In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2582

STATE OF MICHIGAN,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent,

and

FOREST COUNTY POTAWATOMI

COMMUNITY,

Intervenor-Respondent.

Petition for Review of the

Final Administrative Rulings of the

United States Environmental Protection Agency.

ARGUED MARCH 30, 2009—DECIDED SEPTEMBER 9, 2009

Before KANNE, WOOD and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. The cultural and religious traditions of the Forest County Potawatomi Community (“the

Community”) often require the use of pure natural re-
2 No. 08-2582

sources derived from a clean environment. Many years

ago, the Community became alarmed by increasing

pollution levels in its lakes, wetlands, and forests. To

remedy this problem, it submitted a request to the Environmental Protection Agency (“EPA”) to redesignate

certain tribal lands from Class II to Class I status under

the Prevention of Significant Deterioration (“PSD”) program of the Clean Air Act (“the Act”). This would have

the effect of imposing stricter air quality controls on

emitting sources in and around the Community’s

redesignated lands.

After nearly fifteen years of administrative proceedings

and dispute resolution efforts between the Community

and neighboring Wisconsin (which were successful) and

Michigan (which were not), the EPA promulgated a final

ruling redesignating the Community’s lands to Class I

status. It also issued two companion announcements

concluding dispute resolution proceedings with Wisconsin and Michigan. Michigan seeks review of these

three final administrative rulings. It asserts that the EPA

pursued the redesignation in an improper manner

and, as a result, needlessly complicated Michigan’s air

quality control programs. Because Michigan lacks

standing to pursue these claims, we dismiss its petition

for review.

I

A

The Act, 42 U.S.C. §§ 7401-7617q, establishes a comprehensive program for air quality control and authorizes
No. 08-2582 3

the EPA to administer it. 42 U.S.C. § 7601(a)(1). Under

the Act, the EPA must identify air pollutants that

endanger public health and welfare and must formulate

National Ambient Air Quality Standards (“NAAQS”),

which specify air quality criteria, control techniques,

and the maximum possible concentration of various air

pollutants. 42 U.S.C. §§ 7408-09.

The purpose of the PSD program is to preserve the

NAAQS where they have been met. 42 U.S.C. § 7471. It

operates primarily through a permitting system. A

“major emitting facility,” defined at 42 U.S.C. § 7479(1),

must obtain a permit before initiating construction of

a new facility or modifying an existing facility. 42 U.S.C.

§ 7475(a)(1). In order to secure such a permit, the

emitting source must demonstrate through air quality

modeling that it will not cause or contribute to the

(A) maximum allowable increase or maximum allowable concentration for any pollutant in any area to

which this part applies more than one time per year,

(B) national ambient air quality standard in any air

quality control region, or (C) any other applicable

emission standard or standard of performance

under this Act.

42 U.S.C. § 7475(a)(3). Under the PSD program, an area

is designated as Class I, II, or III, with Class I lands

being those for which air quality is most protected. 42

U.S.C. § 7473. Thus, it is more difficult for emitting

sources in the vicinity of a Class I area to obtain a PSD

permit.

Much of the PSD program is implemented by the

States through State Implementation Plans (“SIP”), which
4 No. 08-2582

contain a set of State-promulgated and EPA-approved

regulations. 42 U.S.C. § 7410. If a State has not yet promulgated its own SIP, or if the EPA has not approved

a proposed SIP, the EPA will issue a Federal Implementation Plan (“FIP”), which will govern the implementation

of the PSD program until the State creates a valid SIP. 42

U.S.C. § 7410(c). Indian Tribes are generally treated the

same as States under the Act (with some exceptions

noted in 40 C.F.R. § 49.4). This means that they may

implement the PSD program on their lands through a

Tribal Implementation Plan (“TIP”), which is analogous

to a SIP. 42 U.S.C. § 7601(d). Just as with States, if a Tribe

does not create a valid implementation plan, the EPA

will promulgate a FIP to govern the tribal lands until

the Tribe creates a valid TIP, if and when it wishes to do

so. 40 C.F.R. § 49.11.

Both a State and a Tribe are authorized to redesignate

land within their boundaries to Class I status. 42 U.S.C.

§ 7474(a), (c). Redesignation requires that the State or

Tribe hold public hearings and analyze the “health,

environmental, economic, social, and energy effects of

the proposed redesignation.” 42 U.S.C. § 7474(b)(1)(A). If

these procedural requirements are met, the EPA has

little discretion in denying a redesignation. See Arizona v.

EPA, 151 F.3d 1205, 1208 (9th Cir. 1998) (“Once these

procedural requirements are met, EPA must approve

the request for redesignation.”). A State, however, may

object to a proposed tribal redesignation and invoke

dispute resolution under 42 U.S.C. § 7474(e). The EPA must

accept whatever agreement the State and Tribe come to,

but if they cannot come to an agreement, the EPA may
No. 08-2582 5

resolve the issue and integrate it into the relevant SIP,

TIP, or FIP. Id.

