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Nebraska v. United States Environmental Protection Agency

United States Court of Appeals, Eighth Circuit

February 3, 2016

State of Nebraska, Petitioner
v.
United States Environmental Protection Agency; Gina McCarthy, Administrator, United States Environmental Protection Agency, Respondents; Sierra Club; National Parks Conservation Association, Intervenors; National Parks Conservation Association; Sierra Club, Petitioners
v.
United States Environmental Protection Agency; Lisa P. Jackson, Administrator, Respondents Nebraska Public Power District; State of Nebraska, Intervenors

Submitted September 23, 2015

Page 663

Petition for Review of an Order of the Environmental Protection Administration.

For State of Nebraska, Petitioner (12-3084): Justin D. Lavene, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Lincoln, NE.

For United States Environmental Protection Agency, Respondent (12-3084): David Aiken Carson, Senior Counsel, U.S. DEPARTMENT OF JUSTICE, Environmental Defense Section, Denver, CO; Eric H. Holder, Jr., U.S. DEPARTMENT OF JUSTICE, Office of the Attorney General, Washington, DC; Angeline Purdy, Trial Attorney, U.S. DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Environmental Enforcement Section, Washington, DC; Norman Louis Rave, Jr., U.S. DEPARTMENT OF JUSTICE, Environmental Enforcement Division, Washington, DC.

For Gina McCarthy, Administrator, United States Environmental Protection Agency (12-3084, 12-3085), Respondent: David Aiken Carson, Senior Counsel, U.S. DEPARTMENT OF JUSTICE, Environmental Defense Section, Denver, CO; David Cozad, U.S. ENVIRONMENTAL PROTECTION AGENCY, Region VII, Kansas City, KS; Eric H. Holder, Jr., U.S. DEPARTMENT OF JUSTICE, Office of the Attorney General, Washington, DC; Lisa P. Jackson, U.S. ENVIRONMENTAL PROTECTION AGENCY, Administrator, Washington, DC.

For Sierra Club, National Parks Conservation Association (12-3084, 12-3085), Intervenors: Janette K. Brimmer, EARTHJUSTICE, Seattle, WA; Matthew Evan Gerhart, SIERRA CLUB, Seattle, WA.

For United States Environmental Protection Agency, Respondent (12-3085): David Aiken Carson, Senior Counsel, U.S. DEPARTMENT OF JUSTICE, Environmental Defense Section, Denver, CO; Eric H. Holder, Jr., U.S. DEPARTMENT OF JUSTICE, Office of the Attorney General, Washington, DC; Lisa P. Jackson, U.S. ENVIRONMENTAL PROTECTION AGENCY, Administrator, Washington, DC; Mike Jay, U.S. ENVIRONMENTAL PROTECTION AGENCY, Region VII, Kansas City, KS; Angeline Purdy, Trial Attorney, U.S. DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Environmental Enforcement Section, Washington, DC; Norman Louis Rave, Jr., U.S. DEPARTMENT OF JUSTICE, Environmental Enforcement Division, Washington, DC.

For Nebraska Public Power District, Intervenor (12-3085): Brittany A. Barrientos, R. Dennis Wright, STINSON & LEONARD, Kansas City, MO; Dennis Lane, STINSON & LEONARD, Washington, DC.

Before RILEY, Chief Judge, BYE and BENTON, Circuit Judges. BYE, Circuit Judge, concurring in the result.

OPINION

Page 664

BENTON, Circuit Judge.

On July 6, 2012, EPA partially disapproved the Nebraska Regional Haze State Implementation Plan. EPA specifically rejected Nebraska's best available retrofit technology (BART) determination for Gerald Gentleman Station, substituting a Federal Implementation Plan. The State of Nebraska petitioned for review. National Parks Conservation Association and Sierra Club (conservation organizations) not only oppose Nebraska's petition but also seek review of EPA's federal plan. Nebraska Public Power District intervened on behalf of EPA, opposing the conservation organizations. Having jurisdiction under 42 U.S.C. § 7607(b)(1), this court denies the petitions for review.

I.

A.

Congress declares 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 manmade air pollution." 42 U.S.C. § 7491(a)(1). The Clean Air 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, 110 S.Ct. 2528, 110 L.Ed.2d 480 (1990). To achieve the national goal, each state must create a regional haze plan and submit it to EPA for review and approval. 42 U.S.C. § § 7410(a)(1), 7491(b)(2). EPA determines if the plan " meets all the applicable requirements of [the Act]." § 7410(k)(3). If EPA disapproves a plan, EPA promulgates a federal implementation plan to replace any disapproved part of the state plan. § 7410(c)(1)(B).

A state plan must require specific major stationary sources that " emit[] any air pollutant which may reasonably be anticipated

Page 665

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." § 7491(b)(2)(A). 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 specific stationary facilities. 40 C.F.R. § 51.301. To determine BART, a state must consider five factors: " the costs of compliance, the energy and nonair quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology." 42 U.S.C. § 7491(g)(2). Although states initially ...


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