Nos. 12-3084, 12-3085 

UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT 

_______________________________________________ 

STATE OF NEBRASKA, et al. 

Petitioners, 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and GINA 

McCARTHY, Administrator, United States Environmental Protection Agency, 

Respondents. 

________________________________________________________________________ 

EPA’S MOTION FOR PARTIAL VOLUNTARY REMAND 

________________________________________________________________________ 

 Respondents United States Environmental Protection Agency, et al. (“EPA”) 

hereby move the Court for an order remanding, without vacatur, a portion of the 

final action under review in these consolidated petitions, to allow EPA to provide a 

more detailed and complete explanation of its decision. A remand will also allow 

EPA to provide stakeholders with notice and an opportunity to comment if EPA 

determines that it is necessary to introduce new evidence into the record, or to 

change its final decision. 

 EPA has conferred with counsel for all other parties, and is informed that 

Petitioners State of Nebraska in No. 12-3084 (“State”) and National Parks 
2 

Conservation Association, et al., in No. 12-3085 (“Environmental Petitioners”) 

reserve their positions pending review of EPA’s Motion for Remand.

INTRODUCTION 

The petitions for review challenge a final rule issued by EPA under the 

Clean Air Act (“Act”) partially approving and partially disapproving a State 

Implementation Plan (“SIP”) submitted by the State of Nebraska and promulgating 

a Federal Implementation Plan (“FIP”) to replace the disapproved portions of the 

SIP. See Approval, Disapproval and Promulgation of Implementation Plans; State 

of Nebraska; Regional Haze State Implementation Plan; Federal Implementation 

Plan for Best Available Retrofit Technology Determination, 77 Fed. Reg. 40,150 

(July 6, 2012) (“Rule”). The State challenges EPA’s partial SIP disapproval, while 

Environmental Petitioners challenge EPA’s FIP. 

 As discussed in greater detail infra at 4-7, Congress has established a 

national goal of preventing and remedying visibility impairment in certain national 

parks, wildernesses, and similar areas (known as “Class I areas”). For states that 

contain Class I areas, state or federal implementation plans developed under the 

Act must include (among other provisions) “reasonable progress goals” directed at 

achieving natural visibility conditions at these areas. See 40 C.F.R. § 51.308(d)(1). 

States that do not contain any Class I areas are not required to adopt reasonable 

progress goals; however, their implementation plans must still include a long-term 
3 

strategy that incorporates “measures as necessary to achieve the reasonable 

progress goals established by” states that do contain such areas. 40 C.F.R. 

§ 51.308(d)(3). 

 Environmental Petitioners argue that the long-term strategy in the partial FIP 

that EPA issued for Nebraska does not satisfy these requirements, in that it 

allegedly does not include measures necessary to achieve reasonable progress 

goals established by South Dakota and Colorado. See Opening Brief of National 

Parks Conservation Association and Sierra Club, ECF No. 4220088 (“Env. Pet. 

Br.”) at 32-39. As explained in more detail below, in the course of reviewing 

Environmental Petitioners’ merits brief, EPA has come to the conclusion that it did 

not fully explain its reasoning or fully respond to public comments regarding the 

FIP’s alleged deficiency in this regard. 

 EPA therefore seeks a remand without vacatur of this aspect of the FIP, in 

order to provide EPA with the opportunity to revisit its rationale and, at a 

minimum, explain it more fully. If EPA determines that it is necessary to 

introduce new evidence into the record or change its final decision on remand, 

EPA will provide stakeholders with notice and an opportunity to comment before 

any final decision is reached. Because the FIP does not require the installation of 

any additional control technology at the sole facility to which it applies, EPA 

believes that vacatur of the remanded aspect of the Rule is unnecessary. Nor 
4 

would a remand affect briefing or argument as to any other aspect of the State’s or 

Environmental Petitioners’ claims, which are legally and factually distinct from the 

issue on which EPA seeks remand. 

BACKGROUND 

I. STATUTORY AND REGULATORY BACKGROUND. 

A. Clean Air Act Overview. 

The Act controls air pollution through a system of shared federal and state 

responsibility. See Gen. Motors Corp. v. United States, 496 U.S. 530, 532 (1990). 

