User Name: Ann Lyons

Date and Time: 06/06/2014 1:13 PM EDT

Job Number: 10479909

Document(1)

1. Util. Air Regulatory Group v. EPA, 471 F.3d 1333

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 1:13 PM EDT

Util. AirRegulatoryGroup v. EPA

United States Court of Appeals for the District of Columbia Circuit

November 7, 2006, Argued ; December 12, 2006, Decided

No. 05-1353, Consolidated with Nos. 05-1354, 05-1357

Reporter: 471 F.3d 1333; 374 U.S. App. D.C. 85; 2006 U.S. App. LEXIS 30402; 63 ERC (BNA)

1481; 36 ELR 20246

UTILITY AIR REGULATORY GROUP,

PETITIONER V. ENVIRONMENTAL

PROTECTION AGENCY, RESPONDENT

Subsequent History: Costs and fees proceeding

at, Motion granted by Util. AirRegulatoryGroup

v. EPA, 2007 U.S. App. LEXIS 2948 (D.C. Cir.,

Feb. 7, 2007)

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

of a Final Action of the United States

Environmental Protection Agency.

Util. AirRegulatoryGroup v. EPA, 2006 U.S.

App. LEXIS 3132 (D.C. Cir., Feb. 8, 2006)

Core Terms

visibility, progress, impairment, emission, clean

air, mandatory, technology, install, air, degrade,

anticipate, retrofit, grower, corn, alternative

measure, oral argument, interstate, pollutant,

guideline, revise, plant

Case Summary

Procedural Posture

Multiple groups, including private groups (the

industry petitioners) and a national park

conservation association (the environmental

petitioner) challenged respondent Environmental

Protection Agency’s (EPA’s) promulgation of a

Regional Haze Rule, 40 C.F.R. § 51.308,

pursuant to § 169A of the Clean Air Act (CAA),

42 U.S.C.S. § 7491, requiring States to impose

best available retrofit technology (BART) on

stationary pollution sources.

Overview

The Haze Rule, as amended in 2005, was

intended to improve, by the year 2064, the

average visual range in natural parks and

wilderness areas designated as Class I Federal

areas, which was about 20 percent of what it

would have been under natural conditions. Both

the industry and the environmental petitioners

challenged the Rule as being either too rigorous

or too lenient, respectively. On review, the court

held that the Rule’s collective attribution process

did not require States to impose BART on power

plant sources that did not contribute to visibility

impairments. Also, the Rule’s guidelines for

State attribution determinations for power plants

were advisory, not mandatory, and did not

violate the ′′reasonable progress′′ criterion of 42

U.S.C.S. § 7491(a)(4) of the CAA. The court

rejected the environmental petitioner’s argument

that the EPA’s substitution of the Clean Air

Interstate Rule (CAIR), 70 Fed. Reg. 25,162

(May 12, 2005), for BART contravened the

CAA’s reasonable progress requirement. A

BART-alternative program such as CAIR was

not required to improve visibility as least as

much as BART at every Class I area in all

categories of days.

Outcome

The court denied the petitions for review filed by

the industry petitioners and the environmental

petitioner.

LexisNexis® Headnotes

Environmental Law > ... > Emission Standards >

Stationary Emission Sources > Hazardous Pollutants

Ann Lyons
Environmental Law > Air Quality > State

Implementation Plans

HN1 The Haze Rule permits States to implement

or require participation in an emissions trading

program or other alternative measure rather than

to require sources subject to best available

retrofit technology (BART) to install, operate,

and maintain BART. Such an emissions trading

program or other alternative measure must

achieve greater reasonable progress than would

be achieved through the installation and

operation of BART. 40 C.F.R. § 51.308(e)(2).

Environmental Law > ... > Emission Standards >

Stationary Emission Sources > Hazardous Pollutants

Environmental Law > Air Quality > State

Implementation Plans

HN2 See 40 C.F.R. § 51.308(e)(3).

Environmental Law > ... > Emission Standards >

Stationary Emission Sources > Hazardous Pollutants

Environmental Law > Air Quality > State

Implementation Plans

HN3 The Clean Air Interstate Rule, 70 Fed. Reg.

