User Name: Ann Lyons

Date and Time: 06/06/2014 1:16 PM EDT

Job Number: 10479954

Document(1)

1. Ctr. for Energy & Econ. Dev. v. EPA, 398 F.3d 653

Client/Matter: -NoneNarrowed by:

Content Type Narrowed by

Cases Court: 9th Circuit; Court: DC Circuit

| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2014 | LexisNexis.

Ann Lyons
Neutral

As of: June 6, 2014 1:16 PM EDT

Ctr. for Energy & Econ. Dev. v. EPA

United States Court of Appeals for the District of Columbia Circuit

November 8, 2004, Argued ; February 18, 2005, Decided

No. 03-1222

Reporter: 398 F.3d 653; 365 U.S. App. D.C. 65; 2005 U.S. App. LEXIS 2879; 59 ERC (BNA)

1993; 35 ELR 20044

CENTER FOR ENERGY AND

ECONOMICDEVELOPMENT, PETITIONER

v. ENVIRONMENTAL PROTECTION

AGENCY, RESPONDENT; PHELPS DODGE

CORPORATION, ET AL., INTERVENORS

Subsequent History: Costs and fees proceeding

at, Request granted Ctr. for Energy & Econ.

Dev. v. EPA, 2005 U.S. App. LEXIS 7117 (D.C.

Cir., Apr. 25, 2005)

Prior History: [***1] On Petition for Review

of an Order of the Environmental Protection

Agency.

Ctr. for Energy And Econ. Dev. v. EPA, 2004

U.S. App. LEXIS 26616 (D.C. Cir., Dec. 20,

2004)

Disposition: Petition for review granted.

Core Terms

visibility, grower, annex, corn, regional,

progress, emission, haze, air, pollute,

impairment, technology, canyon, national park,

better-than-bart, calculate, milestone, transport,

retrofit

Case Summary

Procedural Posture

Petitioner, an organization that represented a

group of pollution sources in a region, sought

review of an order of respondent U.S.

Environmental Protection Agency (EPA), which

promulgated a rule (Annex Rule) pursuant to 40

C.F.R. § 51.309 that permitted a group of states

to reduce haze by means other than that imposed

under 40 C.F.R. § 51.308.

Overview

To address the problem of haze obscuring the

Grand Canyon and various other national parks

and wilderness areas in the west, the EPA

promulgated the Haze Rule, 40 C.F.R §§ 51.308,

309. The Haze Rule required states to impose

best available retrofit technology (BART) on

so-called ′′BART-eligible sources,′′ a specified

class of large stationary pollution sources that

had been in operation since a certain date. The

Haze Rule also permitted states to reduce haze

by alternative means, including a regional

approach, so long as the alternative would be

better than BART. The court vacated parts of the

Haze Rule because the EPA’s methods for

determining BART were inconsistent with §

169A of the Clean Air Act, 42 U.S.C.S. § 7491.

The Annex Rule, proposed by a regional body,

constituted the alternative method permitted

under the Haze Rule. The organization argued

that, to determine whether the Annex Rule was

better than BART, the EPA used a BART

methodology quite similar to the one that the

court had previously condemned. In granting the

petition, the court held that the prior court

decision invalidated the key premise on which

the EPA developed the Annex Rule.

Outcome

The court granted the organization’s petition for

review.

LexisNexis® Headnotes

Ann Lyons
Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > State

Implementation Plans

HN1 40 C.F.R. § 51.308 requires states to

impose best available retrofit technology

(BART) on so-called ′′BART-eligible sources,′′ a

specified class of large stationary pollution

sources that have been in operation since August

7, 1977.