In general, EPA establishes standards that protect air quality, and states implement 

those standards through SIPs. States must submit SIPs and SIP revisions to EPA 

for approval, and EPA is required to review each submission to determine if it 

“meets all of the applicable requirements of [the Act].” 42 U.S.C. § 7410(k)(3); 

see also North Dakota v. EPA, 730 F.3d 750, 766 (8th Cir. 2013), cert. denied, 134 

S. Ct. 2662 (2014). If a state fails to fulfill its obligation to submit a SIP that 

meets applicable statutory and regulatory requirements, the Act provides a 

backstop of federal controls. Thus, if EPA disapproves a SIP in whole or in part, 

EPA must promulgate a FIP in place of any disapproved portion of the SIP within 

two years (unless EPA first approves a state’s correction of the deficiencies in its 

SIP). See 42 U.S.C. § 7410(c)(1)(B). 
5 

B. Visibility Protection Under the Act. 

Congress enacted Section 169A of the Act, 42 U.S.C. § 7491, in 1977 “[i]n 

response to a growing awareness that visibility was rapidly deteriorating in many 

places . . . set aside for special protection in their natural states . . . .” Chevron 

U.S.A., Inc. v. EPA, 658 F.2d 271, 272 (5th Cir. 1981). At that time Congress 

declared as a national goal “the prevention of any future, and the remedying of any 

existing, impairment of visibility in mandatory class I Federal areas which 

impairment results from man-made air pollution.” 42 U.S.C. § 7491(a)(1).1

 In the 

1990 Amendments to the Act, Congress added Section 169B, 42 U.S.C. § 7492, to 

focus attention on regional haze – that is, visibility impairment caused by 

emissions from multiple sources and activities located across a broad geographic 

area. See 40 C.F.R. § 51.301; see also 77 Fed. Reg. 12,770, 12,771 (Mar. 2, 2012). 

C. BART and BART Alternatives. 

The Act’s visibility protection provisions state that SIPs must require certain 

“major stationary sources” that “emit[] any air pollutant which may reasonably be 

anticipated to cause or contribute to any impairment of visibility” to “procure, 

install, and operate, as expeditiously as practicable (and maintain thereafter) the 

best available retrofit technology [“BART”]. . . . ” 42 U.S.C. § 7491(b)(2)(A); 40 

 

1

 Class I federal areas include certain national wilderness areas, national memorial 

parks, and national parks. 42 U.S.C. § 7472. “Impairment of visibility” means 

“reduction in visual range and atmospheric discoloration.” Id. § 7491(g)(6). 
6 

C.F.R. § 51.301. BART is “an emission limitation based on the degree of 

reduction achievable through the application of the best system of continuous 

emission reduction” for visibility-impairing pollutants emitted by certain stationary 

facilities. 40 C.F.R. § 51.301. This emission limit must be established case-bycase, taking five statutory factors into consideration.2

EPA’s Regional Haze Rule, which implements the Act’s visibility protection 

provisions, provides states with an alternative to requiring source-specific BART 

controls. Specifically, a state need not require sources to install BART controls if 

that state “demonstrates that an emissions trading program or other alternative will 

achieve greater reasonable progress toward natural visibility conditions.” 40 

C.F.R. § 51.308(e). In June 2012, EPA determined that the emission trading 

programs in EPA’s Cross-State Air Pollution Rule (the “Transport Rule”) “achieve 

greater reasonable progress towards the national goal of achieving natural visibility 

conditions in Class I areas than source-specific [BART]” in Transport Rule states. 

77 Fed. Reg. 33,642, 33,643 (June 7, 2012); see also 76 Fed. Reg. 82,219, 82,224-

29 (Dec. 30, 2011). EPA thus amended the Regional Haze Rule, which now 

provides in pertinent part that states that participate in Transport Rule trading 

 

2

 The BART factors are (a) the costs of compliance; (b) the energy and non-air 

quality environmental impacts of compliance; (c) any existing pollution controls in 

use at the source; (d) the remaining useful life of the source; and (e) the predicted 

visibility improvements from use of controls. 42 U.S.C. § 7491(g)(2). 
7 

programs “need not require BART-eligible fossil fuel-fired steam electric plants in 

the State to install, operate, and maintain BART for the pollutant covered by such 

trading program in the State.” 40 C.F.R. § 51.308(e)(4). This nationwide 

provision is known as the “better-than-BART” rule.3

 

D. Reasonable Progress Goals and the Long-Term Strategy. 

 States that contain Class I areas must include in their SIPs “goals . . . that 

provide for reasonable progress towards achieving natural visibility conditions” 

(“reasonable progress goals”) at each Class I area within a state. 40 C.F.R. 

§ 51.308(d)(1). At a minimum, reasonable progress goals “must provide for an 

improvement in visibility for the most impaired days over the period of the [SIP] 

and ensure no degradation in visibility for the least impaired days over the same 

period.” Id. States that do not contain Class I areas are not required to adopt 

reasonable progress goals. See id. In recognition of the fact that air pollution does 

not respect state boundaries, however, such states must still include in their SIPs “a 

long-term strategy that addresses regional haze visibility impairment for . . . each 

mandatory Class I Federal area located outside the State which may be affected by 

emissions from the State.” 40 C.F.R. § 51.308(d)(3). 