25,162 (May 12, 2005), imposes specified

emissions reduction requirements on each

affected State, and enables States to meet the

requirements by means of cap-and-trade

programs. 70 Fed. Reg. at 39,106/3.

Environmental Law > ... > Emission Standards >

Stationary Emission Sources > Hazardous Pollutants

Environmental Law > Air Quality > State

Implementation Plans

HN4 A State that opts to participate in the Clean

Air Interstate Rule, 70 Fed. Reg. 25,162 (May

12, 2005), cap-and trade program need not

require affected best available retrofit

technology (BART)-eligible electric generating

units to install, operate, and maintain BART. 40

C.F.R. § 51.308(e)(4); 70 Fed. Reg. 39,156/3.

Environmental Law > ... > Emission Standards >

Stationary Emission Sources > Hazardous Pollutants

Environmental Law > Air Quality > State

Implementation Plans

HN5 States must establish reasonable progress

goals for each mandatory Class I Federal area

located within a State, and such goals must

provide for an improvement in visibility for the

most impaired days and ensure no degradation in

visibility for the least impaired days. 40 C.F.R. §

51.308(d)(1).

Administrative Law > Judicial Review > Standards of

Review > Deference to Agency Statutory Interpretation

Environmental Law > Air Quality > State

Implementation Plans

HN6 The statutory goal enunciated in §

169A(a)(1) of the Clean Air Act, 42 U.S.C.S. §

7491(a)(1), is quite clear: the prevention of any

future, and the remedying of any existing,

impairment of visibility. 42 U.S.C.S. §

7491(a)(1). In order to meet this goal, the Clean

Air Act specifically calls for regulations to

assure that reasonable progress is made by the

States. 42 U.S.C.S. § 7491(a)(4). Because

reasonable progress is nowhere defined in the

Act itself, an appellate court reviews the

Environmental Protection Agency’s

interpretation of the term under the standard

Chevron framework and defers to the agency’s

interpretation so long as it is reasonable.

Environmental Law > ... > Emission Standards >

Stationary Emission Sources > Hazardous Pollutants

Environmental Law > Air Quality > State

Implementation Plans

HN7 Under the Haze Rule, 40 C.F.R. § 51.308,

′′reasonable progress′′ means that for each

mandatory Class I Federal area, States must

provide for an improvement in visibility for the

most impaired days and ensure no degradation in

visibility for the least impaired days over the

same period. 40 C.F.R. § 51.308(d)(1).

Moreover, unless there is some reasonable

excuse, this progress must be sufficient to attain

natural visibility conditions at every single Class

I area by the year 2064. 40 C.F.R. §

51.308(d)(1)(ii).

Environmental Law > ... > Emission Standards >

Stationary Emission Sources > Hazardous Pollutants

Environmental Law > Air Quality > State

Implementation Plans

Page 2 of 9

471 F.3d 1333, *1333; 374 U.S. App. D.C. 85, **85; 2006 U.S. App. LEXIS 30402, ***1

Ann Lyons
HN8 Section 169A(a)(1) of the Clean Air Act,

42 U.S.C.S. § 7491(a)(1), leaves wide discretion

about how the ′′reasonable progress′′ goal of the

Haze Rule, 40 C.F.R. § 51.308, is to be achieved.

The Environmental Protection Agency (EPA)

may leave States free to implement best

available retrofit technology (BART)

alternatives so long as those alternatives also

ensure reasonable progress. Moreover, nothing

in § 169A(b)’s ′′reasonable progress′′ language

requires at least as much improvement at each

and every individual area as BART itself would

achieve (much less improvement at each area at

every instant); and the EPA’s requirement of

some improvement at all areas on the worst days,

coupled with no degradation at any area on the

best days, 40 C.F.R. § 51.308(d)(1), appears a

reasonable notion of reasonable progress.

Environmental Law > ... > Emission Standards >

Stationary Emission Sources > Hazardous Pollutants

Environmental Law > Air Quality > State

Implementation Plans

HN9 The Environmental Protection Agency

allows use of a best available retrofit technology

(BART) alternative only if it combines aggregate

improvement (relative to BART) with universal,

area-specific absence of degradation. 40 C.F.R. §

51.308(e)(3). On this metric, the Clean Air

Interstate Rule, 70 Fed. Reg. 25,162 (May 12,

2005)-for-BART is far better than BART. 70

Fed. Reg. at 39,138-39,142.

