS report

generally found that ′′the NGS was only part of

a regional problem and that it was not the

dominant contributor of sulfates.′′ Sonoma

Technology Inc., Navajo Generating Station

Visibility Study [**13] 2-11 (L. Willard

Richards et al. eds., 1991).

In February 1991, EPA proposed to revise the

FIP for Arizona to include emission limits under

BART to address wintertime visibility

impairment at the Grand Canyon reasonably

attributable to NGS. See56 Fed. Reg. 5,173

(1991) (codified at 40 C.F.R. § 52). EPA

solicited public comment on four possible

regulatory options, and proposed one of those

options - to require as BART for NGS a 70%

continuous SO2 emission limitation, determined

on a thirty-day rolling average, to be phased-in

between 1995 and 1999. Id. at 5,183-84. After a

public comment period of over nine weeks,

senior EPA policy officials met with the NGS

owners, representatives of the State of Arizona,

and certain environmental groups, including the

Grand Canyon Trust and the EDF, to explore

further additional control options which might

produce a pareto optimal solution, more

environmentally protective and economically

efficient. 5 These meetings resulted in a

′′memorandum of understanding′′ which

recommended that EPA adopt a regulatory

approach designed to achieve a greater degree of

visibility improvement in the [**14] Grand

Canyon at lower cost than the proposal

published by EPA in February 1991. EPA

published the proposal outlined in the

memorandum of understanding and reopened the

public comment period. See56 Fed. Reg. 38,399,

38,401 (1991) (codified at 40 C.F.R. § 52). EPA

received twenty-one comments during this

supplemental period, eighteen of which

supported the new proposal. See56 Fed. Reg. at

50,177.

In the Final Rule, dated October 3, 1991, EPA

issued its final determination that certain

visibility impairment episodes at the [*1537]

Grand Canyon were ′′traceable to NGS and that

NGS is a dominant contributor to certain

visibility impairment episodes,′′ and

promulgated revisions to the Arizona visibility

FIP to address the impairment. Id. The revisions

adopted a regulatory approach consistent with

the memorandum of understanding’s proposal,

[**15] reducing SO2 emissions 90% to a level

of 0.10 lb/MMBtu. Id. EPA determined that this

approach would more adequately achieve

′′reasonable progress′′ toward the national

visibility goal under section 169A(b)(2) of the

Act, 42 U.S.C. § 7491(b)(2), than would the

alternative provided by BART analysis. See56

5

Summaries of these meetings were placed in the administrative record. See56 Fed. Reg. at 50,177.

Page 7 of 16

990 F.2d 1531, *1536; 1993 U.S. App. LEXIS 5881, **11

Ann Lyons
Fed. Reg. at 50,177. As required by section

307(d) of the Act, EPA’s action was

′′accompanied by a response to each of the

significant comments, criticisms, and new data

submitted in written or oral presentations during

the comment period.′′ 42 U.S.C. § 7607(d)(6)(B).

EPA issued its responses in the regulation itself

and in a supplementary ninety-one page

document entitled ′′Response to Public

Comments: Proposed Revisions to Arizona

Visibility FIP for Navajo Generating Station′′

[hereinafter Response to Public Comments].

II. STANDING

First, as a threshold jurisdictional matter, EPA

challenges whether the Districts have standing to

bring this action. We find that the Districts do

have standing.

A. Constitutional Standing

HN3 The Supreme Court recently outlined the

three elements [**16] of the ′′irreducible

constitutional minimum of standing′′ in Lujan v.

Defenders of Wildlife, 119 L. Ed. 2d 351, 112 S.

Ct. 2130 (1992):

First, the plaintiff must have suffered an ′′injury

in fact′′ - an invasion of a legally-protected

interest which is (a) concrete and particularized,

and (b) ′′actual or imminent, not ’conjectural’ or

’hypothetical.’′′ Second, there must be a causal

connection between the injury and the conduct

complained of - the injury has to be ′′fairly . . .

traceable to the challenged action of the

defendant, and not . . . the result [of] the

independent action of some third party not

before the court.′′ Third, it must be ′′likely,′′ as

opposed to merely ′′speculative,′′ that the injury

will be ′′redressed by a favorable decision.′′

Id. at 2136 (footnote, citations omitted; ellipses

in original). Justice Scalia elaborated that ′′when

the plaintiff is not himself the object of the

government action or inaction he challenges,

standing is not precluded, but it is ordinarily

’substantially more difficult’ to establish.′′ Id. at

2137 (quoting Allen v. Wright, 468 U.S. 737,

758, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984)).