The EPA is charged with administering the permitting

process for the PSD program, but it may delegate that

authority. See 40 C.F.R. § 52.21(u). It has done so in

this case by entrusting PSD permitting authority to the

Michigan Department of Environmental Quality for

sources within the State of Michigan. See Approval and

Promulgation of Implementation Plans; Delegation of

Authority to the State of Michigan, 45 Fed. Reg. 8,348

(Feb. 7, 1980).

B

The Community is a federally-recognized Indian Tribe

in Wisconsin. See Indian Entities Recognized and Eligible

To Receive Services From the United States Bureau of

Indian Affairs, 73 Fed. Reg. 18,553, 18,554 (Apr. 4, 2008). It

inhabits an area rich in lakes, wetlands, and forests, and

it sees the preservation of these lands as crucial to its

cultural heritage. For example, the Community’s belief

system requires that plants and animals that are used

for medicines and religious ceremonies be obtained in a

pure form from a clean environment. With increasing

pollution, the Community saw its heritage threatened,

and so it decided to ask the EPA to redesignate certain

of its reservation lands from Class II to Class I status.

On December 7, 1993, the Community submitted to the

EPA an informal request for redesignation of its reservation lands within Forest County, Wisconsin. The Com-
6 No. 08-2582

munity gave notice to various entities of the public hearings it held on the subject, and it also submitted a Technical Report to the EPA, outlining the various effects of the

redesignation. On February 14, 1995, the Community

submitted its formal request for redesignation to the

EPA. The EPA reviewed the Community’s materials

and determined that the procedural requirements for

redesignation had been met. Thus, on June 29, 1995, the

EPA issued a Notice of Proposed Rulemaking that suggested approval of the redesignation request and sought

public comment. Because of the proposed redesignation’s

effect on emitting sources in surrounding lands, Michigan

and Wisconsin objected to the proposed change

and invoked the dispute resolution provisions of 42

U.S.C. § 7474(e). The Community-Wisconsin negotiations

ended successfully with the signing of a Memorandum of

Agreement (“MOA”). In contrast, the Community-Michigan dealings broke down, and the Community requested

that the EPA resolve the dispute.

On December 18, 2006, the EPA again issued a Notice

requesting comments on a proposed rule that would

approve the Community’s proposed redesignation and

implement it through a FIP promulgated by the EPA.

After public hearings and an extended comment period,

the EPA promulgated its final action redesignating the

Community lands to Class I status on April 29, 2008. See

Approval and Promulgation of Air Quality Implementation

Plans; Wisconsin; Redesignation of the Forest County

Potawatomi Community Reservation to a PSD Class I Area,

73 Fed. Reg. 23,086 (Apr. 29, 2008). The EPA also issued

two companion announcements concluding the dispute
No. 08-2582 7

resolutions with Wisconsin and Michigan. The Wisconsin dispute resolution action incorporated the MOA,

which exempted certain Wisconsin lands from Class I

restrictions. See Redesignation of the Forest County

Potawatomi Community Reservation to a PSD Class I

Area; Dispute Resolution With the State of Wisconsin, 73

Fed. Reg. 23,111, 23,114 (Apr. 29, 2008) (subjecting only

“major sources in Wisconsin located within a ten (10)

mile radius of any redesignated Tribal land to performing

an increment analysis and to meeting consumption requirements applicable to a Class I area.”). The EPA’s

approval of Class I status for the tribal lands will affect

emitting sources within Michigan. See Redesignation of

the Forest County Potawatomi Community Reservation

to a PSD Class I Area; Dispute Resolution with the State

of Michigan, 73 Fed. Reg. 23,107 (Apr. 29, 2008). Michigan

seeks review of these three final administrative rulings.

II

As the party invoking federal jurisdiction, Michigan

bears the burden of demonstrating that it has standing,

which has three requirements:

First, the plaintiff must have suffered an “injury in

fact”—an invasion of a legally protected interest which

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

imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second,

there must be a causal connection between the

injury and the conduct complained of—the injury has

to be “fairly . . . trace[able] to the challenged action of

the defendant, and not . . . the result [of] the independ-
8 No. 08-2582

ent action of some third party not before the court.”

Third, it must be “likely,” as opposed to merely

“speculative,” that the injury will be “redressed by

a favorable decision.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)

(internal citations omitted); Citizens Against Ruining the

Env’t v. EPA, 535 F.3d 670, 675 (7th Cir. 2008). Michigan

challenges the EPA’s final actions on three grounds.