Counsel: Peter S. Glaser argued the cause for

industry petitioners UtilityAirRegulatoryGroup

in Case No. 05-1353 and Center for Energy and

Economic Development in Case No. 05-1357.

With him on the briefs were Paul M. Seby,

Norman W. Fichthorn, Allison D. Wood, and

Mel S. Schulze.

Ann Brewster Weeks argued the cause for

environmental petitioner National Parks

Conservation Association in Case No. 05-1354.

With her on the briefs were Jonathan F. Lewis

and David W. Marshall.

Pamela S. Tonglao and Ammie Roseman-Orr,

Attorneys, U.S. Department of Justice, argued

the cause for respondent. With them on the brief

were John C. Cruden, Deputy Assistant Attorney

General, and M. Lea Anderson, Attorney, U.S.

Environmental Protection Agency.

Peter S. Glaser, Paul M. Seby, Norman W.

Fichthorn, Allison D. Wood, and Mel S. Schulze

were on the brief for industry intervenors

UtilityAirRegulatoryGroup and Center for

Energy and Economic Development in support

of respondent in Case No. 05-1354.

Judges: Before: GARLAND and BROWN,

Circuit Judges, and WILLIAMS, Senior Circuit

Judge. Opinion for the Court [***2] filed by

Senior Circuit Judge WILLIAMS.

Opinion by: WILLIAMS

Opinion

[*1334] [**86] WILLIAMS, Senior Circuit

Judge: In the eastern United States, the average

visual range in most natural parks and

wilderness areas designated as Class I Federal

areas, see 42 U.S.C. § 7472(a), is less than 30

kilometers, about 20 percent of what it would be

under natural conditions. See National Research

Council, Protecting Visibility in National Parks

and Wilderness Areas 1 (1993). In order to

address this problem, the Environmental

Protection Agency promulgated a Regional

[*1335] [**87] Haze Rule, 40 C.F.R. § 51.308,

pursuant to Section 169A of the Clean Air Act

(′′CAA′′), 42 U.S.C. § 7491. See Regional Haze

Regulations and Guidelines for Best Available

Retrofit Technology (BART) Determinations, 70

Fed. Reg. 39,104 (July 6, 2005) (the ′′Haze

Rule′′). The Haze Rule requires that under

specified circumstances states impose best

available retrofit technology (′′BART′′) on any

BART-eligible sources. The latter are a specific

class of large stationary pollution sources that

′′were put in place between August 7, 1962 and

August 7, 1977, and whose operations fall

[***3] within one or more of 26 specifically

listed source categories.′′ 70 Fed. Reg. at

39,105/1; see also 40 C.F.R. § 51.301. The

regulation calls for imposition of BART if the

Page 3 of 9

471 F.3d 1333, *1333; 374 U.S. App. D.C. 85, **85; 2006 U.S. App. LEXIS 30402, ***1

Ann Lyons
source ′′may reasonably be anticipated to cause

or contribute to any impairment of visibility in

any mandatory Class I Federal area.′′ 40 C.F.R. §

51.308(e)(1)(ii). The Haze Rule also permits

states to reduce haze by alternate means,

including a regional approach, so long as the

alternative would be ′′better-than-BART′′--i.e.,

would improve visibility more rapidly than

under BART. 40 C.F.R. § 51.308(e)(2). Aspects

of the Haze Rule have been before this court

twice before, Center for Energy and Economic

Development v. E.P.A., 365 U.S. App. D.C. 65,

398 F.3d 653 (D.C. Cir. 2005) (′′CEED′′);

American Corn Growers Ass’n v. E.P.A., 351

U.S. App. D.C. 351, 291 F.3d 1 (D.C. Cir. 2002)

(′′Corn Growers′′), and those opinions contain

extensive discussions of the rule’s statutory

framework and regulatory history.

This case involves challenges from multiple

groups, including the Center for Energy and

Economic [***4] Development and the

UtilityAirRegulatoryGroup (′′industry

petitioners′′), and the National Parks

Conservation Association (′′environmental

petitioner′′). In its brief, EPA succinctly

summarizes the challenges: ′′Industry Petitioners

generally challenge the rule as inappropriately

requiring States to apply BART to too many

sources, while the Environmental Petitioner

argues that the rule improperly allows States to

exempt too many sources from BART.′′ Because

we believe the Haze Rule is a reasonable

interpretation of CAA § 169A, we affirm the rule

against both sets of challenges.

