FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILDEARTH GUARDIANS,

Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION

AGENCY; GINA MCCARTHY, in her

official capacity as Administrator of

the U.S. Environmental Protection

Agency,

*

Respondents,

SIERRA PACIFIC POWER COMPANY;

NEVADA POWER COMPANY; THE

STATE OF NEVADA, DIVISION OF

ENVIRONMENTAL PROTECTION,

Respondents-Intervenors.

No. 12-71523

OPINION

On Petition for Review of an Order of the

Environmental Protection Agency

Argued and Submitted

May 14, 2014—San Francisco, California

* Gina McCarthy is substituted for her predecessor, Lisa P. Jackson, as

Administrator ofthe U.S. Environmental Protection Agency. Fed. R. App.

P. 43(c)(2).
2 WILDEARTH GUARDIANS V. USEPA

Filed July 17, 2014

Before: M. Margaret McKeown and Milan D. Smith, Jr.,

Circuit Judges, and James L. Robart, District Judge.**

Opinion by Judge Milan D. Smith, Jr.

SUMMARY***

Environmental Law

The panel dismissed in part and denied in part a petition

for review of the Environmental Protection Agency’s

approval of the State of Nevada’s State Implementation Plan

for regional haze under the Clean Air Act.

WildEarth Guardians, a non-profit environmental

organization, alleged that Nevada’s State Implementation

Plan (SIP) was inadequate, and the EPA’s decision to approve

it was arbitrary and capricious.

The panel held that WildEarth Guardians lacked Article

III standing to challenge the EPA’s approval of the SIP’s

formulation of reasonable progress goals for improving

visibility conditions in the Jarbridge Wilderness Area in

northeastern Nevada. The panel also held that WildEarth

** The Honorable James L. Robart, District Judge for the U.S. District

Court for the Western District of Washington, sitting by designation.

 

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
WILDEARTH GUARDIANS V. USEPA 3

Guardians had standing to challenge the EPA’s decision to

approve Nevada’s Sulfur Dioxide Best Available Retrofit

Technology determination for the Reid Gardner Generating

Station in southern Nevada, but concluded that the EPA’s

decision was not arbitrary and capricious. The panel further

concluded that the EPA’s approval of Nevada’s SIP did not

violate any requirements imposed by 42 U.S.C. § 7410(1).

COUNSEL

SarahK.McMillan (argued), WildEarth Guardians, Missoula,

Montana; James J. Tutchton, WildEarth Guardians,

Centennial, Colorado; Melissa A. Hailey, W. Randolph

Barnhart, P.C., Denver, Colorado, for Petitioner.

David A. Carson (argued), United States Department of

Justice, Environment and Natural Resources Division,

Denver, Colorado, for Respondents.

Lisa E. Jones (argued), Samuel B. Boxerman, and James R.

Wedeking, Sidley Austin LLP, Washington, D.C.; Thomas

Woodworth, NV Energy, Inc., Las Vegas, Nevada, for

Respondents-Intervenors Nevada Power Companyand Sierra

Pacific Power Company.

Belinda A. Suwe (argued), Carson City, Nevada, for

Respondent-Intervenor State of Nevada, Department of

Conservation and Natural Resources, Division of

Environmental Protection.
4 WILDEARTH GUARDIANS V. USEPA

OPINION

M. SMITH, Circuit Judge:

WildEarth Guardians (WildEarth), a non-profit

environmental organization, petitions for review of the

Environmental Protection Agency’s (EPA) approval of the

State of Nevada’s State Implementation Plan (SIP) for

regional haze under the Clean Air Act, 42 U.S.C.

§§ 7401–7671q (CAA). According to WildEarth, Nevada’s

SIP is inadequate, and the EPA’s decision to approve it was

arbitrary and capricious. WildEarth thus contends that the

EPA should have instead developed its own Federal

Implementation Plan (FIP) under the CAA.

We conclude that WildEarth lacks Article III standing to

challenge the EPA’s approval of the SIP’s formulation of

reasonable progress goals for improving visibility conditions

in the Jarbridge Wilderness Area in northeastern Nevada. 