[**17]

1. Injury in Fact

The Districts’ claimed injury is an economic

one: CAWCD claims it is contractually required

to repay much of BOR’s 24.3% share of the

costs of installing and maintaining emission

controls at NGS as required by the Final Rule.

HN4 Pecuniary injury is clearly ′′a sufficient

basis for standing.′′ See Fair v. EPA, 795 F.2d

851, 853-54 (9th Cir. 1986) (citing cases). But

while pecuniary or economic injury is generally

a legally protected interest, the ′′injury in fact′′

test ′′’requires that the party seeking review be

himself among the injured.’′′ Lujan, 112 S. Ct. at

2137 (quoting Sierra Club v. Morton, 405 U.S.

727, 734-35, 31 L. Ed. 2d 636, 92 S. Ct. 1361

(1972)). That party’s injury must be (a) concrete

and particularized, and (b) actual or imminent,

and not conjectural or hypothetical. Id. at 2136.

EPA argues that the owners of NGS are the ones

directly aggrieved by the Final Rule, and that the

indirect economic harm that the Districts may

suffer as a result of their financial obligation to

one of NGS’s owners is too attenuated an

interest to provide them with standing to bring

this challenge. EPA claims the [**18] Districts’

injury is purely speculative because: (1)

CAWCD concedes it will attempt to pass on

increased costs caused by the Final Rule to its

water users and taxpayers (including the four

petitioning irrigation districts); and (2) CAWCD

has failed to demonstrate [*1538] that BOR

will in fact have to pay a portion of any existing

compliance costs, 6

or that CAWCD will be

required under contract to reimburse BOR for a

portion of those costs assuming they exist. Thus,

EPA argues, the Districts’ economic injury is too

indirect, speculative, and hypothetical to provide

them with standing.

6 Under section 403(b) of the Act, a regulated party may transfer SO2 allowances under an allowance trading program. See42

U.S.C. § 7651b(b). EPA notes that sale of allowances may offset the required capital investment for control equipment. Thus, EPA

argues, capital costs may never be passed on to the District.

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Ann Lyons
We conclude that CAWCD’s economic injury is

sufficiently concrete and imminent to accord

[**19] it standing to litigate this action. The

Districts’ claimed injury is by no means ′′a

general or amorphous harm,′′ National Wildlife

Fed’n v. Burford, 871 F.2d 849, 852 (9th Cir.

1989), nor is it a mere generalized grievance. See

Lujan, 112 S. Ct. at 2143. While the extent of

CAWCD’s economic harm is not readily

determinable, the record reveals that the Final

Rule will likely cause Petitioners some amount

of pecuniary harm given their obligation to repay

BOR’s share of the costs imposed by the Final

Rule. Neither the sale of marketable allowances

nor the possibility of passing on increased costs

to consumers undermine the Districts’ showing

of the required ′′actual or threatened injury.′′

Valley Forge Christian College v. Americans

United for Separation of Church & State, Inc.,

454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct.

752 (1982); Competitive Enter. Inst. v. NHTSA,

284 U.S. App. D.C. 1, 901 F.2d 107, 112 (D.C.

Cir. 1990).

2. Causation and Redressability

In addition to the injury in fact requirement, the

Districts must prove causation and

redressability, i.e., that their alleged economic

injury is fairly [**20] traceable to EPA’s

challenged action, and that the relief requested is

likely to redress that injury. Lujan, 112 S. Ct. at

2136. EPA argues that since the Districts’

alleged economic injury flows from obligations

under the BOR/CAWCD agreement, the injury is

not caused by or fairly traceable to the

challenged agency action. This argument misses

the point. While CAWCD’s contractual

obligations may provide the basis for its

economic liability for the increased costs

imposed by the Final Rule, that hardly means

that the Final Rule itself is not the direct cause of

that liability. Further, the involvement of an

intermediate third-party here does not undermine

the Districts’ causation argument since ′′the

government’s action [is] substantially likely to

cause the petitioners’ injury despite the presence

of intermediary parties.′′ Competitive Enter., 901

F.2d at 114 (consumer organization has standing

to challenge NHTSA fuel economy standards on

grounds that organization members would be

hindered in their ability to purchase larger

vehicles). Finally, the Districts’ economic injury

is likely to be redressed by a favorable decision

[**21] since elimination of the Final Rule

would necessarily eliminate the increased

financial burden the rule causes.