* * *

As we explained in Corn Growers, § 169A(a)(1)

of the Clean Air Act established a national goal

of preventing and remedying existing visibility

impairment at Class I areas, and CAA §

169A(b)(2) directs EPA to issue regulations

requiring that states adopt measures--including

BART--to make ′′reasonable progress′′ towards

meeting this national goal. See Corn Growers,

291 F.3d at 5-6.

As outlined in § 169A(b)(2)(A) and implemented

by the Haze Rule, the BART process consists of

two steps. First, in the ′′Attribution Step′′ (′′Step

I′′), states must review each ′′BART-eligible

source′′ within [***5] the state to determine

whether any such source emits ′′any air pollutant

which may reasonably be anticipated to cause or

contribute to any impairment of visibility in any

mandatory Class I Federal area;′′ sources that do

so are ′′subject to BART.′′ See 40 C.F.R. §

51.308(e)(1)(ii). An earlier preamble to the Haze

Rule required states to ′′find that a

BART-eligible source is ’reasonably anticipated

to cause or contribute’ to regional haze if it can

be shown that the source emits pollutants within

a geographic area from which pollutants can be

emitted and transported downwind to a Class I

area,′′ an approach known as ′′collective

contribution.′′ Regional Haze Regulations, 64

Fed. Reg. 35,714, 35,740/1 (July 1, 1999). In

Corn Growers we struck down such guidance as

′′inconsistent with the Act’s provisions giving

the states broad authority over BART

determinations.′′ 291 F.3d at 8 (emphasis added).

In doing so, however, we did not foreclose the

[*1336] [**88] states themselves from

deciding to take a collective approach in the

Attribution Step, see id. at 18 (Garland, J.,

dissenting on other grounds), and the current

rule identifies ′′collective [***6] contribution′′

as only one of at least three different approaches

that a state may take in meeting its obligations

under CAA § 169A(b)(2)(A). See 70 Fed. Reg. at

39,117/2. Under the current Haze Rule, a state

can complete the Attribution Step by using

collective attribution, by demonstrating that,

cumulatively, none of its BART-eligible sources

contributes to visibility impairment, or by

analyzing each source’s individual contribution.

Id. States ′′may also use other reasonable

approaches for analyzing the visibility impacts

of an individual source or group of sources.′′ 70

Fed. Reg. at 39,162/1.

The second step outlined in § 169A(b)(2)(A), the

′′Determination Step′′ (′′Step II′′), requires states

to determine the particular technology that an

individual source ′′subject to BART′′ must

install. That determination requires

consideration of five factors: ′′the cost of

Page 4 of 9

471 F.3d 1333, *1335; 374 U.S. App. D.C. 85, **87; 2006 U.S. App. LEXIS 30402, ***3

Ann Lyons
compliance, the energy and nonair quality

environmental impacts of compliance, any

existing pollution control technology in use at

the source, the remaining useful life of the

source, and the degree of improvement in

visibility which may reasonably be anticipated to

result from the use of such technology. [***7] ′′

42 U.S.C. § 7491(g)(2); see also 40 C.F.R. §

51.308(e)(1)(ii); 70 Fed. Reg. at 39,163/3. In

Corn Growers, we held that these five factors

′′were meant to be considered together by the

states,′′ 291 F.3d at 6, but that EPA could not

require the states to evaluate the improvement

factor collectively while mandating that the

other four factors be evaluated separately for

each individual source. Compare id. at 8 with id.

at 8-9.

BART is not, however, the sole means by which

states can meet their obligations under the Clean

Air Act. HN1 The Haze Rule also permits states

to implement or require participation

in an emissions trading program or

other alternative measure rather than

to require sources subject to BART to

install, operate, and maintain BART.

Such an emissions trading program or

other alternative measure must achieve

greater reasonable progress than

would be achieved through the

installation and operation of BART.