While WildEarth has standing to challenge the EPA’s

decision to approve Nevada’s Sulfur Dioxide (SO2) Best

Available Retrofit Technology (BART) determination for the

Reid Gardner Generating Station (Reid Gardner) in southern

Nevada, we hold that the EPA’s decision was not arbitrary

and capricious. We further conclude that the EPA’s approval

of Nevada’s SIP did not violate any requirements imposed by

42 U.S.C. § 7410(l). Accordingly, we dismiss the petition for

review in part and deny the petition in part.

LEGAL, FACTUAL, AND PROCEDURAL

BACKGROUND

This petition for review concerns states’ duty under the

CAA to develop plans aimed at improving visibility in
WILDEARTH GUARDIANS V. USEPA 5

“mandatory Class I Federal areas,” such as national

wilderness areas and certain national parks, 40 C.F.R.

§ 51.308, and the EPA’s concomitant duty to ensure that such

plans are legally adequate.

I. Statutory and Regulatory Framework

In 1977, Congress enacted Section 169A of the CAA,

which established “as a national goal the prevention of any

future, and the remedying of any existing, impairment of

visibility in mandatory [C]lass I Federal areas which

impairment results from manmade air pollution.” 42 U.S.C.

§ 7491(a)(1).

A. Implementation Plans

Under the CAA, the EPA must establish national ambient

air quality standards (NAAQS) for certain air pollutants. The

EPA must also promulgate regulations designed to prevent

the impairment of visibility in “mandatory [C]lass I Federal

areas,” including national wilderness areas and certain

national parks. 42 U.S.C. §§ 7491(a)–(b), 7492(e). To

ensure that these standards are met, the CAA requires each

state to submit a SIP to the EPA, which must “contain such

emission limits, schedules of compliance, and other measures

as may be necessary to carry out” the EPA’s applicable

regulations. Id. § 7492(e)(2).

Once a state has submitted its SIP to the EPA, the EPA

reviews it for compliance with the CAA. Id. § 7410(k)(3). If

a state fails to submit a SIP, or if the EPA concludes that a

SIP is inadequate, then the EPA must promulgate a FIP

within two years. Id. § 7410(c).
6 WILDEARTH GUARDIANS V. USEPA

B. Regional Haze Provisions

As noted above, Congress amended the CAA in 1977 and

“declare[d] as a national goal the prevention of any future,

and the remedying of any existing, impairment of visibility in

mandatory [C]lass I Federal areas which impairment results

from manmade air pollution.” Id. § 7491(a)(1). To this end,

Congress required the EPA to issue regulations assuring

“reasonable progress toward meeting the national goal.” Id.

§ 7491(a)(4).

Acting under this statutory authority, the EPA

promulgated the Regional Haze Rule in 1999. Regional Haze

Regulations, 64 Fed. Reg. 35714 (July 1, 1999). This rule

required states to submit regional haze SIPs to the EPA by

December 17, 2007. It also requires states to submit SIP

revisions to the EPA by July 31, 2018, and every ten years

thereafter. 40 C.F.R. § 51.308(f).

1. Reasonable Progress Goals

The Regional Haze Rule directs states to establish

reasonable progress goals aimed at achieving natural

visibility conditions in Class I Federal areas. 40 C.F.R.

§ 51.308(d)(1). These goals must provide for an

improvement in visibility for the days in which visibility is

most impaired over the period ending on July 31, 2018 (worst

days), and must also ensure no worsening of visibility during

the least impaired days over the course of that period (best

days). Id.
WILDEARTH GUARDIANS V. USEPA 7

2. BART

In addition to requiring states to establish reasonable

progress goals for improving visibility in Class I Federal

areas, the Regional Haze Rule requires SIPs to “contain[]

emission limitations representing BART . . . for each BARTeligible source that 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). As defined in

the regulations, BART is “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.” 

Id. § 51.301.

Under the regulations, a pollution source is “BARTeligible” only if it “has the potential to emit 250 tons per year

or more of any air pollutant.” Id. States must formulate

emission limitations for such sources on a case-by-case basis,

weighing the following five factors: (1) “the costs of

compliance”; (2) “the energy and non[-]air quality

environmental impacts of compliance”; (3) “any existing

pollution control technology in use at the source”; (4) “the

remaining useful life of the source”; and (5) “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); Regional Haze Regulations and

Guidelines for BART Determinations, 70 Fed. Reg. 39104,

39106–07 (July 6, 2005) (codified at 40 C.F.R. pt. 51,

App. Y).