Energy & Utilities Law > Pipelines & Transportation >

Eminent Domain Proceedings

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > State

Implementation Plans

HN2 40 C.F.R. § 51.309 permits states to reduce

haze by alternative means, including a regional

approach, so long as the alternative would be

better than the best available retrofit technology

(BART), i.e., improve visibility more rapidly

than under BART.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

Environmental Law > Air Quality > State

Implementation Plans

Transportation Law > Commercial Vehicles > Emission

Control

HN3 Section 169A of the Clean Air Act declares

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. 42 U.S.C.S. § 7491(a)(1). It instructs

the Environmental Protection Agency (EPA) to

require covered states to submit state

implementation plans that contain such measures

as may be necessary to make reasonable

progress toward meeting the national goal. 42

U.S.C.S. § 7491(b)(2). In determining

reasonable progress, the EPA is to consider four

factors--the costs of compliance, the time

necessary for compliance, the energy and nonair

quality environmental impacts of compliance,

and the remaining useful life of any existing

regulated source. 42 U.S.C.S. § 7491(g)(1). In

imposing best available retrofit technology

requirements on the states, the EPA is to consider

those four factors, plus the degree of

improvement in visibility which may reasonably

be anticipated to result from the use of such

technology. 42 U.S.C.S. § 7491(g)(2).

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > State

Implementation Plans

HN4 40 C.F.R. § 51.308(d) sets out requirements

for state implementation plans to achieve natural

visibility conditions by 2064.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

Governments > Public Lands > General Overview

Governments > Public Lands > National Parks

HN5 Section 169B of the Clean Air Act

expresses a broadened congressional concern,

instructing the Environmental Protection Agency

(EPA) to research visibility impairment in

national parks and wilderness areas. 42 U.S.C.S.

§ 7492(a)(1). It also directs the EPA to establish

a visibility transport commission for the region

affecting the visibility of the Grand Canyon

National Park. 42 U.S.C.S. § 7492(f).

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > State

Implementation Plans

HN6 Under 40 C.F.R. § 51.309, the visibility

transport commission for the region affecting the

visibility of the Grand Canyon National Park , or

a regional body formed to implement a prior

commission report, may opt for a regional

alternative by submitting an ′′annex′′ to that

report. If the Environmental Protection Agency

(EPA) approves the program described in the

annex, then any state among the nine covered by

the commission can adopt the program in lieu of

the state-by-state requirements. 40 C.F.R. §

51.309(f). EPA approval turns largely on whether

the regional alternative provides greater

reasonable progress toward natural visibility

levels than would be achieved by the best

Page 2 of 9

398 F.3d 653, *653; 365 U.S. App. D.C. 65, **65; 2005 U.S. App. LEXIS 2879, ***1

Ann Lyons
available retrofit technology. 40 C.F.R. §

51.309(f)(1)(i).

Civil Procedure > ... > Justiciability > Standing >

General Overview

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

in Fact

HN7 Standing comprises the familiar elements

of injury in fact, causation, and redressability.

Administrative Law > Judicial Review >

Reviewability > Standing

Banking Law > Regulators > US Federal Deposit

Insurance Corporation > Supervisory Powers

HN8 Where an agency rule causes the injury, the

redressability requirement for standing may be

satisfied by vacating the challenged rule and

giving the aggrieved party the opportunity to

participate in a new rulemaking the results of

which might be more favorable to it.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Prevention of

Significant Deterioration

HN9 See 42 U.S.C.S. § 7491(b)(2).

Counsel: Paul M. Seby argued the cause for

petitioner. With him on the briefs was Peter S.

Glaser. Adam T. DeVoe and Sean M. Sullivan

entered appearances.

Kenneth C. Amaditz, Attorney, U.S. Department

of Justice, argued the cause for respondent. With

him on the brief were John C. Cruden, Deputy

Assistant Attorney General, and Jan M. Tierney,

Attorney, U.S. Environmental Protection

Agency.

Joseph P. Mikitish, Assistant Attorney General,

Attorney General’s Office of State of Arizona,

argued the cause for amici curiae State of

Arizona, et al. in support of respondent. With

him on the brief were Terry Goddard, Attorney

General, Bill Lockyer, Attorney General,

Attorney General’s Office of State of California,

Manel M. Medeiros, Solicitor General, Lisa

Madigan, Attorney General, Attorney General’s

Office of State of Illinois, Gary Feinerman,

Solicitor General, Patricia Madrid, Attorney

General, Attorney General, Attorney General’s

Office of State of New Mexico, Tracy M.