40 C.F.R. § 51.308(e)(2). We affirmed the

use of such ′′better than BART′′ approaches

in CEED, though we objected to the

particular program [***8] under review

there. See CEED, 398 F.3d at 660. We said

nothing about how better-than-BART might

be measured.

After our CEED decision, EPA introduced the

following test to evaluate whether a

BART-alternative achieves ′′greater reasonable

progress′′ than BART:

HN2 If the distribution of emissions is

not substantially different than under

BART, and the alternative measure

results in greater emission reductions,

then the alternative measure may be

deemed to achieve greater reasonable

progress. If the distribution of

emissions is significantly different, the

State must conduct dispersion

modeling

. . . . The modeling would demonstrate

′′greater reasonable progress′′ if both

of the following two criteria are met:

(i) Visibility does not

decline in any Class I area,

and

(ii) There is an overall

improvement in visibility,

determined by comparing

the average differences

between BART and the

alternative over all affected

Class I areas.

40 C.F.R. § 51.308(e)(3).

On March 10, 2005, EPA issued the Clean Air

Interstate Rule (′′CAIR′′), requiring

[*1337] [**89] reductions in emissions of

sulfur dioxide and nitrogen oxides in 28 eastern

[***9] states and the District of Columbia. 70

Fed. Reg. 25,162 (May 12, 2005); see also 70

Fed. Reg. at 39,106/3. HN3 CAIR imposes

specified emissions reduction requirements on

each affected state, and enables states to meet the

requirements by means of cap-and-trade

programs. 70 Fed. Reg. at 39,106/3. In

conjunction with the introduction of CAIR, EPA

amended the Haze Rule to add a new

regulation-contested here-providing that ′′[HN4

a] State that opts to participate in the Clean Air

Interstate Rule cap-and trade . . . program . . .

need not require affected BART-eligible EGUs

[electric generating units] to install, operate, and

maintain BART.′′ 40 C.F.R. § 51.308(e)(4); 70

Fed. Reg. 39,156/3]; see also 70 Fed. Reg.

39,138-39 (noting that the CAIR-for-BART

comparison is to be evaluated under the

Page 5 of 9

471 F.3d 1333, *1336; 374 U.S. App. D.C. 85, **88; 2006 U.S. App. LEXIS 30402, ***6

Ann Lyons
standards enumerated in § 51.308(e)(3)); 70 Fed.

Reg. 39,142/3 (same).

In adopting the current version of § 51.308(e)(4),

EPA provided analyses demonstrating that CAIR

would achieve greater overall emission

reductions than BART, and would make greater

reasonable progress according to the

two-pronged [***10] visibility test outlined in §

51.308(e)(3)--i.e., that CAIR would result in a

greater aggregate visibility improvement (than

BART) averaged over all Class I areas without

reducing visibility at any individual area. See 70

Fed. Reg. at 39,136; see also Technical Support

Document for the Final Clean Air Interstate

Rule, March, 2005, at http://www.epa.gov/cair/

pdfs/finaltech04.pdf (′′CAIR TSD′′). In doing so,

however, EPA also noted that the ′′determination

that CAIR makes greater reasonable progress

than BART for EGUs is not a determination that

CAIR satisfies all reasonable progress

requirements in CAIR affected States . . . . [A

state] cannot assume that CAIR will satisfy all of

its visibility-related obligations.′′ 70 Fed. Reg. at

39,143/3. In particular, despite the rule changes

reflecting CAIR, the EPA retained a regulation

specifying that HN5 states must establish

reasonable progress goals ′′[f]or each mandatory

Class I Federal area located within [a] State,′′

and that such goals must ′′provide for an

improvement in visibility for the most impaired

days . . . and ensure no degradation in visibility

for the least impaired days . . . .′′ 40 C.F.R. §

51.308(d)(1) [***11] (emphasis added).

On October 13, 2006, EPA once again

promulgated revisions to the Haze

Rule--revisions for some reason not called to our

attention by any of the lawyers in this case. See

Revisions to Provisions Governing Alternative to

Source-Specific Best Available Retrofit

Technology (BART) Determinations, 71 Fed.