To assist states in evaluating which pollution sources are

subject to BART, and what emission limitation to set for such

sources, the EPA issued the BART Guidelines (Guidelines)
8 WILDEARTH GUARDIANS V. USEPA

in 2005. 70 Fed. Reg. at 39156–72. The Guidelines provide

states with a five-step process for making their case-by-case

BART determinations. These five steps subsume the five

statutory factors listed above. Id. at 39127. First, states

identify all available retrofit control technologies. Second,

states eliminate technically infeasible options. Third, states

evaluate the effectiveness of the remaining control

technologies. Fourth, states evaluate the impacts, including

the cost of compliance, the energy impacts, any non-air

quality impacts, and the remaining useful life of the facility. 

Finally, states evaluate the visibility impacts. Id. at 39164,

39166.

States must use the Guidelines when making BART

determinations for fossil fuel-fired power plants with a total

generating capacity greater than 750 megawatts, but the

Guidelines are merely advisory for smaller plants. 42 U.S.C.

§ 7491(b)(2)(B); 40 C.F.R. § 51.308(e)(1)(ii)(B). The

BART-eligible power plant at issue here—Reid Gardner—

has a generating capacity below 750 megawatts, and so is not

subject to the mandatory Guidelines. Approval and

Promulgation of Air Quality Implementation Plans, 76 Fed.

Reg. 36450, 36463 (June 22, 2011). Nonetheless, Nevada

relied on the Guidelines in making its SO2 BART

determination for Reid Gardner.

II. Factual and Procedural Background

Nevada submitted its regional haze SIP to the EPA in

October 2009, nearly two years after the deadline for doing

so. In its SIP, Nevada provides what it considers to be

reasonable progress goals for attaining natural visibility

conditions at the Jarbridge Wilderness Area in remote

northeastern Nevada, the state’s only Class I Federal area. 
WILDEARTH GUARDIANS V. USEPA 9

The SIP further requires limitations on emissions of sulfur

dioxide, nitrogen oxides (NOx), and particulate matter for

several pollution sources, including Reid Gardner, a coalfired power plant in southern Nevada.

In June 2011, the EPA proposed to approve Nevada’s

regional haze SIP. 76 Fed. Reg. at 36450–51. WildEarth

then submitted public comments to the EPA, asserting, inter

alia, that (1) Nevada’s SO2 BART determination for Reid

Gardner is inadequate; (2) Nevada ignored certain mandatory

factors in setting reasonable progress goals for improving

visibility at the Jarbridge Wilderness Area; and (3) the EPA

failed to ensure that approving the SIP would not interfere

with the attainment or maintenance of the NAAQS.

Notwithstanding WildEarth’s concerns, the EPA

approved the majority of Nevada’s regional haze SIP on

March 26, 2012.1 Approval and Promulgation of Air Quality

Implementation Plans, 77 Fed. Reg. 17334 (Mar. 26, 2012). 

WildEarth then timely filed this petition for review,

challenging the EPA’s approval of Nevada’s SIP and the

agency’s failure to develop a FIP. Nevada Power Company

and Sierra Pacific Power Company (together, Nevada Power)

and the Nevada Division of Environmental Protection

(NDEP) subsequently intervened.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 42 U.S.C. § 7607(b)(1). 

“[W]e may set aside the challenged agency action only if it is

1 The EPA approved the entirety of the SIP except for Nevada’s NOx

BART determination for Reid Gardner. That aspect of Nevada’s SIP is

not at issue here.
10 WILDEARTH GUARDIANS V. USEPA

‘arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.’” NRDC v. EPA, 638 F.3d 1183,

1190 (9th Cir. 2011) (quoting 5 U.S.C. § 706(2)(A)). “An

agency action is arbitrary and capricious if the agency has:

relied on factors which Congress has not intended it to

consider, entirely failed to consider an important aspect of the

problem, offered an explanation for its decision that runs

counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference in

view or the product of agency expertise.” Ctr. for Biological

Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1109

(9th Cir. 2012) (quoting Pac. Coast Fed’n of Fishermen’s

Ass’ns v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034

(9th Cir. 2001)).