Hughes, Special Assistant Attorney General,

Mark Shurtleff, Attorney General, Attorney

General’s Office of State of Utah, Fred Nelson,

Assistant [***2] Attorney General, Patrick J.

Crank, Attorney General, Attorney General’s

Office of State of Wyoming, and Jay Jerde,

Senior Assistant Attorney General. Charles F.

Noble, Attorney, New Mexico Environment

Department, entered an appearance.

Chris S. Leason, Vickie L. Patton, and Thomas

A. Bloomfield were on the brief for intervenors

Phelps Dodge Corporation, et al.

Judges: Before: EDWARDS and

HENDERSON, Circuit Judges, and

WILLIAMS, Senior Circuit Judge. Opinion for

the Court filed by Senior Circuit Judge

WILLIAMS.

Opinion by: WILLIAMS

Opinion

[**66] [*654] WILLIAMS, Senior Circuit

Judge: Haze obscuring the Grand Canyon and

various other national parks and wilderness areas

in the west is a multi-state problem. In the

interests of developing a solution, the

Environmental Protection Agency in 1999

adopted a Regional Haze Rule (′′Haze Rule′′), 40

C.F.R. §§ 51.308-51.309. HN1 Section 308

required states to impose best available retrofit

technology (′′BART′′) on so-called

′′BART-eligible sources,′′ a specified class of

large stationary pollution sources that had been

in operation since August 7, 1977. In American

Corn Growers Ass’n v.EPA, 351 U.S. App. D.C.

351, 291 F.3d 1 (D.C. Cir. 2002), we vacated

parts [***3] of § 308 because we found EPA’s

methods for determining BART inconsistent

with the Clean Air Act. Those aspects of the

Haze Rule remain pending before EPA on

remand.

HN2 Section 309 of the Haze Rule, however,

permitted states to reduce haze by alternative

Page 3 of 9

398 F.3d 653, *653; 365 U.S. App. D.C. 65, **65; 2005 U.S. App. LEXIS 2879, ***1

Ann Lyons
means, including a regional approach, so long as

the alternative would be ′′better than

BART′′--i.e., improve visibility more rapidly

than under BART. In the rule before us, which

implements the Haze Rule, EPA approved a

regional alternative. To determine whether the

rule was better than BART, EPA used a BART

methodology quite similar to the one American

Corn Growers condemned. On a challenge by

the Center for Energy and

EconomicDevelopment, representing a group of

pollution sources in the region, we find that the

similarity fatally taints EPA’s rule.

* * *

The disputed regulations in this case arise from

two amendments to the Clean Air Act. HN3

Section 169A, adopted in 1977, ′′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 [*655] [**67] impairment results from

manmade air pollution.′′ 42 U.S.C. § 7491(a)(1).

It [***4] instructed EPA to require covered

states to submit state implementation plans

(′′SIPs′′) that ′′contain such . . . measures as may

be necessary to make reasonable progress

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

7491(b)(2). In determining reasonable progress,

EPA was to consider four factors--′′the costs of

compliance, the time necessary for compliance, .

. . the energy and nonair quality environmental

impacts of compliance, and the remaining useful

life of any existing [regulated] source.′′ 42

U.S.C. § 7491(g)(1). In imposing BART

requirements on the states, EPA was to consider

those four factors, plus ′′the degree of

improvement in visibility which may reasonably

be anticipated to result from the use of such

technology.′′ 42 U.S.C. § 7491(g)(2).

On July 1, 1999 EPA promulgated the Haze

Rule--essentially 40 C.F.R §§ 51.308-51.309.

HN4 Section 308 sets out requirements for SIPs

to achieve natural visibility conditions by 2064.

40 C.F.R. § 51.308(d). In American Corn

Growers we addressed § 308(e)(1), which had

instructed states to measure the first four BART

factors by source, but to measure [***5] the

degree of anticipated visibility improvement by

area affected--in effect, by groups of sources

defined by area of impact. 40 C.F.R. §§

51.308(e)(1)(ii)(A)-(B). ′′To treat one of the five

statutory factors in such a dramatically different

fashion distorts the judgment Congress directed

the states to make for each BART-eligible

source.′′ American Corn Growers, 291 F.3d at 6.

