A three-judge panel at the U.S. Ninth Circuit Court of Appeals on July 17 dismissed in part and denied in part a petition for review of the U.S. Environmental Protection Agency’s approval of Nevada’s State Implementation Plan for regional haze related to the coal-fired Reid Gardner power plant of NV Energy.
WildEarth Guardians had alleged in this lawsuit that Nevada’s SIP was inadequate, and that EPA’s decision to approve it was arbitrary and capricious.
The appeals court panel on July 17 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 Guardians had standing to challenge the EPA’s decision to approve Nevada’s SO2 Best Available Retrofit Technology (BART) determination for the Reid Gardner station in southern Nevada, but concluded that the EPA’s decision was not arbitrary and capricious.
WildEarth contended that the EPA should have instead developed its own Federal Implementation Plan (FIP) to replace the Nevada SIP.
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 provided what it considers to be reasonable progress goals for attaining natural visibility conditions at the Jarbridge Wilderness Area, the state’s only Class I Federal area. The SIP limits SO2, NOx and particulate matter emissions from Reid Gardner and other facilities.
Notwithstanding WildEarth’s concerns, the EPA approved the majority of Nevada’s regional haze SIP in March 2012. In this court case, NV Energy’s Nevada Power and Sierra Pacific Power subsidiaries, and the Nevada Division of Environmental Protection (NDEP), intervened.
WildEarth couldn’t gain standing in this case in one area of the complaint because its sole claim that it had standing rests on one organization member, Veronica Egan, who lives in Colorado and regularly visits Nevada, but who has never visited the Jarbridge Wilderness area. The court said there is no real proof that certain emissions are harming Egan.
But, the appeals court conversely found that Egan can be the basis of the SO2 claim for Reid Gardner. “Egan’s declaration suffices to establish WildEarth’s standing with respect to Nevada’s SO2 BART determination for Reid Gardner,” the court wrote. “Because Egan attests to ‘specific aesthetic and recreational injuries’ resulting from emissions at Reid Gardner, she adequately demonstrates an ‘injury in fact.’”
However, on that SO2 claim, the court dismissed WildEarth’s arguments that the state’s rationale for its decision was too vague. “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.”
WildEarth had claimed that the state-imposed SO2 limit for Reid Gardner was lower than actual emissions, thus allowing the utility to actually increase emissions at the plant. The court said WildEarth misinterpreted the data in coming to this conclusion. As the EPA observes, annual emission rates used by WildEarth are not comparable to the 24-hour average emission limitation reflected in Nevada’s SIP, the court pointed out. 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, the court wrote.
Arguments about Reid Gardner emissions are somewhat moot, by the way. Nevada Power on May 2 filed with the Nevada Public Utilities Commission its latest plans to comply with a state legislative mandate to reduce its coal-fired generation. Under the plan, the company will: retire the coal-fired Reid Gardner Units 1-3 (300 MW) by the end of 2014; retire Reid Gardner Unit 4 (257 MW) by the end of 2017; and eliminate its 11.3% stake (255 MW) in the Navajo coal plant by December 2019.