First, it believes that the EPA used an improper

procedural vehicle for redesignating the Community

lands. Second, it argues that the EPA acted punitively

by applying more stringent restrictions to Michigan

than to Wisconsin. Third, it contends that the EPA did not

provide sufficient regulatory guidance in its final actions. We review each of these arguments below.

Michigan’s primary complaint is that the EPA used the

wrong process to redesignate the Community’s lands to

Class I status. Specifically, Michigan believes that the

EPA should have required the Community to promulgate

a TIP. The parties agree that a TIP was never created, but

they disagree about whether a TIP was necessary and

whether the regulations codified at 40 C.F.R. § 52.21

constitute a valid FIP governing the Class I area. We

do not reach the merits of these arguments at this

stage, however, because Michigan may not establish

standing by simply identifying a procedural defect in

the redesignation process. See Summers v. Earth Island Inst.,

129 S. Ct. 1142, 1151 (2009) (“deprivation of a procedural

right without some concrete interest that is affected by

the deprivation—a procedural right in vacuo—is insufficient to create Article III standing”).
No. 08-2582 9

In order to connect the perceived procedural defect to

cognizable injuries for standing purposes, Michigan

asserts various harms that flow from the redesignation.

The first of these alleged injuries is the EPA’s imposition

of stricter requirements on emitting sources in Michigan

than in Wisconsin. Michigan characterizes this as the

EPA’s retaliating against Michigan for pursuing its

legal challenge to the redesignation.

It is true that, as a result of the MOA, fewer sources in

Wisconsin are subject to Class I restrictions than would

otherwise be the case. See Dispute Resolution With

the State of Wisconsin, 73 Fed. Reg. at 23,114. Wisconsin’s treatment, however, is the result of the successful

negotiations between it and the Community, and the

EPA does not typically interfere with such agreements.

See Federal Implementation Plan Under the Clean

Air Act for Certain Trust Lands of the Forest County

Potawatomi Community Reservation if Designated as a

PSD Class I Area; State of Wisconsin, 71 Fed. Reg. 75,694,

75,696 (Dec. 8, 2006) (“[W]here the parties successfully

reach agreement through the dispute resolution process,

EPA is inclined to read section 164(e) of the Act to

provide that EPA has no further role to play in the

dispute resolution process.”). Michigan had access to

the very same dispute resolution opportunity, but it

failed to come to an agreement with the Community. That

meant that the EPA was obliged to resolve the dispute.

42 U.S.C. § 7474(e). It did so by imposing on Michigan’s

emitting sources the standard Class I restrictions, which

are the same restrictions that apply to emissions that

will reach any Class I area, whether it is within Michigan
10 No. 08-2582

(as some are) or any other state or tribal land. Far from

being punitive, this is the normal effect of a Class I

redesignation. If Michigan objects to these consequences,

it should pursue its dispute with Congress, not the

courts. There is no cognizable injury here.

Even assuming injury, it is doubtful that Michigan is

the injured party. There is no evidence in this record

indicating that the new restrictions affect Michigan directly; rather, they affect emitting sources within Michigan

that want to construct new facilities or modify existing

ones. These sources form part of Michigan’s economy,

and thus the redesignation affects Michigan’s economic

interests. Traditionally a State may sue based upon such

interests by invoking the doctrine of parens patriae. That

option is not available here, however, because a State

may not use that doctrine to sue the United States. See

Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923) (“It

cannot be conceded that a State, as parens patriae, may

institute judicial proceedings to protect citizens of the

United States from the operation of the statutes thereof. . . .

In that field it is the United States, and not the State,

which represents them as parens patriae, when such representation becomes appropriate; and to the former, and

not to the latter, they must look for such protective measures as flow from that status.”). Nor can Michigan

invoke the “special solicitude” afforded to States for

standing purposes when there is a quasi-sovereign

interest at stake. See Massachusetts v. EPA, 549 U.S. 497,

520-23 (2007). In contrast to that case, in which Massachusetts’s coastal lands were threatened by rising sea

levels, Michigan’s air can only benefit from the

redesignation of Community lands to Class I status.
No. 08-2582 11

Michigan also alleges injury by claiming that the

redesignation creates “numerous complications and

unworkable conflicts” in its air pollution programs.

Michigan cites the EPA’s lack of regulatory guidance on

a range of topics, including the relevant Air Quality

Related Values (“AQRVs”) for the Class I area as well

as the radial distance from the Class I area that Michigan

should consider in evaluating permit applications. It

also complains that it does not know the identity of the

federal land manager (“Manager”) for the Community’s

Class I area.

As a preliminary matter, these issues appear to be

outside the scope of our review. Nowhere in the Act or

its corresponding regulations is the requirement that

AQRVs, radial distances, or the identity of Managers be

published as a prerequisite to redesignation. See 42 U.S.C.