DISCUSSION

I. Standing

Although the EPA does not contest WildEarth’s standing

to bring this petition for review, Nevada Power and the

NDEP assert, respectively, that WildEarth lacks standing to

pursue some or all of its claims. In any event, “standing is

not subject to waiver,” United States v. Hays, 515 U.S. 737,

742 (1995), and we have “an independent obligation to assure

that standing exists, regardless of whether it is challenged by

any of the parties,” Summers v. Earth Island Inst., 555 U.S.

488, 499 (2009) (citing Bender v. Williamsport Area Sch.

Dist., 475 U.S. 534, 541 (1986)).

As discussed in greater detail below, WildEarth hinges its

standing to challenge the EPA’s approval of Nevada’s SIP on

a declaration submitted by Veronica Egan, a member of the

organization who lives in Colorado. Even though Egan lives
WILDEARTH GUARDIANS V. USEPA 11

out of state, she regularly visits Nevada, and she avers that

(1) seeing pollution from power plants such as Reid Gardner

distresses her; (2) she worries about the health effects of such

pollution; and (3) she visits national parks where visibility

conditions are adversely affected by pollution from Reid

Gardner.

A. Legal Framework

WildEarth has the burden to demonstrate standing for

each claim that it asserts. See DaimlerChrysler Corp. v.

Cuno, 547 U.S. 332, 352 (2006). To establish Article III

standing, a claimant “must show (1) it has suffered an ‘injury

in fact’ that is (a) concrete and particularized and (b) actual

or imminent, not conjectural or hypothetical; (2) the injury is

fairly traceable to the challenged action of the defendant; and

(3) it is likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.” Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.

167, 180–81 (2000) (citing Lujan v. Defenders of Wildlife,

504 U.S. 555, 560–61 (1992)).

As an organization, WildEarth “may assert standing on

behalf of [its] members as long as the ‘members would

otherwise have standing to sue in their own right, the interests

at stake are germane to the organization’s purpose, and

neither the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.’” Wash.

Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013)

(quoting Friends of the Earth, 528 U.S. at 181).

In this petition for review, WildEarth plainly seeks to

promote its organizational purpose by requiring the EPA to

reject Nevada’s regional haze SIP and issue a FIP in its place. 
12 WILDEARTH GUARDIANS V. USEPA

Further, such a claim for relief does not “require[]

individualized proof,” and is “thus properly resolved in a

group context.” Hunt v. Wash. State Apple Adver. Comm’n,

432 U.S. 333, 344 (1977). Accordingly, whether WildEarth

has standing to assert its claims turns on whether its member,

Veronica Egan, has standing to sue in her own right. See

Friends of the Earth, 528 U.S. at 181.

B. Reasonable Progress Goals for the Jarbridge

Wilderness Area

WildEarth lacks standing to contest the EPA’s approval

of Nevada’s worst days reasonable progress goals for the

Jarbridge Wilderness Area. Under the CAA and its

implementing regulations, Nevada must develop reasonable

progress goals to improve visibility at the Jarbridge

Wilderness Area. Interestingly, Egan, upon whose

declaration WildEarth places exclusive reliance, has never

visited the Jarbridge Wilderness Area, nor does she have any

plans to travel there in the future. More significantly,

WildEarth fails to demonstrate that the EPA’s approval of

Nevada’s worst days reasonable progress goals has anycausal

connection to Egan’s claimed injuries. Accordingly, Egan,

and therefore WildEarth, lacks standing to challenge the

EPA’s approval of this aspect of Nevada’s SIP.

In her declaration, Egan claims that she regularly

“observe[s] air pollution” from the North Valmy Generating

Station (North Valmy), a coal-fired power plant located in

north-central Nevada. She asserts that the EPA approved

Nevada’s SIP even though Nevada failed “to assess whether

air pollution . . . should be reduced from the North Valmy

coal-fired power plant in order to further reduce haze in the

region, including in the Jarbridge Wilderness Area.” And she
WILDEARTH GUARDIANS V. USEPA 13

complains that, as a consequence of the EPA’s approval of

Nevada’s SIP, she “will continue to observe offensive

amounts of air pollution from the smokestacks of this power

plant.” She also states that she is “worried that the air

pollution will negatively affect [her] health” as she visits the

area near the plant.