B. Prudential Standing

In addition to the constitutional standing

requirements, Petitioners must also prove that

their asserted interest is ′′within the zone of

interests protected by′′ the Clean Air Act. See,

e.g., Fair v. EPA, 795 F.2d at 854.

EPA contends that the Districts’ economic injury

is not within the zone of interests of the Act’s

visibility provisions, which are designed to

′′preserve, protect, and enhance the air quality in

national parks.′′ 42 U.S.C. § 7470(2). EPA’s

argument ignores the fact that ′′the zone of

interest test is ’not meant to be particularly

demanding.’′′ National Wildlife Fed’n v.

Burford, 871 F.2d at 852 (quoting Clarke v.

Securities Indus. Ass’n, 479 U.S. 388, 399, 93 L.

Ed. 2d 757, 107 S. Ct. 750 (1987)). As the

Supreme Court clarified in Clarke:

In cases where the plaintiff is not itself the

subject of the contested regulatory action, the

test denies a right of review if the plaintiff’s

interests are so marginally related to or

inconsistent [**22] with the purposes [*1539]

implicit in the statute that it cannot reasonably be

assumed that Congress intended to permit the

suit.

479 U.S. at 399. Under this permissive standard,

the Districts’ economic injury sufficiently falls

within the ′′zone of interests′′ protected by the

visibility provisions of the Act. Section 169A of

the Act requires the Administrator to consider

′′the costs of compliance′′ in setting standards to

achieve reasonable progress towards the national

visibility goal. 42 U.S.C. § 7491(g)(1). As

entities required to pay those costs of

Page 9 of 16

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Ann Lyons
compliance, the Districts’ interests cannot

reasonably be described as ′′marginally related to

or inconsistent with′′ the purposes of the Act.

We therefore conclude that Petitioners have

standing to bring this challenge.

III. STANDARD OF REVIEW

The appropriate judicial review of the

regulations at issue here is provided for in

section 307(d) of the Act, 42 U.S.C. § 7607(d).

In relevant part, section 307(d)(9) provides that a

reviewing court may reverse any action of the

Administrator found to be

HN5 (A) arbitrary, capricious, an abuse of

discretion, [**23] or otherwise not in

accordance with law;

. . .

(C) in excess of statutory jurisdiction, authority,

or limitations, or short of statutory right; or

(D) without observance of procedure required by

law, if (i) such failure to observe such procedure

is arbitrary or capricious, (ii) the requirement of

paragraph (7)(B) has been met, and (iii) the

condition of the last sentence of paragraph (8) is

met.

42 U.S.C. §§ 7607(d)(9)(A), (C)-(D).

Paragraph (7)(B) generally limits judicial review

to procedural objections ′′raised with reasonable

specificity during the period for public

comment.′′ Id. at § 7607(d)(7)(B). But paragraph

(7)(B) does provide for mandatory

reconsideration of the rule by the agency if an

objecting party can ′′demonstrate to the

Administrator′′ that (1) it was ′′impracticable′′ to

properly raise a given procedural objection, and

(2) the ′′objection is of central relevance to the

outcome of the rule.′′ Id. 7 The last sentence of

paragraph (8) further provides:

[**24] HN7

In reviewing alleged procedural errors, the court

may invalidate the rule only if the errors were so

serious and related to matters of such central

relevance to the rule that there is a substantial

likelihood that the rule would have been

significantly changed if such errors had not been

made.

42 U.S.C. § 7607(d)(8).

Review of EPA’s actions under section 307(d) of

the Act is guided by the appropriate deference

given to an agency’s interpretation of the statute

Congress has entrusted it to administer. Chevron

U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 843

(1984) (where the Clean Air Act is either ′′silent

or ambiguous with respect to the specific issue,

the question for the court is whether the agency’s

answer is based on a permissible construction of

the statute′′). ′′Deference also guides our review

of the Administrator’s interpretation of EPA

regulations if the interpretation is not

unreasonable.′′ Citizens for Clean Air v. EPA,

959 F.2d 839, 844 (9th Cir. 1992); see also

Hawaiian Elec. Co. v. EPA, 723 F.2d 1440, 1447

(9th Cir. 1984) (′′When EPA is interpreting

[**25] its own regulations, it is entitled to even

more deference.′′). Moreover, the Supreme Court

has advised that HN8 ′′a reviewing [*1540]

court must generally be at its most deferential′′

when the agency is ′′making predictions, within

its area of special expertise, at the frontiers of

7

The relevant portion of paragraph (7)(B) more fully provides:

HN6

If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within

such time or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial

review) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding

for reconsideration of the rule . . . . If the Administrator refuses to convene such a proceeding, such person may seek review of

such refusal in the United States court of appeals for the appropriate circuit . . . .