As a result, we found, a state could be compelled

to impose BART on a source even if the

imposition would have ′′no appreciable effect on

the haze in any class I area.′′ Id. at 7. We

reversed and remanded, and the remand is now

pending before EPA.

HN5 Section 169B, adopted in 1990, expressed a

broadened congressional concern, instructing

EPA to research visibility impairment in national

parks and wilderness (′′Class I′′) areas. 42 U.S.C.

§ 7492(a)(1). It also directed EPA to ′′establish a

visibility transport commission for the region

affecting the visibility of the Grand Canyon

National Park.′′ 42 U.S.C. § 7492(f). One year

later, EPA created the Grand Canyon Visibility

Transport Commission (the ′′Commission′′) to

conduct research [***6] and recommend

remedial measures. The Commission submitted

recommendations to EPA in a 1996 report,

covering the Grand Canyon and fifteen other

Class I areas on the Colorado Plateau.

EPA pursued the implications of § 169B by

incorporating in the Haze Rule not only a BART

mandate but a regional alternative. It allowed

states ′′to implement an emissions trading

program or other alternative measure′′ so long as

the alternative would achieve ′′better than

BART′′ results. 40 C.F.R. §§ 51.308(e)(2),

51.309(a). HN6 Under § 309, the Commission,

or a regional body formed to implement a prior

Commission report, may opt for a regional

alternative by submitting an ′′annex′′ to that

report. If EPA approved the program described

in the annex, then any state among the nine

covered by the Commission could adopt the

program in lieu of the state-by-state

Page 4 of 9

398 F.3d 653, *654; 365 U.S. App. D.C. 65, **66; 2005 U.S. App. LEXIS 2879, ***3

Ann Lyons
requirements. See 40 C.F.R. § 51.309(f). EPA

approval would turn largely on whether the

regional alternative provides ′′greater reasonable

progress [toward natural visibility levels] than

would be achieved by [BART].′′ 40 C.F.R. §

309(f)(1)(i).

The Western Regional Air Partnership [***7]

(′′WRAP′′), a regional body formed to

implement the 1996 Commission report,

submitted an annex in September 2000. The

resulting plan has a number of important

similarities to and differences from the [*656]

[**68] program before us in American Corn

Growers. First, to develop ′′milestones′′ that

would meet the Haze Rule’s better-than-BART

standard, WRAP estimated BART’s likely

achievements with a methodology similar to

what we rejected in American Corn Growers. It

applied the four factors other than visibility

improvement by source category rather than

individually, but, just as had the approach

rejected in American Corn Growers, it measured

visibility improvement in terms of the

cumulative effect on particular Class I areas of

changes in emissions from all covered sources in

the ′′transport region.′′ See Annex, Attachment C

at C-4, C-11-12. Ultimately, ′′the milestones

were negotiated numbers,′′ see Annex Rule, 68

Fed. Reg. 33,764, 33,769/1 (June 5, 2003), but

these estimations were evidently a core basis for

the negotiations.

Second, the Annex doesn’t directly impose

restrictions on any sources. Rather, it sets

various emission limitation ′′milestones′′ that

steadily decline [***8] over time. If sources in

the aggregate fail to meet these milestones

′′voluntarily,′′ a backstop emissions trading

program will come into force. Under it, sources

may not emit the relevant pollutants in amounts

exceeding their entitlements--which they will

have received either via allotment from the state

or via trading. It was plausible that the trading

program would meet the better-than-BART

benchmark because it covers many sources

besides ones that are BART-eligible under the

statutes and § 308. And the provision for trading

presumably would reduce the cost for any given

level of emissions reduction. See generally Acid

Rain Program: General Provisions and Permits,

Allowance System, Continuous Emissions

Monitoring, Excess Emissions and

Administrative Appeals, 58 Fed. Reg. 3590 (Jan.

11, 1993).

EPA approved and promulgated the substantially

similar Annex Rule. 68 Fed. Reg. 33,764 (June

5, 2003).

The Center for Energy and

EconomicDevelopment, representing a group of

pollution sources in the region, petitions for

review. It argues that the EPA’s BART

benchmark is unlawful under our analysis in

American Corn Growers. After addressing

various preliminary [***9] issues, we grant the

petition.