Reg. 60,612 (Oct. 13, 2006). Those revisions

largely appear to respond to this court’s decision

in CEED. For example, the new rule both

clarifies the process by which BART-alternatives

are to be compared to BART and provides

minimum elements for cap-and-trade programs

adopted in lieu of BART. Id. at 60,612. But as

the new rule does not become effective until

December 12, 2006, and was not briefed or even

mentioned by counsel, its specifics are not under

consideration here. Our own perusal hasn’t

uncovered any changes undermining our

conclusions; in fact, in at least one instance

(discussed below), the new rule corresponds

with concessions that EPA made at oral

argument but not in its original briefs to this

court.

* * *

Industry petitioners argue that EPA acted

contrary to statutory authority in two respects:

first, by authorizing a [***12] state to infer,

from evidence that its BART-eligible sources

collectively contribute to [*1338] [**90]

visibility impairment in at least one Class I area,

that all such sources may reasonably be

anticipated to cause or contribute to visibility at

such an area, without a source-by-source

analysis--i.e., by authorizing the use of

collective attribution-and, second, by issuing

mandatory guidelines for the states’ attribution

determinations for power plants exceeding 750

megawatts (′′MW′′). We reject both arguments.

Industry petitioners claim that the collective

attribution process allows states virtually to skip

the Attribution Step; ′′once a State finds that a

single BART-eligible source in the State affects

visibility in a Class I area, other BART-eligible

sources in the State may be swept into the BART

Determination process without any analysis as to

their effect on visibility.′′ This is true, but

because the substance of the impact issue

remains open in Step II, it is of little

consequence (with one exception, described

below).

Industry petitioners’ valid concern is that

collective attribution will force sources to install

BART even when such installations would serve

no purpose whatsoever. But [***13] this fear is

unwarranted. As EPA openly conceded at oral

argument, if an individual source is found

Page 6 of 9

471 F.3d 1333, *1337; 374 U.S. App. D.C. 85, **89; 2006 U.S. App. LEXIS 30402, ***9

Ann Lyons
subject to BART in Step I because of collective

attribution, that source can nonetheless

challenge the necessity of installing BART in

Step II--and have the impact issue resolved de

novo. See Transcript of Oral Argument at 19-20.

Recall that Step II involves the weighing of five

factors, the last of which is the visibility impact

of imposing BART. If that impact is zero because

the source does not contribute to visibility

impairment in the first place, then the source

need not impose BART, regardless of the results

dictated by the other four factors or the use of

collective attribution in Step I. Counsel for EPA,

commenting in oral argument on the passage in

EPA’s description of the BART determination

process that industry found most alarming

(′′States, as a general matter, must require

owners and operators of greater than 750 MW

power plants to meet these BART emission

limits,′′ 70 Fed. Reg. at 39,131/3), repeatedly

confirmed that a finding of zero impact at this

stage would trump the four remaining factors

and excuse the application of BART. See

Transcript of Oral Argument [***14] at 17.

(This interpretation is in part paralleled in the

October 13 revisions to the Haze Rule: ′′Where a

State takes this approach [i.e., collective

attribution], the opportunity for assessing

source-by-source visibility impact would still

remain at the next step of setting the

benchmark--the BART determination analysis.′′

71 Fed. Reg. at 60,615/2.) We adopt counsel’s

interpretation as our own understanding of the

interplay between Steps I and II of the Haze Rule

and between the impact criterion and the other

factors.

That individual sources found subject-to-BART

under collective attribution can nonetheless

challenge the necessity of installing BART at the

Determination Step does not render collective

attribution a meaningless exercise. By setting a

low threshold above which sources ′′may

reasonably be anticipated to cause or contribute

to any impairment,′′ CAA § 169A(b)(2)(A),

collective attribution essentially places on a

source itself the burden of demonstrating that it

doesn’t contribute to visibility impairment. At

oral argument, counsel for industry disclaimed

any legal quarrel with EPA’s assignment of the

burden. See Transcript of Oral Argument at 12,

24. We find [***15] EPA’s interpretation

reasonable as against industry’s challenges.

Industry petitioners’ second argument is that

EPA’s guidelines for state attribution

determinations for power plants exceeding 750

MW are mandatory for the states,

[*1339] [**91] contrary to industry’s reading

of the statute. But the industry briefs point to no

such mandatory language. It is surely true that

several elements of the Haze Rule purport to

establish mandatory guidelines as to the

Determination Step of the process. See, e.g., 70

Fed. Reg. at 39,131/3. Moreover, some passages

identified in the briefs are ambiguous as to the

force of EPA’s provisions. See, e.g., 70 Fed.