Even assuming, without deciding, that Egan’s concerns

about emissions from North Valmy establish an injury in fact,

WildEarth fails to satisfy the traceability and redressability

requirements of Article III. Egan contends that viewing

emissions from North Valmy is aesthetically displeasing, and

that it leads her to worry about future health consequences. 

But Egan fails to show that either her aesthetic displeasure or

her health concerns are causally linked to the EPA’s approval

of Nevada’s worst days reasonable progress goals for

visibility at the Jarbridge Wilderness Area. Wash. Envtl.

Council, 732 F.3d at 1141. Similarly, WildEarth fails to

show that it is likely, as opposed to merely speculative, that

a favorable decision will redress Egan’s injuries. See id. at

1146.

Nothing in the record suggests that a reduction in

emissions from North Valmy would ameliorate Egan’s

claimed aesthetic injury. Moreover, Egan does not

claim—and the record does not otherwise reveal—that a

reduction in North Valmy’s emissions would improve her

health. In short, Egan does not sufficiently link her claimed

injury near North Valmy with the EPA’s approval of

Nevada’s goals for the Jarbridge Wilderness Area, nor does

she have any credible connection with Jarbridge. 

Accordingly, WildEarth fails to establish standing to

challenge the EPA’s approval of Nevada’s worst days

reasonable progress goals for visibility at the Jarbridge
14 WILDEARTH GUARDIANS V. USEPA

Wilderness Area, and we dismiss this portion of the petition

for review for lack of subject matter jurisdiction.

C. Reid Gardner SO2 BART Determination

By contrast, as neither the EPA nor Nevada Power

contests, WildEarth has standing to challenge Nevada’s SO2

BART determination for Reid Gardner. In her declaration,

Egan states that she regularly visits Class I Federal areas

where visibility is affected by pollution originating in

Nevada. In particular, she visits Zion National Park in Utah

at least once every other year, she visits Grand Canyon

National Park in Arizona at least once a year, and she plans

to continue visiting both national parks regularly. According

to Egan, these parks “have gotten hazier” over the years,

which has impaired her ability “to view and enjoy the scenic

vistas within these [p]arks.” Egan observes that “[a]ccording

to Nevada, the Reid Gardner coal-fired power plant causes

haze pollution in 24 Class I [Federal] areas outside of the

state, including Grand Canyon and Zion National Parks.” As

such, Egan claims that “[u]nless and until [the] EPA requires

Nevada to better reduce haze-causing pollution, this haze . . .

will continue to negatively impact [her] enjoyment of these

areas if it persists.”

Egan’s declaration suffices to establish WildEarth’s

standing with respect to Nevada’s SO2 BART determination

for Reid Gardner. Because Egan attests to “specific aesthetic

and recreational injuries” resulting from emissions at Reid

Gardner, she adequately demonstrates an “injury in fact.” 

Wash. Envtl. Council, 732 F.3d at 1140. Her injury is fairly

traceable to the EPA’s approval of Nevada’s SO2 BART

determination for Reid Gardner because SO2 pollution from

Reid Gardner contributes to visibility impairment at the
WILDEARTH GUARDIANS V. USEPA 15

national parks she visits. See id. at 1141 (explaining that, to

show traceability, a plaintiff must demonstrate that her injury

is causally linked to the agency’s alleged misconduct). 

Finally, if we ordered the EPA to reject Nevada’s SIP on the

ground that the SO2 BART determination for Reid Gardner

was inadequate, it follows that the EPA’s FIP would likely

impose stricter emission controls on the plant. Because there

is no dispute that a reduction in Reid Gardner’s SO2

emissions would improve visibility at the national parks that

Egan frequents, it is likely that Egan’s injury would be

redressed by a favorable decision. See Friends of the Earth,

528 U.S. at 180–81.

Because (1) Egan would have standing to challenge the

EPA’s approval of Nevada’s SO2 BART determination for

Reid Gardner in her own right; (2) the challenge is germane

to WildEarth’s purpose; and (3) the relief requested does not

require individualized proof, WildEarth has standing to

challenge the EPA’s approval of Nevada’s SO2 BART

determination for Reid Gardner.2

II. Merits of the Reid Gardner SO2 BART Determination

Because WildEarth has standing to challenge the EPA’s

approval of Nevada’s SO2 BART determination, we proceed

to address the merits of WildEarth’s claim.3 First, WildEarth

2 For similar reasons, WildEarth has standing to challenge the EPA’s

alleged failure to ensure that Nevada’s SIP does not interfere with the

attainment or maintenance of the NAAQS under 42 U.S.C. § 7410(l).