42 U.S.C. § 7607(d)(7)(B).

Page 10 of 16

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Ann Lyons
science.′′ Baltimore Gas & Elec. Co. v. NRDC,

Inc., 462 U.S. 87, 103, 103 S. Ct. 2246, 75 L. Ed.

2d 437 (1983). In such situations, this court is to

′′defer to the agency’s interpretation of equivocal

evidence, so long as it is reasonable.′′ NRDC,

Inc. v. EPA, 284 U.S. App. D.C. 136, 902 F.2d

962, 968 (D.C. Cir. 1990), vacated, in part,

dismissed,287 U.S. App. D.C. 286, 921 F.2d 326

(D.C. Cir.), certs. dismissed,498 U.S. 1075, 111

S. Ct. 806, 112 L. Ed. 2d 865, cert. denied, 498

u. S. 1082, 112 L. Ed. 2d 1040, 111 S. Ct. 952

(1991).

HN9 While this court should not defer to the

agency where it ′′simply has not exercised its

expertise,′′ Public Citizen Health Research

Group v. Tyson, 254 U.S. App. D.C. 253, 796

F.2d 1479, 1505 (D.C. Cir. 1986),

8

courts are

′′extremely deferential to administrative

agencies in cases involving technical rulemaking

decisions.′′ New York v. Reilly, 297 U.S. App.

D.C. 147, 969 F.2d 1147, 1152 (D.C. Cir. 1992);

[**26] see also id. at 1150-51 (′′We are

particularly deferential when reviewing agency

actions involving policy decisions based on

uncertain technical information.′′); Tyson, 796

F.2d at 1505 (′′As long as Congress delegates

power to an agency to regulate on the borders of

the unknown, courts cannot interfere with

reasonable interpretations of equivocal

evidence.′′).

IV. [**27] DISCUSSION

A. EPA’s Statutory Authority to Promulgate the

Final Rule

Petitioners argue that in promulgating the Final

Rule, EPA acted ′′in excess of statutory

jurisdiction, authority, or limitations, or short of

statutory right′′ under 42 U.S.C. § 7607(d)(9)(c).

Petitioners claim that the Final Rule regulates

′′regional haze′′ when EPA’s own regulations

expressly defer regulation of that type of

visibility impairment until future phases. See45

Fed. Reg. at 80,086. We conclude that the Final

Rule was legitimately promulgated under Phase

I regulations directed at ′′reasonably

attributable′′ visibility impairment.

Petitioners rely on Vermont v. Thomas, 850 F.2d

99 (2d Cir. 1988), where EPA reaffirmed that it

was without authority to regulate ′′regional haze′′

and that measures addressing that type of

impairment are outside the scope of EPA’s

jurisdiction. This reliance is misplaced. In

Thomas, the state of Vermont submitted to EPA

an SIP which ′′proposed a federally enforceable

’long-term strategy’ to combat the effects of

regional haze′′ at the Lye Brook National

Wilderness Area. Id. at 101. [**28] The court

held that without EPA rulemaking addressing

regional haze, the state’s regional haze measures

were ′′outside the scope′′ of EPA’s statutory and

regulatory authority. Id. at 103-04. Here, EPA

properly promulgated its Final Rule under its

Phase I regulations directed at ′′reasonably

attributable′′ impairment. 9

Thomas is thus

distinguishable since it involved a direct and

explicit attempt to regulate ′′regional haze.′′

[**29] EPA has acknowledged that ′′NGS is not

the only source of visibility impairment′′ at

[*1541] the Grand Canyon, 56 Fed. Reg. at

8

For instance, in Motor Vehicle Manufacturers Association of United States, Inc. v. State Farm Mutual Automobile Insurance

Co., 463 U.S. 29, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983), the Supreme Court found an agency ruling arbitrary and capricious where

the agency had ′′entirely failed to consider an important aspect of the problem.′′ Id. at 43. State Farm shows that the ′′expertise

model′′ does not necessarily mandate judicial deference, since the Court there took a ′′hard look′′ to ensure that the agency was in

fact using its expertise in arriving at policy decisions.