 

3

 The Transport Rule and the better-than-BART rule are more fully discussed in 

EPA’s concurrently-filed brief on the merits, at 9-11. 
8 

II. FACTUAL BACKGROUND. 

 Nebraska submitted a regional haze SIP revision to EPA on July 13, 2011. 

77 Fed. Reg. at 12,775. Included in this SIP revision was a BART determination 

for sulfur dioxide (“SO2”) emissions from the Gerald Gentleman Station (the 

“Station,” or “GGS”), a Nebraska electric power plant. See Nebraska Department 

of Environmental Quality State Implementation Plan for Regional Haze and 

[BART], State of Nebraska’s Appendix at 513, 519. In July 2012, EPA 

disapproved this determination, finding significant flaws in several aspects of the 

State’s analysis of potential emission control technologies. See generally 77 Fed. 

Reg. at 12,779-80; 77 Fed. Reg. at 40,160-63; Brief of Respondent EPA (filed 

concurrently on Feb. 6, 2015) at 13-15, 25-33. EPA also disapproved the State’s 

long-term strategy to the extent that it relied on this flawed BART determination. 

77 Fed. Reg. at 40,155. 

EPA promulgated a FIP in place of those elements of the SIP that it 

disapproved. See 77 Fed. Reg. at 40,151. EPA invoked the better-than-BART 

rule, opting to “rely[] on the Transport Rule as an alternative to BART for SO2

emissions from the [Station].” 77 Fed. Reg. at 12,781; see also 77 Fed. Reg. 

40,163-64. EPA further found that the gaps left in the State’s long-term strategy 

by EPA’s partial disapproval were “addressed [in EPA’s FIP] through reliance on 
9 

the Transport Rule as an alternative to BART for SO2 emissions from the 

[Station].” 77 Fed. Reg. at 12,776; see also 77 Fed. Reg. at 40,151. 

The State and Environmental Petitioners filed petitions for review of various 

aspects of the Rule. In general, the State challenges EPA’s partial SIP disapproval, 

while Environmental Petitioners challenge elements of the FIP.4

 As is relevant 

here, Environmental Petitioners argue that the FIP’s long-term strategy is deficient 

because it does not include measures – specifically, the requirement that the 

Station install certain emission controls – that are allegedly required to achieve 

reasonable progress goals established for Class I areas in South Dakota and 

Colorado. See Env. Pet. Br. at 32-39. 

ARGUMENT 

I. STANDARD FOR GRANTING VOLUNTARY REMAND WITHOUT 

VACATUR. 

 “A reviewing court has inherent power to remand a matter to the 

administrative agency.” Loma Linda Univ. v. Schweiker, 705 F.2d 1123, 1127 (9th

Cir. 1983); see also Ramirez-Peyro v. Gonzales, 477 F.3d 637, 642 (8th Cir. 2007) 

(“‘Generally speaking, a court of appeals should remand a case to an agency for 

 

4

 The Nebraska Public Power District (“District”) also filed a petition for review. 

See Nebraska Public Power District v. EPA, No. 12-3061. The District has since 

dismissed its petition, but remains as an intervenor in No. 12-3085. See October 4, 

2014, Motion for Voluntary Dismissal of Petition for Review in No. 12-3061, ECF 

No. 4205810, at 3; November 4, 2014, Judgment in No. 12-3061, ECF No. 

4213133; 
10 

decision of a matter that statutes place primarily in agency hands.’” (citing INS v. 

Ventura, 537 U.S. 12, 16 (2002)). It is, moreover “generally accepted that in the 

absence of a specific statutory limitation, an administrative agency has the inherent 

authority to reconsider its decisions.” Macktal v. Chao, 286 F.3d 822, 825-26 (5th

Cir. 2002); see also Trujillo v. Gen. Elec. Co., 621 F.2d 1084, 1086 (10th Cir. 

1980) (noting that “the power to decide in the first instance carries with it the 

power to reconsider”). This authority includes the right to seek voluntary remand 

of a challenged agency decision, without confessing error. SKF USA Inc. v. 

United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). For example, an agency may 

seek remand because it wishes to reconsider its interpretation of the governing 

statute, the procedures it followed in reaching its decision, or the decision’s 

relationship to other agency policies. Id. In addition, if an agency has not 

provided a “reasoned explanation” for its action, “it is appropriate to remand to the 

agency for further proceedings.” Qwest Corp. v. F.C.C., 258 F.3d 1191, 1201 (10th

Cir. 2001). 