3

In its Statement of Issues, WildEarth also suggests that the EPA’s

approval of Nevada’s regional haze SIP was arbitrary and capricious

because Nevada submitted it after the deadline for doing so. But

WildEarth fails to develop this argument in its opening brief, and has
16 WILDEARTH GUARDIANS V. USEPA

argues that the EPA erred in approving Nevada’s SIP because

Nevada failed to document adequatelyits consideration of the

applicable factors. Second, WildEarth asserts that the EPA

erred in approving the SIP because the SIP’s SO2limitation

for Reid Gardner purportedly authorizes an increase in the

SO2 emission rate at the plant. We address these arguments

in turn.

A. Explanation of the BART Determination

WildEarth’s first argument focuses on the level of detail

in Nevada’s SIP. In describing its BART determination for

Reid Gardner, the SIP provides that “[e]mission limitations

for BART were established on a case-by-case basis taking

into consideration the technology available, the costs of

compliance, the energy and non-air quality environmental

impacts of compliance, any pollution control equipment in

use or in existence at the source or unit, the remaining useful

life of the unit and the degree of improvement in visibility

which may reasonably be anticipated to result from the use of

control technology.” As WildEarth acknowledges, this

description accurately recites the factors that Nevada was

obligated to consider. See 42 U.S.C. § 7491(g)(2).

Nonetheless, WildEarth argues that Nevada’s SIP fails to

document how each of these factors was evaluated when

establishing the SO2 emission limitation for Reid Gardner. 

As such, WildEarth contends that Nevada’s SIP contravenes

the requirement that the state “must . . . include

documentation for all required analyses.” 40 C.F.R.

§ 51.308(e)(1). Relying on our case law, WildEarth further

therefore waived it. See United States v. Kimble, 107 F.3d 712, 715 n.2

(9th Cir. 1997).
WILDEARTH GUARDIANS V. USEPA 17

observes that “‘[s]tating that a factor was considered . . . is

not a substitute for considering it.’” Beno v. Shalala, 30 F.3d

1057, 1075 (9th Cir. 1994) (quoting Getty v. Fed. Sav. &

Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986)).

WildEarth’s challenge to the SIP on this basis is

unavailing. Before Nevada submitted its regional haze SIP to

the EPA, Nevada Power (doing business as NV Energy)

retained the firm CH2M HILL to prepare a BART analysis

for Reid Gardner. The firm applied the EPA’s Guidelines,

explained its reasoning in considerable detail, and

recommended a BART SO2

limitation of 0.40 pounds per

million British thermal units (lb/MMbtu). Nevada then

independently reviewed CH2M HILL’s recommendation and

concluded that a lower emission limitation, 0.15 lb/MMbtu,

was warranted. The SIP directs readers to a detailed

documentation of Nevada’s analysis.

This is not a situation where Nevada simply stated that the

required factors were considered, but failed to consider them. 

Cf. Beno, 30 F.3d at 1075. To the contrary, the thorough

discussion in CH2M HILL’s report, and Nevada’s subsequent

evaluation of CH2M HILL’s conclusions, shows that Nevada

conducted the required SO2 BART analysis for Reid Gardner. 

Cf. U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 568 (D.C. Cir.

2004) (“[A] federal agency may turn to an outside entity for

advice and policy recommendations, provided the agency

makes the final decisions itself.”); Assiniboine &Sioux Tribes

v. Bd. of Oil &Gas Conservation, 792 F.2d 782, 795 (9th Cir.

