3fo tlje Supreme Court of tfie Unite* States* OTHER STATES AND ...
FILM)
MAR - 7 2014 OEFHOiSCFTME CLERK
NO. 13-940
3fo tlje Supreme Court of tfie Unite* States* STATE OF NORTH DAKOTA Petitioner, v.
UNITED STATES ENVIRONMENTAl!
PROTECTION AGENCY, k>t al. Respondents.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit
BRIEF OF AMICUS CURIAE STATES OF
ARIZONA AND NEBRASKA AN© FOURTEEN
OTHER STATES AND STATE AGENCIES IN SUPPORT OF PETITION
JON BRUNING
Attorney General State of Nebraska
2115 State Capitol Lincoln, Nebraska 68509 (402) 471-2682
THOMAS C. HOENE Counsel o f Record Attorney General
State of Arizona 1275 Wes t Washington Street
Phoenix, Arizona 85007
(602) 542
8535
Tom..Home@azag gov
Wilson-Epes Printing Co., Inc. - (202) 789-0096 - Washington, q>. C. 2000;>
TABLE OF CONTENTS
Page i
TABLE OF CONTENTS
TABLE OF AUTHORITIES....
IDENTITY AND INTEREST OF
.11
AMICUS
CURIAE
.1
INTRODUCTION
.1
BACKGROUND
.4
ARGUMENT
.7
I.
The Tenth and Ejighth Circuits Misapprehended the Standard of Review
II.
The Petition Raises Issuers of Gifeat Precedential Importance
CONCLUSION
7
15 18
li
TART.F, OF AUTHORITIES
Page(s) Cases
Alaska Department of Environmental Conservation v. EPJ} passim
540 U.S. 461 (2004) Am. Corn Growers Ass % v. EPA 291 F.3d 1 (D.C. C lr . 2002)
4, 5,6, 10
Arizona v. EPA,
No. 13-70366 (9th C ir., filed ^Jan. 3tL, 2013)
16
Arizona v. EPA,
No. 13-73383 (9th Cir., filed Sept. 27, 2013)
Cliffs Natural Resources, Inc. v EPA, No. 13-1758 (8th Ci|r., filed Apr .4, 2013)
16
16
Gen. Motors Corp. v. United States, 4, 18
496 U.S. 530 (1990:
Marsh v. Or. Natural Res. Council, 14
490 U.S. 360(1989) Martinez et al v. EPA,
No. 11-9567 (10th C?ir., filed Oct. 21, 2011) Michigan v. EPA,
No. 13-2130 (8th C Lr., filed May 2 ,2013)
Nat'l Parks Conservat ion Ass'n
v.
1? 16
EPA
No. 12-1343 (D.C. Cir., filed Aug. 0,2012)
7
m
Nebraska v. EPA,
No. 12-3084 (8th Cir
, filed S^pt. 4, £012)
North Dakota v. EPA, 730 F.3d 750 (8th Civ. 2013) \
\
17 passim
Oklahoma v. EPA,
723 F.3d 1201 (10th Cir. 2013)
, passim
PPL Montana, LLC v. EPA, No. 12-73757 (9th Cir., filed Nov. 16,2012)
17
San Juan Citizens Alliance v. St iles, 654 F.3d 1038 (lOtb Cir. 2011)
12
Utah v. EPA,
No. 13-9535 (10th (Jir., filed Mar. 21, 2013)