 While the reviewing court has discretion over whether to remand, voluntary 

remand is appropriate where the request is reasonable and timely. See Macktal, 

286 F.3d at 826. “‘Administrative reconsideration is a more expeditious and 

efficient means of achieving an adjustment of agency policy than is resort to the 

federal courts.’” B.J. Alan Co. v. ICC, 897 F.2d 561, 562 n.1 (D.C. Cir. 1990) 
11 

(quoting Commonwealth of Pennsylvania v. ICC, 590 F.2d 1187, 1194 (D.C. Cir. 

1978)). As the D.C. Circuit has stated, “[w]e commonly grant such motions, 

preferring to allow agencies to cure their own mistakes rather than wasting the 

courts’ and the parties’ resources reviewing a record that both sides acknowledge 

to be incorrect or incomplete.” Ethyl Corp. v. Browner, 989 F.2d 522, 524 (D.C. 

Cir. 1993). In sum, “‘if the agency’s concern is substantial and legitimate, a 

remand is usually appropriate.’” Citizens Against the Pellissippi Parkway 

Extension, Inc. v. Mineta, 375 F.3d 412, 417 (6th Cir. 2004) (citing SKF USA Inc., 

254 F.3d at 1029). 

 In determining whether to remand without vacating the agency’s decision, 

the court considers “the seriousness of the . . . deficiencies (and thus the extent of 

doubt whether the agency chose correctly) and the disruptive consequences of an 

interim change that may itself be changed.” Allied Signal, Inc. v. U.S. Nuclear 

Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993) (citation omitted). 

II. REMAND WITHOUT VACATUR IS APPROPRIATE. 

 EPA asks the Court to remand the FIP’s long-term strategy for Nebraska, 

and the cases cited above indicate that such a request should ordinarily be granted. 

To be clear, EPA does not concede that this aspect of EPA’s final action was 

erroneous. However, EPA has come to the conclusion that EPA did not fully 

explain its reasoning on the specific issues raised by Environmental Petitioners at 
12 

the time that EPA promulgated the FIP, and may not have fully responded to 

comments on this issue. Among other things, EPA is concerned that its present 

explanation could potentially be construed in a manner that is inconsistent with 

EPA’s interpretation of the relevant statutory and regulatory requirements. 

Remand is therefore appropriate so that EPA has the opportunity to amend or 

further explain its rationale for declining to require additional controls as part of 

the FIP’s long-term strategy, to more fully respond to comments submitted by the 

public, and to take further action if necessary. 

EPA’s requested remand would not prejudice any party. If EPA determines 

that it is necessary to introduce new evidence into the record or change its final 

decision, EPA will provide stakeholders with notice and an opportunity to 

comment before any final decision following the remand is reached. Any final 

action on remand would be subject to judicial review pursuant to 42 U.S.C. 

§ 7607(b)(1). The Environmental Petitioners’ challenge to the FIP’s long-term 

strategy is, moreover, factually and legally distinct from the State’s and 

Environmental Petitioners’ remaining challenges to the Rule in this matter, all of 

which may proceed independently. 

Nor is vacatur necessary with this voluntary remand. The FIP’s long-term 

strategy does not require installation of additional controls at the Station, or any 
13 

other actions that might ultimately prove unnecessary if the remand resulted in a 

different decision. 

CONCLUSION 

For the foregoing reasons, EPA’s final action with regard to the long-term 

strategy for Nebraska should be remanded to EPA without vacatur. 

 Respectfully submitted, 

 JOHN C. CRUDEN 

 Assistant Attorney General 

 /s Angeline Purdy 

___________________________ 

ANGELINE PURDY 

United States Department of Justice 

Environment and Natural Resources 

Division 

601 D Street, N.W. Suite 8000 

Washington, D.C. 20044 

(202) 514-0996 

OF COUNSEL 

MATTHEW MARKS 

M. LEA ANDERSON 

Office of General Counsel 

U.S. Environmental Protection Agency 

Washington, D.C. 

SARA HERTZ WU 

Office of Regional Counsel 

U.S. Environmental Protection Agency, Region VII 
14 

Lenexa, KS 

Date: February 6, 2015 

 
15 

CERTIFICATE OF SERVICE 

 I hereby certify that on February 6, 2015, copies of the foregoing Motion for 

Remand were filed with the Court’s CM/ECF system, which will electronically 

serve all counsel of record. 

 /s Angeline Purdy 

 ____________________________ 

 Angeline Purdy