Appeals court rejects attempt to strike down EPA approval of Minnesota haze plan

A three-judge panel at the U.S. Eighth Circuit Court of Appeals on Jan. 21 rejected an attempt by environmental groups to overturn the U.S. Environmental Protection Agency’s 2012 approval of a regional haze compliance plan by the state of Minnesota.

On June 12, 2012, EPA approved the Minnesota Regional Haze State Implementation Plan, which covered several coal-fired units. Six conservation groups then petitioned for review of the plan, which the appeals court panel denied on Jan. 21.

EPA asserted that its approval of the haze plan based on the overlapping but separate Transport Rule is a nationally-applicable action that must be reviewed in the D.C. Circuit. The conservation organizations countered that EPA’s approval of the haze plan—including Minnesota’s reliance on the Transport Rule—is a local or regional action that must be reviewed by this appeals court.

The conservation organizations attack EPA’s approval of the Minnesota haze plan, claiming the Transport Rule allowances in the plan are not “better than BART.” Minnesota proposed to use the Transport Rule instead of BART for five electricity generating units (EGUs). BART stands for Best Available Retrofit Technology.

EPA decided that Minnesota properly exercised its discretion as a Transport Rule state by using it for the five EGUs. It concluded that Minnesota’s “compliance with the Transport Rule will provide for greater reasonable progress toward improving visibility than source-specific BART controls for EGUs.” In its final approval, EPA reiterated that the Transport Rule is “an alternative program to source-specific BART for EGUs” and referred to the analysis in the Better than BART Rule.

The conservation organizations disagreed with EPA’s projected emissions under BART. The EPA rejected the conservation organizations’ numbers, referring to its analysis in the Transport Rule.

Said the appeals court ruling: “The EPA is acting within its sphere of expertise and its determination here is supportable on a rational basis. The Transport Rule seeks to achieve greater, overall reasonable progress towards improving visibility than source-specific BART. The D.C. Circuit has rejected the claim ‘that the Clean Air Act requires EPA to ensure that any BART alternative improves visibility at least as much as BART at every Class I area and in all categories of days.’ Here, Minnesota chose to use the Transport Rule, which EPA determined will achieve greater overall reasonable progress than source-specific BART.

“EPA did not rely on factors that Congress did not intend it to consider, did not entirely fail to consider an important aspect of the problem, and did not offer an explanation that runs counter to the evidence before the agency. EPA’s approval of Minnesota’s reliance on the Transport Rule was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

“The conservation organizations also seek review of the reasonable-progress goals in the Minnesota Plan. EPA approved the reasonable-progress goals in the Plan, finding Minnesota had demonstrated it was not reasonable to meet the 2064 target for the first implementation period. Although the goals do not meet the 2064 target for natural visibility conditions, this does not mean EPA arbitrarily approved Minnesota’s demonstration. Approving the Plan, EPA explained that the ‘state followed the proper approach in setting its [reasonable-progress goals] through 2018’ by considering the four factors in the regulations. Minnesota considered ‘the costs of compliance, the time needed for compliance, the energy and non-air quality environmental impacts, and the remaining useful life of the facility.’ … EPA determined that Minnesota adequately demonstrated—given the uncontrollable causes and the weighing of the four prescribed factors—that its progress goals are reasonable. … Because EPA acted rationally within its sphere of expertise, the conservation organizations’ petition for review of the Minnesota Haze Plan’s reasonable-progress goals is denied.”

The conservation groups pursuing this case have been the National Parks Conservation Association, Voyageurs National Park 1 Association, Friends of the Boundary Waters Wilderness, the Sierra Club, the Minnesota Center for Environmental Advocacy and Fresh Energy.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.