* * *

EPA raises two jurisdictional objections to the

petition--that the petitioner lacks standing and

that our judgment in American Corn Growers

precludes review. We reject both.

HN7 Standing of course comprises the familiar

elements of injury in fact, causation, and

redressability, Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S.

Ct. 2130 (1992). EPA has posed several

objections to standing, some in its original brief

and another in a round of briefing that we

requested after oral argument. Initially EPA said

that the Annex Rule’s ′′voluntary′′ system of

trading emission allowances was more favorable

to the Center than are the ′′command and

control′′ § 308 BART rules that would otherwise

apply on remand from American Corn Growers.

Moreover, if the Center is correct that the Annex

Rule does not achieve enough visibility

improvement to constitute ′′reasonable

progress,′′ EPA reasoned that a rule meeting that

standard would necessarily be more stringent

and thus would only worsen the Center’s

burden.

Page 5 of 9

398 F.3d 653, *655; 365 U.S. App. D.C. 65, **67; 2005 U.S. App. LEXIS 2879, ***6

Ann Lyons
Both arguments fail. The Center rightly points

out that the Annex Rule requires immediate

compliance with certain reporting [***10]

requirements, subject to sanctions, so the rule

burdens the Center’s members now, which

normally is enough [*657] [**69] for standing.

See Sierra Club v. EPA, 352 U.S. App. D.C. 191,

292 F.3d 895, 900 (D.C. Cir. 2002). As to the

difference between § 308 and the Annex Rule,

EPA’s argument that the Annex Rule is

necessarily more lenient errs on two counts.

First, as between a § 308 that has not yet been

repromulgated, see 69 Fed. Reg. 25,184 (May 5,

2004), and a living Annex Rule, the injury from

the latter seems clear. Second, contrary to EPA’s

characterization, the Center’s complaint about

the method of calculating reasonable progress is

not that the Annex Rule is too lenient, but that, in

violation of American Corn Growers, it lacks

legally required evidence of attendant visibility

gains. The Center’s hope that both § 308 and the

Annex Rule will emerge from remand imposing

substantially lighter burdens on its members is

hardly chimerical. HN8 ′′Where an agency rule

causes the injury,′′ as here, ′′the redressability

requirement may be satisfied . . . by vacating the

challenged rule and giving the aggrieved party

the opportunity to participate in a new

rulemaking [***11] the results of which might

be more favorable to it.′′ America’s Community

Bankers v. FDIC, 339 U.S. App. D.C. 364, 200

F.3d 822, 828-29 (D.C. Cir. 2000).

Following oral argument, we invited the parties

to brief the issue whether any harm to the

Center’s members from the Annex could

properly be said to stem from EPA’s action. After

all, EPA’s rules offered the Annex as an optional

alternative to § 308, and for the moment § 308

languishes in unpromulgated limbo. State

pursuit of the Annex alternative is the direct

cause of injury to the Center’s members, and all

the states could, for a time, have refrained from

any action. EPA responded that as between §§

308 and 309, ′′the choice is left entirely to the

States,′′ four of which did not choose § 309.

Intervenors and seven amici states in support of

EPA also remind us that the western states

themselves initially provided the ′′blueprint′′ or

′′roadmap′′ for the Annex Rule. See Amicus

Supp. Br. at 4, Intervenors Supp. Br. at 6. ′′A

decision to strike the Annex Rule,′′ the amici

states observe, ′′would not prevent Western

States from adopting the same limitations in

order to achieve reasonable progress.′′ Amicus

Supp. Br. at [***12] 13; see also Resp. Supp. Br.

at 11-12.

The existence of state choice is in itself

immaterial. ′′’Your money or your life?’ calls for

a choice, but each option makes the recipient of

the offer worse off.′′ Henn v. Nat’l Geographic

Soc’y, 819 F.2d 824, 826 (7th Cir. 1987). Under

§ 309(f)(1) of the Haze Rule a state can, by filing

a valid annex with the Commission or

appropriate regional body, ′′satisfy the

requirements of § 51.308(b) through (e),′′ i.e.,

fulfill its otherwise applicable Haze Rule

obligations and avoid the trouble of expending

its own administrative resources to develop other

measures while BART remains pending before

EPA. The states’ choice, in other words, is

between one burden and another.