9

In the Final Rule itself, EPA made eminently clear that its action addressed Phase I visibility impairment rather than Phase II

′′regional haze.′′ See56 Fed. Reg at 50,172. Pursuant to Congress’s 1990 amendments to the Act, EPA subsequently established

the Grand Canyon Visibility Transport Commission (′′GCVTC′′), 42 U.S.C. § 7492(f), whose duty it is to make recommendations

on ′′promulgation of regulations under section 7491 of this title to address long range strategies for addressing regional haze

which impairs visibility in affected class I [Federal] areas′′ like the Grand Canyon. 42 U.S.C. § 7492(d)(2)(C). Congress envisioned

GCVTC as a long-term complement to EPA’s then-pending efforts to remedy impairment at the Grand Canyon which was

attributable to NGS. See 136 Cong. Rec. S2890 (March 21, 1990).

Page 11 of 16

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Ann Lyons
50,177, and that regional haze also adversely

affects visibility there. Response to Public

Comments at 23. Nonetheless, these mere facts

hardly mean that EPA is without statutory

authority to remedy the impairment attributable

to NGS. Even if the Final Rule addresses only a

small fraction of the visibility impairment at the

Grand Canyon, EPA still has the statutory

authority to address that portion of the visibility

impairment problem which is, in fact,

′′reasonably attributable′′ to NGS. Congress

mandated an extremely low triggering threshold,

requiring the installment of stringent emission

controls when an individual source ′′emits any

air pollutant which may reasonably be

anticipated to cause or contribute to any

impairment of visibility′′ in a class I Federal

area. 42 U.S.C. § 7491(b)(2)(A). The National

Academy of Sciences correctly noted that

Congress has not required ironclad scientific

certainty establishing the precise relationship

between a source’s emission and resulting

visibility impairment:

[**30] The phrase ′′may reasonably be

anticipated′′ suggests that Congress did not

intend to require EPA to show a precise

relationship between a source’s emissions and

all or a specific fraction of the visibility

impairment within a Class I area. Rather, EPA is

to assess the risk in light of policy considerations

regarding the respective risks of overprotection

and underprotection.

Haze in the Grand Canyon at 5.

HN10 Acting in place of the state of Arizona

pursuant to an FIP under 42 U.S.C. § 7410(c),

EPA ′′stands in the shoes of the defaulting State,

and all of the rights and duties that would

otherwise fall to the State accrue instead to

EPA.′′ 54 Fed. Reg. at 36,952. EPA is therefore

granted broad discretion in determining whether

visibility impairment is ′′reasonably attributable′′

to a given source. See40 C.F.R. § 51.301(s)

(defining ′′reasonably attributable′′ as

′′attributable by visual observation or any other

technique the State deems appropriate′′)

(emphasis added). This broad, all-inclusive

definition of the term ′′reasonably attributable′′

directly refutes Petitioners’ argument that EPA is

limited to addressing visibility [**31]

impairment caused by a noticeable plume that is

directly traceable to a given source through the

use of visual observation or simple monitoring

techniques.

We conclude that the technical, scientific record

more than adequately supports EPA’s reasonable

conclusion that visibility impairment in the

Grand Canyon is ′′reasonably attributable′′ to

NGS. We defer to the agency’s reasonable

interpretation of its own regulations and

statutory mandate. Its interpretation is most

certainly consonant with Congress’s apparent

intent. For instance, in his introduction of the

Conference Committee report to the House,

Representative Henry Waxman stated:

Protecting the Grand Canyon simply must

become a normal business practice of the

American industry . . . The Four Corners and

Navajo powerplants can expect to retrofit with

additional pollution controls to limit the vast

deterioration in visibility which their plumes

have caused.

Impairment of visibility is the single most

apparent impact air pollution has on the

environment. It is our intent that aggressive steps

be taken to reduce this eyesore which has

defaced our grand vistas in the West.

123 Cong. Rec. 27,076 (1977) (statement of

Rep. Waxman). [**32] EPA’s interpretation of

its authority to determine whether visibility

impairment is ′′reasonably attributable′′ to NGS

is entitled to deference from this court since the

agency’s ′′’choice represents a reasonable

accommodation of conflicting policies that were

committed to the agency’s care by the statute,’′′

which this court ′′’should not disturb’′′ since it

does not appear ′′’from the statute or its

legislative history that the accommodation is not

one that Congress would have sanctioned.’′′

Chevron, 467 U.S. at 845 (quoting United States

Page 12 of 16

990 F.2d 1531, *1541; 1993 U.S. App. LEXIS 5881, **29

Ann Lyons
v. Shimer, 367 U.S. 374, 383, 6 L. Ed. 2d 908, 81

S. Ct. 1554 (1961)).

B. The Final Rule as the Product of ′′Reasoned

Decisionmaking′′

Petitioners proffer various arguments that the

Final Rule is not the product [*1542] of

′′reasoned decisionmaking.′′ They assert that

EPA has acted arbitrarily and capriciously by

overestimating the improvements in visibility

expected from the Final Rule’s emission controls

at NGS, by purportedly failing to address

criticisms to the scientific data and analyses on

which it relied, and by allegedly ignoring certain

evidence while placing undue reliance on other

evidence. At bottom, however, Petitioners’

