On January 21, 2016, the U.S. Court of Appeals for the Eighth Circuit upheld EPA’s approval of Minnesota’s regional haze plan for five electric-generating units (EGUs) whose emissions affect visibility in Minnesota’s two Class I federal areas: the Boundary Waters Canoe Area Wilderness and Voyageurs National Park. National Parks Conservation Ass’n v. McCarthy, — F.3d —- (8th Cir. 2016).

The Clean Air Act protects visibility as well as air quality. The Regional Haze Rule, promulgated by EPA in 1999,  calls for state and federal agencies to work together to improve visibility in 156 national parks and wilderness areas, including Minnesota's Voyageurs National Park, pictured above. (Source: www.nps.gov)

The “Regional Haze Rule,” promulgated by EPA in 1999, calls for state and federal agencies to work together to improve visibility in 156 national parks and wilderness areas, including Minnesota’s Voyageurs National Park. (Source: http://www.nps.gov)

The Clean Air Act sets a national goal of natural visibility in “mandatory class I Federal areas” and requires states to implement “measures as may be necessary” for reasonable progress toward the goal. 42 U.S.C. § 7491.  For certain major stationary facilities that emit “any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in [class I Federal areas],” the Act requires the facilities to install and operate the best available retrofit technology (“BART”). Id.  However, the rule allows states to adopt alternatives to BART if the alternative will achieve greater progress toward the goal of natural visibility. On June 7, 2012, EPA determined that the Transport Rule—also known as the Cross–State Air Pollution Rule—is “better than BART” in states (including Minnesota) covered by the rule. Regional Haze: Alternatives to Source–Specific Best Available Retrofit Technology (BART) Determinations, 77 Fed. Reg. 33,642, 33,648 (June 7, 2012). On June 12, 2012, EPA approved Minnesota’s plan to use the Transport Rule instead of BART for the five EGUs at issue. Approval and Promulgation of Air Quality Implementation Plans; Minnesota; Regional Haze, 77 Fed.Reg. 34,801, 34,803 (June 12, 2012). Various non-governmental organizations challenged the decision to the Eighth Circuit, which determined it had jurisdiction pursuant to 42 U.S.C. § 7607(b)(1). Applying a deferential “arbitrary and capricious” standard of review, the court determined that EPA had acted within its sphere of expertise and that its decision was supportable on a rational basis. Accordingly, the court denied the petition for review.

Advertisements