1986) (collecting cases for the proposition that agencies may

rely on advice from outside entities so long as agencies do not

merely “rubber stamp” outside decisions). Accordingly, the

EPA’s approval of this aspect of Nevada’s SIP was not

arbitrary and capricious.
18 WILDEARTH GUARDIANS V. USEPA

B. Purported Increase in SO2 Emissions

WildEarth next argues that the Reid Gardner SO2 BART

determination is deficient because it allows for increased

emissions. Nevada’s regional haze SIP fixes an SO2 emission

limitation of 0.15 lb/MMBtu at Reid Gardner. According to

WildEarth, this limitation exceeds recent emission rates at the

plant, which in 2009 ranged from 0.054 to 0.058 lb/MMbtu. 

Because this data apparently shows that Reid Gardner is

capable of maintaining lower SO2 emissions than the 0.15

lb/MMBtu level that Nevada claims represents BART,

WildEarth asserts that Nevada’s emission limitation for SO2

at Reid Gardner cannot constitute BART. WildEarth also

asserts more broadly that a SIP authorizing increased SO2

emissions at Reid Gardner would violate Congress’s intent in

enacting the 1977 amendments to the CAA.

WildEarth’s objection to Nevada’s SO2 BART

determination rests on amisinterpretation of the relevant data. 

Specifically, WildEarth’s contention that the SIP authorizes

increased emissions at Reid Gardner depends on its analysis

of annual emission rates at the plant. But, as the EPA

observes, annual emission rates are not comparable to the 24-

hour average emission limitation reflected in Nevada’s SIP. 

77 Fed. Reg. at 17338. A review of 24-hour average SO2

emissions at Reid Gardner reveals that the plant has not

consistently achieved a 24-hour average limit below 0.15

lb/MMbtu. Moreover, even if Reid Gardner only

occasionally exceeds 0.15 lb/MMBTU on a 24-hour basis,

emission limitations under the CAA are continuous in nature,

and BART must be a limitation that can be achieved on a

continuous basis. See 42 U.S.C. § 7602(k); 40 C.F.R.

§ 51.301. Further, the EPA’s review of the data refutes

WildEarth’s claim that, under the SIP, there will be an annual
WILDEARTH GUARDIANS V. USEPA 19

increase in SO2 emissions from Reid Gardner. 77 Fed. Reg.

at 17338. Thus, WildEarth fails to show that the SIP will

exacerbate pollution from Reid Gardner.

The EPA’s decision to approve this aspect of Nevada’s

SIP is entitled to considerable judicial deference, as it

represents “an agency’s determination in an area involving a

‘high level of technical expertise.’” Lands Council v.

McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc) (quoting

Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 954

(9th Cir. 2003)), abrogated in part on other grounds by

Winter v. NRDC, 555 U.S. 7, 22 (2008); see also Ass’n of

Irritated Residents v. EPA, 423 F.3d 989, 997 (9th Cir. 2005)

(explaining that determinations that are “scientific in nature”

are “entitled to the most deference on review”). Particularly

when reviewed under this deferential standard, the EPA’s

decision to approve Nevada’s SO2 BART determination for

Reid Gardner was not arbitrary and capricious.

III. Interference with Attainment or Maintenance of

the NAAQS

Finally, WildEarth argues that the EPA’s approval of

Nevada’s SIP was arbitrary and capricious because the EPA

did not make an express finding that the SIP does not

interfere with the attainment or maintenance of the NAAQS. 

According to WildEarth, the EPA was obligated to make such

a determination under 42 U.S.C. § 7410(l), which provides

that the EPA “shall not approve a revision of a [SIP] if the

revision would interfere with any applicable requirement

concerning attainment and reasonable further progress.”

Even assuming, without deciding, that § 7410(l) applies

here, WildEarth’s argument is unavailing. Wildearth
20 WILDEARTH GUARDIANS V. USEPA

identifies nothing in Nevada’s SIP that weakens or removes

any pollution controls. And even if the SIP merely

maintained the status quo, that would not interfere with the

attainment or maintenance of the NAAQS. Accordingly,

WildEarth fails to show that the EPA’s approval of Nevada’s

SIP contravened § 7410(l).

CONCLUSION

For the foregoing reasons, we dismiss the petition for

review in part and deny the petition in part.

PETITION DISMISSED IN PART AND DENIED IN

PART.