[**33] real complaint appears to be that the

Final Rule will most likely lead to minimal

visibility improvement at the Grand Canyon

while imposing a substantial financial burden on

them. Nonetheless, we find unsupported

Petitioners’ legal claim that EPA acted arbitrarily

and capriciously in promulgating the Final Rule.

The Final Rule makes ′′reasonable progress′′

toward the national goal of remedying visibility

impairment at the Grand Canyon, and is the

product of reasoned decisionmaking.

1. The Final Rule as ′′Reasonable Progress′′

toward the National Goal of Remedying

Visibility Impairment at the Grand Canyon

HN11 In reviewing whether the agency’s action

in promulgating the Final Rule was arbitrary and

capricious, this court ′′is not to substitute its

judgment for that of the agency.′′ State Farm,

463 U.S. at 43. Instead, we inquire whether the

agency has ′′examined the relevant data and

articulated a satisfactory explanation for its

action, including a ’rational connection between

the facts found and the choice made.’′′ Id.

(quoting Burlington Truck Lines, Inc. v. United

States, 371 U.S. 156, 168, 9 L. Ed. 2d 207, 83 S.

Ct. 239 (1962)). Our review is limited to [**34]

′′whether the agency considered the relevant

factors and whether there has been a clear error

of judgment.′′ NRDC, Inc. v. EPA, 966 F.2d

1292, 1297 (9th Cir. 1992) (citing Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814

(1971)). In this case, the relevant factors are

provided by Congress’s definition of

′′reasonable progress′′ in 42 U.S.C. § 7491(g)(1).

Additionally, as the D.C. Circuit recently noted

in discussing a similar provision of the Act,

′′because Congress did not assign the specific

weight the Administrator should accord each of

these factors, the Administrator is free to

exercise his discretion in this area.′′ New York v.

Reilly, 969 F.2d at 1150 (discussing 42 U.S.C. §

7411(a)(1)(C)). 10

[**35] a. The ′′Reasonable Progress′′

Provisions

In the Act, Congress directed EPA to promulgate

regulations to assure ′′reasonable progress

toward meeting the national goal′′ of preventing

future, and remedying existing visibility

impairment in Class I federal areas like the

Grand Canyon. See42 U.S.C. §§ 7491(a)(4),

(a)(1), (b)(2), (b)(2)(B). Congress chose not to

define the term ′′reasonable progress,′′ but

instead set forth several factors for the agency to

consider:

HN12 In determining reasonable progress there

shall be taken into consideration the costs of

compliance, the time necessary for compliance,

and the energy and nonair quality environmental

impacts of compliance, and the remaining useful

life of any existing source subject to such

requirements[.]

42 U.S.C. § 7491(g)(1). In promulgating the

Final Rule, EPA relied on the ′′reasonable

progress′′ provisions as its statutory authority.

10 Petitioners incorrectly suggest that EPA was required to engage in ′′cost-benefit′′ analysis. Congress has not required

′′cost-benefit′′ analysis in the Act. Cf. American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 510, 69 L. Ed. 2d 185, 101 S.

Ct. 2478 (1981) (′′When Congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such

intent on the face of the statute.′′).

Page 13 of 16

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Ann Lyons
See56 Fed. Reg. at 50,177 (noting that EPA

adopts the ′′reasonable progress′′ provisions of

section 169A(b)(2), 42 U.S.C. § 7491(b)(2) as

the ′′legal rationale′′ [**36] for the Final Rule).

HN13 Generally, the Act and its regulations

require the application of BART once it has been

determined that visibility impairment is

′′reasonably attributable′′ to an existing source

like NGS. See42 U.S.C. § 7491(b)(2); 40 C.F.R.