Nor does the states’ initiative in designing the

Annex undermine the inference that EPA’s

pressure has been decisive, much less prove that

the states acted spontaneously. The Annex Rule

addresses regional haze--′′air pollutants emitted

by numerous sources across a broad region′′ that

impair ′′visibility in the 16 Class I areas on the

Colorado Plateau.′′ 68 Fed. Reg. at 33,765.

Regional haze is a problem in which the benefits

of each state’s emissions [***13] controls are

largely felt in other states. Without federal

intervention, then, a state calculating how hard it

should press in limiting pollution has no

incentive to consider resulting enhancements of

other states’ welfare. There is no reason to

believe that New Mexico, for example, would

without federal pressure tighten limits for

in-state polluters an extra notch so that tourists

could gaze at clear skies [*658] [**70] above

the Grand Canyon. Even an anti-pollution

commitment demonstrated by ′′numerous

stakeholder meetings and public workshops

Page 6 of 9

398 F.3d 653, *656; 365 U.S. App. D.C. 65, **68; 2005 U.S. App. LEXIS 2879, ***9

Ann Lyons
across the West,′′ Intervenors Supp. Br. at 3, does

not explain why one state would, absent federal

pressure, martyr itself for another, or subject its

electric power users (for example) to additional

costs for the benefit of out-of-state interests. Cf.

Maryland People’s Counsel v. FERC, 245 U.S.

App. D.C. 365, 761 F.2d 768, 778 (D.C. Cir.

1985) (′′It is ridiculous to assume that′′ a

company would ′′engage in . . . self-sacrificing

behavior′′ ′′simply because there is nothing that

stops it from doing so′′). The western states,

though active, were not self-starting: ′′The

Commission was given the charge to . . .

address[] regional haze.′′ WRAP [***14]

Report, at I.B. (emphasis added).

As a result, the regulatory scheme ′′is at least a

substantial factor motivating the [states’]

actions,′′ and the Center alleges an injury to its

members that is ′′fairly traceable′′ to that scheme.

Tozzi v. HHS, 271 F.3d 301, 308, 350 U.S. App.

D.C. 40 (D.C. Cir. 2001) (quoting Cmty. for

Creative Non-Violence v. Pierce, 259 U.S. App.

D.C. 134, 814 F.2d 663, 669 (D.C. Cir. 1987)).

Moreover, as the western states are well aware, §

308’s days as an unpromulgated rule are

numbered. Nothing in American Corn Growers

suggests the contrary. Given zero prospect of

avoiding federal regional haze regulation

altogether, the states have reason to get ahead of

the game by devising their own plans, and

securing EPA approval, now. Under the Haze

Rule, states adopting a § 309 alternative must

submit their SIPs by December 31, 2003, five

years before states operating under § 308 must

submit theirs. 40 C.F.R. §§ 51.309(c), 51.308(b).

The amici states suggest that § 309’s

requirement of swifter action makes it less

appealing, showing--they suppose--that § 308

cannot [***15] have played a causal role. But

the distinction cuts the other way if the states

have reason to believe complying with § 309

will be more appealing, as it may well, at least in

part because the emissions trading program is

likely to enable sources to achieve the desired

cutbacks at lower total cost. Thus, even a state

believing that the BART rule emerging from

remand will be materially milder than its

predecessor could reasonably prefer the Annex

approach and would have a regulatory incentive

to jump now, for fear of losing the Annex option.

Cf. Block v. Meese, 253 U.S. App. D.C. 317, 793

F.2d 1303, 1308 (D.C. Cir. 1986) (finding

standing on a showing that agency action

′′created a disincentive′′ from which plaintiffs

suffered). So understood, the earlier § 309

deadline spurs states promptly to implement §

309 rather than wait for § 308 to reemerge from

remand.