§ 7474; 40 C.F.R. § 52.21(g). Thus, these alleged harms

do not seem germane to the challenge Michigan makes

here to the EPA’s final redesignation actions. Even if

they were, Michigan would lack standing because it

would be unable to show redressability. There is no

reason to think that a TIP, Michigan’s preferred procedural vehicle for redesignation, would include this

type of regulatory guidance while a SIP or the EPA’s

existing FIP do not. Nonetheless, we briefly discuss Michigan’s concerns below.

Michigan’s uncertainty regarding key parts of the

permitting process is understandable. The EPA has not

yet published final guidance on a series of topics related

to the permitting process, although proposed rules and
12 No. 08-2582

unofficial guidance do exist. See Prevention of Significant

Deterioration (PSD) and Nonattainment New Source

Review (NSR), 61 Fed. Reg. 38,249 (July 23, 1996); EPA

NEW SOURCE REVIEW WORKSHOP MANUAL DRAFT (1990) E.1-

E.24. Beyond these materials, Michigan also has access

to additional regulatory guidance. A lengthy set of PSD

regulations governs the Community Class I area. See 40

C.F.R. § 52.21. In its reply brief, Michigan withdrew its

challenge to these regulations, which was wise, as we

would not have jurisdiction to review them. See 42 U.S.C.

§ 7607(b)(1) (“nationally applicable regulations promulgated, or final action taken, by the Administrator under

this Act may be filed only in the United States Court

of Appeals for the District of Columbia”).

In addition, as Michigan knows from its experience

with nearby Class I areas, such as the Boundary Waters

Canoe Area Wilderness in Minnesota, 40 C.F.R. § 81.415,

and the Seney Wilderness Area in Michigan’s own

Upper Peninsula, 40 C.F.R. § 81.414, the issues it raises

are often hashed out in the context of the application

process for a particular permit and frequently involve

a series of cooperative arrangements. See Bernard F.

Hawkins, Jr. & Mary Ellen Ternes, The New Source

Review Program: Prevention of Significant Deterioration and

Nonattainment New Source Review, in THE CLEAN AIR ACT

HANDBOOK 131, 171 (Robert J. Martineau, Jr. & David P.

Novello eds., 2nd ed. 2004) (noting that a permit

applicant should consult with the permitting agency and

Managers to determine potentially affected Class I areas

and relevant AQRVs). Thus, while the general lack of
No. 08-2582 13

regulatory guidance is a concern in this area, Michigan’s

challenge comes at the wrong point in the process.

Michigan’s concern about the identity of the Manager

derives from its statutory duty to provide

notice of the permit application to the Federal Land

Manager and the Federal official charged with direct

responsibility for management of any lands within

a class I area which may be affected by emissions

from the proposed facility.

42 U.S.C. § 7475(d)(2)(A). If it cannot provide notice to

the relevant Managers, then it may be open to a citizen

suit under the Act. See 42 U.S.C. § 7604(a) (“any person

may commence a civil action on his own behalf . . .

against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty

under this Act which is not discretionary with the Administrator”).

But closer inspection reveals that this concern is unfounded. The identity of the Manager is determinable

from the existing regulations that govern the Community’s Class I area. 40 C.F.R. § 52.21(b)(24) specifically

defines the Manager as “the Secretary of the department

with authority over such lands.” For the mandatory

Class I areas established by 42 U.S.C. § 7472(a), such as

parks, wilderness areas, and forests, the Managers are

the Department of Interior’s National Park Service and

Fish and Wildlife Service, and the Department of Agriculture’s Forest Service. 40 C.F.R. §§ 81.400 et seq. For the

Community Class I area, the Manager appears to be the

EPA itself, as it currently administers the regulations at
14 No. 08-2582

40 C.F.R. § 52.21 governing the Community Class I area.

Once the Community promulgates a valid TIP (if it

chooses to do so), the EPA may delegate managerial

responsibilities to it. Such a move would be consistent

with the EPA’s own policies towards Indian Tribes.

See EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL PROGRAMS ON INDIAN RESERVATIONS 2 (1984)

(reaffirmed in 2005) (“Until Tribal Governments are

willing and able to assume full responsibility for

delegable programs, the Agency will retain responsibility for managing programs for reservations.”). Until the

EPA delegates managerial responsibilities to the Community, Michigan may fulfill its statutory duty to

provide notice to the Community Class I area Manager by

notifying the EPA of any relevant permit application.

* * *

The Community has waited over fifteen years for

finality on the redesignation of its lands. Michigan’s

challenge to the EPA’s redesignation actions raises

some important issues about the PSD program’s

regulatory structure, but Michigan has failed to allege a

cognizable injury in fact and thus lacks standing to

pursue this case. As a result, the Community need not

wait any longer.

We DISMISS the petition for review.

9-9-09