§ 51.302(c)(4)(i). [*1543] Under the unique

circumstances of this case, however, EPA chose

not to adopt the emission control limits indicated

by BART analysis, but instead to adopt an

emission limitations standard that would

produce greater visibility improvement at a

lower cost. Congress’s use of the term

′′including′′ in § 7491(b)(2) prior to its listing

BART as a method of attaining ′′reasonable

progress′′ supports EPA’s position that it has the

discretion to adopt implementation plan

provisions other than those provided by BART

analyses in situations where the agency

reasonably concludes that more ′′reasonable

progress′′ will thereby be attained. Since the Act

itself is ambiguous on the specific issue, we

apply the Supreme Court’s deferential standard

from Chevron and hold that the agency’s

reliance on the ′′reasonable progress′′ provisions

is a ′′permissible construction of the statute,′′ 467

U.S. at 843, [**37] since ′′reasonable progress′′

is the overarching requirement that

implementation plan revisions under 42 U.S.C. §

7491(b)(2) must address.

b. EPA Reasonably Considered the Relevant

Factors

The administrative record reveals that EPA

adequately considered the relevant factors in

promulgating the Final Rule. 11 Petitioners’

essential argument does not claim that EPA

failed to consider the relevant factors, but

instead contends that EPA erred in its

consideration of those factors. This court is not

to substitute Petitioners’ judgment, or its own,

for that of EPA, as long as the agency’s

interpretation is reasonable. In fact, this is just

the type of case in which the Supreme Court has

stated that judicial review should ′′be at its most

deferential,′′ because the agency is ′′making

predictions, within its area of special expertise,

at the frontiers of science.′′ Baltimore Gas &

Elec. Co., 462 U.S. at 103. We therefore find that

the agency’s interpretation of the evidence, and

its weighing of the relevant factors, are

reasonable, and that the Final Rule is the product

of ′′reasoned decisionmaking.′′

[**38] 2. Petitioners Have Failed to

Demonstrate that EPA Acted in an Arbitrary and

Capricious Manner

Petitioners argue that EPA relied on discredited

elements of a seriously flawed study, failed to

refute significant criticisms which undercut the

basis for EPA’s improvement estimate, and

refused to consider highly relevant evidence

which contradicted its estimate. They conclude

that EPA has acted arbitrarily and capriciously.

We reject these arguments.

The allegedly discredited study on which EPA

relied was the Park Service’s analysis of the

WHITEX data. The record reveals, however, that

EPA acknowledged the limitations of the Park

Service report (even seeking and obtaining NAS

comment on it), and did not rely solely upon that

report’s conclusions. As discussed supra, EPA’s

determination that visibility impairment at the

Grand Canyon is ′′reasonably attributable′′ to

emissions at NGS was eminently reasonable and

adequately supported by a substantial body of

scientific and technical evidence in the record.

Further, as the D.C. Circuit noted in NRDC v.

EPA:

′′The Administrator may apply his expertise to

draw conclusions from suspected, but not

completely substantiated, relationships [**39]

between facts, from trends among facts, from

theoretical projections from imperfect data, from

11 Actually, EPA not only considered the ′′reasonable progress′′ factors, but also considered expected visibility improvement

under the Final Rule, as required by BART analysis.

Page 14 of 16

990 F.2d 1531, *1542; 1993 U.S. App. LEXIS 5881, **35

Ann Lyons
probative preliminary data not yet certifiable as

’fact,’ and the like.′′

902 F.2d at 968 (quoting Ethyl Corp. v. EPA, 176

U.S. App. D.C. 373, 541 F.2d 1, 28 (D.C. Cir.)

(en banc), cert. denied,426 U.S. 941 (1976)).

While this court must still ensure that ′′the

agency has made a reasoned decision based on

’reasonable extrapolations from some reliable

evidence,’′′ id. (quoting NRDC, Inc. v. Thomas,

256 U.S. App. D.C. 310, 805 F.2d 410, 432 (D.C.

Cir. 1986)), this standard adequately has been

met here.

[*1544] Petitioners further challenge as

arbitrary and capricious EPA’s estimate of the

quantum of visibility improvement which the

agency expects to result from imposition of the

Final Rule’s emission limits at NGS. In arriving

at its estimate that the Final Rule ′′should

improve the winter seasonal average visibility

above the rim of the [Grand Canyon]

approximately 7 percent,′′ 56 Fed. Reg at

50,180, EPA discussed the estimates of three

studies: (1) the Park Service’s WHITEX

estimate of 14% improvement, [**40] (2) the

NGSVS estimate of at most a 2% improvement,

and (3) a modelling study, conducted by Douglas

Latimer and submitted during the comment

period, which estimated a range of 4 to 8%

improvement. Petitioners contend that EPA

arrived at its 7% estimate in an arbitrary and

capricious manner because, they contend, EPA

failed to consider and place in the administrative

record a new report prepared by Latimer in

which he allegedly reconsiders his previous

estimate of visibility improvement, reducing it to

3 to 4%. Petitioners additionally claim that

failure to put this new report in the

administrative record constitutes an abuse of

discretion. We find Petitioners’ challenge both

legally untenable and factually misleading.