Reg. at 39,123 (′′In the unlikely case that a State

were to find that a 750 MW power plant’s

predicted contribution to visibility impairment is

within a very narrow range between exemption

from or being subject to BART, that the State can

work with EPA . . . .′′). 70 Fed. Reg. at 39,123/2.

EPA’s brief, though not focusing on this passage,

argued that these attribution guidelines were

′′advisory, not mandatory, as to all sources,

including 750 megawatt power plants.′′ There

appears to be no language in the rule which

[***16] contradicts this claim; having defended

the regulations on the basis that they are

advisory here, EPA cannot later rely on a reading

that they are mandatory. Of course states must

still meet EPA’s explicit--if rather

general--requirement of a State Implementation

Plan (′′SIP′′) that can satisfy the statute’s

reasonable progress criterion, as construed by

EPA. See 42 U.S.C. § 7491(b)(2) (requiring

states to submit SIPs containing emission limits,

schedules of compliance, and other measures

necessary to make reasonable progress toward

meeting the national visibility goal). But we do

not understand industry to argue that such

indirect compulsion violates the statute.

* * *

The environmental petitioner argues that EPA’s

substitution of CAIR for BART contravenes the

Page 7 of 9

471 F.3d 1333, *1338; 374 U.S. App. D.C. 85, **90; 2006 U.S. App. LEXIS 30402, ***13

Ann Lyons
language and structure of the Clean Air Act

because it cannot guarantee ′′reasonable

progress′′ at all Class I areas. This argument is

predicated on a belief that the Clean Air Act

requires that BART-alternatives such as CAIR

′′do better′′ than BART at each individual Class

I area (as opposed to simply in the aggregate),

and, evidently, on every type of day (best days,

worst days, etc.).

EPA’s preliminary [***17] response is that

environmental petitioner lacks standing because

it has not been (and will not be) injured by the

CAIR-for-BART rule. But EPA’s own evidence

shows the likelihood that states will adopt CAIR

and that CAIR will be less effective at a few

areas on some days. When CAIR was first

introduced EPA noted that ′′[b]ased on our

experience . . . we anticipate that States will

choose to require EGUs to participate in the cap

and trade programs administered by EPA.′′ 69

Fed. Reg. 4,566, 4,586/3 (Jan. 30, 2004). EPA’s

technical analysis of CAIR then went on to

predict that, at three (out of 156) Class I areas,

such participation would result in visibility

improvements on the best 20% of days that are

less than the expected improvements at those

areas under BART. See CAIR TSD 18. (The

same analysis shows equal or superior visibility

at all Class I areas on the 20% worst days. See

id. at 23.)

Those findings, of course, do not in themselves

show that petitioners’ members will travel to the

parks likely to be negatively impacted by the

CAIR-for-BART Rule. Indeed, petitioner’s

affidavits do not clearly indicate that its

members visit every park, let alone that [***18]

they visit the three operative parks on the best

20% of days. But given the organization’s large

membership--over 320,000 members in all 50

states--we find it reasonable to infer that at least

one member will suffer injury-in-fact. We do so

with some hesitation, however. While some

judicial opinions purport to reject reliance on

mathematical likelihood, see, e.g., Sargent v.

Mass. Accident [*1340] [**92] Co., 307 Mass.

246, 29 N.E.2d 825, 827 (Mass. 1940) (′′It has

been held not enough that mathematically the

chances somewhat favor a proposition to be

proved′′), that viewpoint overlooks the reality

that all empirical issues are matters of

probability. But it is at least an imposition for a

party to force courts to rely on statistical

inference when the party presumably has better

evidence within easy reach--here, a member’s

affidavit showing a high individualized

probability of future visits to a particular park

(presumably based on a pattern of past visits).

Cf. United States v. Veysey, 334 F.3d 600, 605

(7th Cir. 2003). Nevertheless, the size of

petitioner’s membership appears large enough

here to indicate substantial probability of injury.