EPA’s second jurisdictional challenge is that the

Center’s claims were ripe but defeated in

American Corn Growers, and are now

precluded. In particular, EPA objects to the

Center’s arguments regarding EPA’s statutory

authority to promulgate the Annex Rule, the

Annex Rule’s effect on state discretion, and

[***16] the Annex Rule’s compliance with §

309 reasonable progress goals. These purely

legal arguments, EPA contends, were ripe for

review when it promulgated the Haze Rule, as

that rule, especially §§ 308(e)(2) and 309(f), set

out the criteria for approving an Annex--criteria

the Annex Rule faithfully applied. EPA reads

American Corn Growers as having struck down

only the group BART provisions governing

BART imposition, not those governing BART

alternatives. As the Center neither sought

clarification nor petitioned for rehearing, EPA

regards this petition as a ′′back-door challenge′′

to the Haze Rule, Resp. Br. at 22, filed well past

the Clean Air Act’s sixty-day, post-publication

window. See 42 U.S.C. § 7607(b)(1).

[**71] [*659] The Center, by contrast, reads

American Corn Growers as concluding ′′that the

Haze Rule’s BART provisions are contrary to . .

. § 169A.′′ 291 F.3d at 8-9. By the Center’s

reading, we have already held §§ 308(e)(2) and

309(f) to be invalid ′′BART provisions′′ because

American Corn Growers did not distinguish

mandatory BART from BART alternatives.

Reply Br. at 10-11. Alternatively, the Center

argues that American Corn Growers implicitly

[***17] regarded issues revolving around §§

Page 7 of 9

398 F.3d 653, *658; 365 U.S. App. D.C. 65, **70; 2005 U.S. App. LEXIS 2879, ***13

Ann Lyons
308(e)(2) and 309(f) as unripe and therefore to

be dealt with in ′′a more choate situation in the

future.′′ Reply Br. at 12-13.

The exact parsing of American Corn Growers

has in the end no effect. While we limited the

decision carefully, ′′holding only that the Haze

Rule’s treatment of § 169A(g)(2)’s benefit

calculation and its infringement on states’

authority . . . render the BART provisions of the

rule impermissible,′′ 291 F.3d at 9, we gave no

intimation that a better-than-BART standard,

defined simply as achieving more rapid progress

than BART, could ever pass muster. On the other

hand, we never explicitly addressed

better-than-BART in the § 309 context, a

hesitation reasonably based on the possibility

that the BART benchmark used to calculate

′′better-than-BART′′ might in the end differ

materially from the original BART. See Nat’l

Park Hospitality Ass’n v. Dep’t of Interior, 538

U.S. 803, 812, 155 L. Ed. 2d 1017, 123 S. Ct.

2026 (2003) (facial challenge to a federal

regulation is unripe if it ′′relies on specific

characteristics of certain types of [disputed]

contracts to support [its] positions′′). As in fact it

did: recall [***18] that whereas the BART

calculation struck down in American Corn

Growers applied the first four factors by source,

the progress imputed from BART to support the

Annex ′′milestones′′ was estimated on the basis

of clusters of sources by source type. Either way

American Corn Growers is read, it plainly

forbade use of the original BART methodology

in any § 169A context. We thus turn to the

merits.

* * *

The Center’s first argument on the merits is that

§ 169A flatly bars the Annex Rule’s approach

insofar as it deviates from BART (correctly

conceived). Under section 169A(b)(2), EPA’s

regulations must require SIPs

HN9 to contain such emission limits,

schedules of compliance and other

measures as may be necessary to make

reasonable progress toward meeting

the national [visibility] goal . . .,

including--

(A) . . . a requirement that

each [BART-eligible source]

. . . shall [implement BART]

as determined by the State . .

. .

42 U.S.C. § 7491(b)(2). We review

EPA’s interpretation of this provision

under the standard framework of

Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467

U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct.

2778 (1984). [***19] Provided the

statute is ambiguous, we defer to the

agency’s interpretation as long as it is

reasonable.

The Center asserts that § 169A(b)(2) can be read

only one way. That is, each SIP’s constituent

measures must ′′include′′ BART. That the Annex

Rule--unlike § 169A--also applies to

BART-ineligible sources is no answer, the

Center insists, at least to the extent EPA applies

the Annex Rule to BART-eligible ones. The

Center also cites excerpts from the Clean Air

Act’s legislative history to suggest Congress did

not intend to give EPA a choice on whether to

include BART.