First, the challenge is legally untenable because

it relies on this court’s consideration of evidence

- the new Latimer report - which is not a part of

the administrative record. In the Act, Congress

explicitly and unambiguously provided that ′′the

record for judicial review shall consist

exclusively′′ of certain specifically enumerated

categories of materials. 42 U.S.C. §

7607(d)(7)(A) (emphasis added). ′′Nothing in the

statute [**41] or its legislative history indicates

that a party or the agency may reopen the record

by placing additional materials (other than those

required by the statute and wrongfully omitted

by EPA) in the docket after promulgation of the

rule.′′ Lead Indus. Ass’n v. EPA, 208 U.S. App.

D.C. 1, 647 F.2d 1130, 1183 (D.C. Cir.), cert.

denied,449 U.S. 1042 (1980).

12 The new

Latimer report was not included in the

administrative record, nor was it required to be.

EPA explains that the report was not directly

related to NGS, but was instead submitted to

EPA in the context of the GCVTC regional haze

efforts under section 169B of the Act.

[**42] Additionally, Petitioners ignore the route

for administrative and judicial review of ′′new

information′′ and alleged ′′procedural errors′′ in

the creation of the administrative docket that

Congress created: 42 U.S.C. § 7607(d)(7)(B)’s

mechanism for reconsideration by the agency.

Petitioners have failed to move for

reconsideration and are now trying to

circumvent this congressionally mandated route

by petitioning for direct judicial review. We

therefore deny Petitioners’ motion to supplement

the administrative record and direct Petitioners

to consult section 7607(d)(7)(B) in order to

fashion their claim as a petition for

reconsideration to EPA, as Congress had

envisioned.

Second, even if this court were to consider

Petitioners’ argument on the merits, their

challenge is misleading because Latimer himself

indicates that Petitioners have misrepresented

the statements and conclusions contained in his

12 Petitioners’ reliance on Kent County v. EPA, 295 U.S. App. D.C. 288, 963 F.2d 391 (D.C. Cir. 1992) is misplaced because,

unlike the Clean Air Act here, the statutory provision at issue in Kent County contained no special procedural provisions displacing

general rules of administrative law governing the administrative record for judicial review. Compare42 U.S.C. §§ 7607(d)(1),

(d)(7)(A)with42 U.S.C. § 9613(a).

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990 F.2d 1531, *1543; 1993 U.S. App. LEXIS 5881, **39

Ann Lyons
new report. We therefore reject Petitioners’

argument that EPA has somehow acted

arbitrarily or capriciously, or abused its

discretion, through the manner in which it

arrived at its estimate of visibility improvement.

V. CONCLUSION

In the final analysis, Petitioners [**43] simply

adhere to a different interpretation of the rather

disparate and equivocal scientific data in the

record. While Petitioners may not be satisfied

with EPA’s responses, it is not EPA’s duty to

satisfy all of the concerns of potentially affected

or aggrieved parties. EPA conducted an

extensive and involved notice and comment

period, and [*1545] adequately met its statutory

obligation of responding to significant

comments and criticisms under 42 U.S.C. §

7607(d)(6)(B). Notwithstanding Petitioners’

challenge, the Final Rule is the result of a

site-specific informal rulemaking process that

included virtually unprecedented cooperation

between the governmental agency and the

directly affected parties. See generally D.

Michael Rappoport & John F. Cooney, Visibility

at the Grand Canyon: Regulatory Negotiations

Under the Clean Air Act, 24 Ariz. St. L.J. 627

(1992). Petitioners’ arguments afford no reason

for this court disruptively to interject itself into

the picture. Because Congress delegated to EPA

the power to ′′regulate on the borders of the

unknown,′′ this court will not interfere with the

agency’s ′′reasonable interpretations [**44] of

equivocal evidence.′′ Public Citizen Health

Research Group v. Tyson, 796 F.2d at 1505.

Even if this case highlights how hard it is to

engage in ′′reasoned decisionmaking′′ in cases

involving scientific uncertainty, EPA’s actions in

promulgating the Final Rule were reasonable

and within the bounds of its statutory authority,

and not arbitrary and capricious.

The Districts’ petition for review and motion to

supplement the administrative record are

accordingly DENIED.

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Ann Lyons