Having found that petitioner [***19] has

standing, we nonetheless squarely reject its

claim that the Clean Air Act requires EPA to

ensure that any BART-alternative improves

visibility at least as much as BART at every

Class I area and in all categories of days. The

plain language of the Act imposes no such

mandate, and EPA’s refusal to read one in is

reasonable.

As we said in Corn Growers, ′′[HN6 t]he

statutory goal enunciated in [CAA] § 169A(a)(1)

is quite clear: ’the prevention of any future, and

the remedying of any existing, impairment of

visibility.’′′ 291 F.3d at 10 (citing 42 U.S.C. §

7491(a)(1)). In order to meet this goal, the Clean

Air Act specifically calls for regulations to

assure that ′′reasonable progress′′ is made by the

states. 42 U.S.C. § 7491(a)(4). Because

′′reasonable progress′′ is nowhere defined in the

Act itself, we review EPA’s interpretation of the

term under the standard framework of Chevron

U.S.A. Inc. v. NRDC, 467 U.S. 837, 104 S. Ct.

2778, 81 L. Ed. 2d 694 (1984), and defer to the

agency’s interpretation so long as it is

reasonable.

Recall that HN7 under the Haze Rule reasonable

progress means that [***20] ′′[f]or each

mandatory Class I Federal area . . . [states] must

provide for an improvement in visibility for the

most impaired days . . . and ensure no

Page 8 of 9

471 F.3d 1333, *1339; 374 U.S. App. D.C. 85, **91; 2006 U.S. App. LEXIS 30402, ***16

Ann Lyons
degradation in visibility for the least impaired

days over the same period.′′ 40 C.F.R. §

51.308(d)(1) (emphasis added). Moreover,

unless there is some reasonable excuse, this

progress must be sufficient to attain natural

visibility conditions at every single Class I area

by 2064. 40 C.F.R. § 51.308(d)(1)(ii). Indeed,

EPA emphasized in its briefs that because ′′the

regulatory scheme as a whole (and all the

regulations promulgated pursuant to it) must be

designed to achieve the goal [of reasonable

progress] at every Class I area,′′ EPA Br. at 66

(emphasis added), states must, if CAIR is

substituted for BART and is not likely to achieve

that goal, take ′′other measures as necessary to

achieve reasonable progress goals including at

each Class I area,′′ id. at 67 (emphasis added).

Thus, EPA not only agrees with petitioner that

CAA § 169A(a)(1)’s declaration of a ′′national

goal′′ that includes ′′the remedying of any

existing [] impairment of visibility . . . [***21]

[that] results from manmade air pollution′′

implies a need for ubiquitous improvement over

time (emphasis added), but it has adopted

regulations manifesting that goal.

Nonetheless, HN8 the Clean Air Act leaves wide

discretion about how the goal is to be achieved.

Notwithstanding the Act’s discussion of BART

in § 169A(b), we have already held in CEED that

EPA may leave states free to implement

BART-alternatives so long as those alternatives

also ensure reasonable progress. 398 F.3d at 660.

Moreover, nothing in § 169A(b)’s ′′reasonable

progress′′ language requires at least as much

improvement at each and every individual area

as BART itself would achieve (much less

improvement at each [*1341] [**93] area at

every instant); and EPA’s requirement of some

improvement at all areas on the worst days,

coupled with no degradation at any area on the

best days, 40 C.F.R. § 51.308(d)(1), appears a

reasonable notion of reasonable progress.

Finally, HN9 EPA allows use of a BART

alternative only if it combines aggregate

improvement (relative to BART) with universal,

area-specific absence of degradation, 40 C.F.R. §

51.308(e)(3); on this metric CAIR-for-BART

[***22] is far better than BART. 70 Fed. Reg.

at 39,138-39,142.

Petitioner also appears to argue that the origin of

CAIR in other clean air programs precludes

EPA’s decision to allow states the CAIR option

in fulfillment of § 169A. But petitioner identifies

no language requiring EPA to impose a separate

technology mandate for sources whose

emissions affect Class I areas, rather than

piggy-backing on solutions devised under other

statutory categories, where such solutions meet

the statutory requirements.

The petitions for review are therefore

Denied.

Page 9 of 9

471 F.3d 1333, *1340; 374 U.S. App. D.C. 85, **92; 2006 U.S. App. LEXIS 30402, ***20

Ann Lyons