EPA, by contrast, sees ′′at least two permissible

interpretations′′ of § 169A(b)(2). Resp. Br. at 30.

One is the Center’s. The other is that each SIP’s

′′emission limits, schedules of compliance and

other measures′′ must ′′includee′′ [*660] [**72]

BART only ′′as may be necessary to make

reasonable progress toward′′ national visibility

goals. Id. (quoting 42 U.S.C. § 7491(b)(2)). If

WRAP’s alternatives would achieve greater

progress than BART, then BART would not be

′′necessary to make reasonable progress.′′ The

Ninth Circuit, EPA observes, upheld this reading

in Central Arizona Water Conservation District

v. EPA, 990 F.2d 1531, 1543 (9th Cir. 1993).

[***20]

Page 8 of 9

398 F.3d 653, *659; 365 U.S. App. D.C. 65, **71; 2005 U.S. App. LEXIS 2879, ***17

Ann Lyons
The Center never explains why EPA must detach

the ′′inclusion′′ of BART from the condition that

it be ′′necessary to make reasonable progress′′ to

national visibility goals. Nor can we discern a

reason. Moreover, the Center’s legislative

history references all pertain to § 169A.

Congress’s addition of § 169B, however,

clarified that the focus of the Clean Air Act was

to achieve ′′actual progress and improvement in

visibility,′′ 42 U.S.C. § 7492(b), not to anoint

BART the mandatory vehicle of choice. It is no

wonder, then, that § 169B(d)’s list of issues on

which any visibility transport commission is to

make assessments and reports, see 42 U.S.C. §

7492(d), includes no reference to BART at all.

Thus the Center has shown neither that

Congress’s language precluded non-BART

alternatives where BART wasn’t ′′necessary to

make reasonable progress,′′ nor that EPA’s

reading is otherwise unreasonable.

EPA nevertheless must rationally exercise its §

169A discretion to approve better-than-BART

SIPs. See 42 U.S.C. § 7607(d)(9)(A). The Center

argues that EPA did not, because American Corn

Growers invalidated ′′the key [***21] premise

on which EPA developed the Annex Rule--that

’better than BART’ means ’better than

group-BART,’′′ Pet. Br. at 37. The latter is the

Center’s label for the hybrid BART condemned

in American Corn Growers: evaluating prospects

of visibility improvement by reference to all

sources affecting an area, but evaluating the

other BART factors by reference to individual

plants or similar types of plants. Given that

WRAP developed the Annex using a variant of

pre-remand BART, the Center considers the

ensuing emission limitations irrational. In other

words, EPA cannot under § 309 require states to

exceed invalid emission reductions (or, to put it

more exactly, limit them to a § 309 alternative

defined by an unlawful methodology).

By EPA’s contrary reading, American Corn

Growers only invalidated group (or hybrid)

BART ′′when imposing BART on specific

sources.′′ Resp. Br. at 35. Whether this

distinction was relevant for purposes of ripeness,

EPA provides no reason why it signifies the

substantive difference EPA presses here. Once

installed, the Annex Rule is not merely

advisory--covered states impose its requirements

on the Center’s members. The less stringent §

308 BART is, [***22] the less stringent need be

the state requirements under § 309.

EPA makes no effort to distinguish the original

BART calculations from those employed in

choosing the Annex Rule’s ′′milestones.′′ This

omission was a sensible saving of paper. Though

the Annex Rule clustered sources by source type

in hypothesizing emissions reductions, it looked

to the impact of all emissions reductions to

estimate visibility progress, and thus remained a

hybrid.

Consequently, we do not reach the Center’s

additional objections to the Annex Rule’s impact

on state authority and implementation of § 169A

reasonable progress goals. The petition for

review is

Granted.

Page 9 of 9

398 F.3d 653, *660; 365 U.S. App. D.C. 65, **72; 2005 U.S. App. LEXIS 2879, ***20

Ann Lyons