17
Statutes
5 U.S.C. § 706(2)
8
42 U.S.C. §§7407-10...
4
42 U.S.C. §7410(k)(3).
4
42 U.S.C. §7413(a)(5).
5, 9, 10
42 U.S.C. §7471
5
42 U.S.C. §7475
42 U.S.C. § 7475(a)(4)
5
42 U.S.C. §7477
5, 9, 10
42 U.S.C. §7491
3, 5, 10
IV
42 U.S.C. § 7491(a)
42 U.S.C. § 7491(b)(2)
5
42 U.S.C. § 7491(g)(2) Other Authorities
40 C.F.R. § 51.308 (2013).
..6
64 Fed. Reg. 35,714 (Jvjlly 1, 1999)
..6
70 Fed. Reg. at 39,137
11
70 Fed. Reg. 39,104 (Jiily 6, 200!5)
..6
76 Fed. Reg. 52,388 (Aug. 22, 2011).
16
76 Fed. Reg. 81,728 (Dec 28, 2(jll)
.16
77 Fed. Reg. 14,604 (M*ar. 12, 2012)
.16
77 Fed. Reg. 20,894 (Apr. 6, 2012)
.16
77 Fed. Reg. 33,642 (June 7, 2012)
...7
77 Fed. Reg. 39,425; (July 3, 2012)
.16
77 Fed. Reg. 40,150 (July 6, 2012)
.16
77 Fed. Reg. 50,936 (Aug. 23, 2012).
..16
77 Fed. Reg. 71,533 (Dec. 3, 2012)
..16
77 Fed. Reg. 72,512 (Dec. 5, 2012)
..16
77 Fed. Reg. 74,355 (Dec. 14, 2012)
..16
78 Fed. Reg. 8,706 (Febl 6, 2013)
16
78 Fed. Reg. 46,142 (Jufy 30, 20^3)
16
79 Fed. Reg. 5,032 (Janj. 30, 2014)
.16
IDENTITY AND INTEREST OF AMICUS CURIAE
Like the State of North Dakotk, Amici States Arizona, Louisiana, tie Louisiana Department of Montana, ]V(Iichig£|n Environmental Qua ity, Nebraska, Oklahoma, Utah and Wyoming have
submitted
regional
haze
pjlan s
to
Environmental Protection Agency (EPA)
the U.S. that contain
determinations of Best Availab e Retrofit Technology
(BART) or similar determinations fdr
certain large
case with the BART and Oklahoma's plan, EPA disapp roved other determinations that these Amici States made. These Amici States hafve filed Petitio ns for Review of
industrial
As
facilities.1
was
the
EPA's disapprovals.2 The additional Amici Alabama , Alas ka, Kansas, the Nevada Department of Cons^r vation and Natural Resources, Divisioh of E nvnfonme:Jital Protection, Ohio, South Carolin a, and West Virginia are
interested in the issuers presentedd heife because of the important precedent he lowe|r
for future regional haie
courts
decision sets
plans and BART and similar
determinations these States mjay make and for other
cases involving State
ederal
relationships under the
Clean Air Act (CAA). INTRODUCTION Confusion exists in the lower courts regarding the correct standard cf review to a pply where a State or other party appeals; an EPA findiii g that the State
acted unreasonably in carrying out obligations that 1 Amici provided timely Rule 37(2)(a).
2 See citations infra.
notice of th: s
brief to the parties under
the CAA delegates to the State. See North Dakota v. EPA, 730 F.3d 750 (8th Cir. 2013) ("North Dakota"), Oklahoma v. EPA 723 F.3d 1201 (10th Cir. 2013)
('Oklahoma"). These courts have failed to apply this Alaska Department of Court's holding in Environmental Conservation v EPA, 540 U.S. 461
should grant North Dakota's Petition for Writ of Certiorari so that the
(2004) ("AD£C").
This Court
Court can correct the lower courts' error and to
ensure that the ess imtial hblding of ADEC on standard of review is not undermined in these and
other pending and
futulre cases
In ADEC, this Court ruled that EPA's CAA "supervisory" authority over State determinations of best available control technology (Bj\CT) empowers
d sapprov^
State BACT determination that it finds to be unreasonable, ADEC, 540 U.S. at 484-88. The Ccourt, however, carefully limited its decis ion by rulin\l that EPA does not have a roving commission to substitute its judgment for what a r ^asonable BACfT determination should be in pi ace of a Stai;e 's reasonable determination. Id. at 488-89. EPA task instead is
the
agency
to
a
to determine whether the State had acted arbitrarily, Id. The Court recog:nize d thai its decision as to the respective EPA and State BACT i oles necessarily
affects the standard by which courts $ihould review an EPA disapproval of a State BACT determination. Id. at 494. According to the Cou|rt, because the statute
delegates authority make BACT
to States in the
first instance to
re determinations and restricts
EPA to an
"oversight" role, EPA bears the burden in court of 3 Oklahoma has also filed a Petit ion for Writ of Certiorari, Docket No. 13-921, and i|nost of amici herfe have also filed an
amicus brief in support of Oklahoma' s
Petition
proving
that
the
indeed
State
had
acted
unreasonably. Id. The four member dissect i n ADEC warned that the Court's decisidn would result in lower courts
standard of As the dissent review. ADEC, 540 J.S. at 510 that, because de wrote, "EPA and the ijaajority conce States enjoy substantial discre ion ifl making BACT determinations, courts reviewiti g EPA s order must
being forced to applj
an
unwieldy
ac^ed arbitrarily but the acted arbitrarily in E convoluted question whether EPA ask not simply whethe::
EPA
finding the State acted arbitrarily The dissent's
over the
concer
standard cf
Id.
n abclmt potential confusion
review
has
proved to be
prescient, as the North Dakota and Oklahoma courts, in contravention of 4DEC, require the States to prove that EPA had acted arbitrarily rather than that the States had acted arbitrarily. North Ddkota, 730 F.3d at 766; Oklahoma, 723 F.3d at 1216- 7. The two decisions involve State de terminations that a r e similar to the State BACT determinations that Were at issue in ADEC. In North Dakota, the State determined the
requiring EPA, per ADEC, to
prove
level of controls re quiied to make reas onable progress in improving visiibility under the CAA visibility7491; in U.S.* 42 improvement prog:r a m
Oklahoma, the State determined fiART under the
same program. Both Courts, applyingg the traditional
arbitrary and capric|ious test, assjxmed that they must defer to EPAs asonable determinations even if EPA had failed to show that the State's contrary determinations were arbitrary. Id. Neither Court recognized that, und^ r ADEC, a State's reasonable result, contrary determination must te upheld.. As to ADEC, States c a n no longer count on their
reasonable decisions ur der the
the appellate courts,
ai;
(DAA being affirmed in
least to the extent that EPA
sonajble outcome that it prefers. The North Dakota and Oklahoma decisions are particularly probbmatic because their context was the CAA's vis*bility-imbroverhent program,
can advance another
where
Congress
rea
grained Stages especially broad
authority. See Am Corn Grouters Ass 'n v. EPA, 291 F.3d 1, 8 (D.C. Cir. 2002) ('Corn Growers"). :t giriant the Writ of It is critical that this Court Certiorari to correct the lower c o u rts' error at this time. As discussed below, EPA has disapproved
BART
and
similar
State
determinations in the
visibility-improvement program i n a number of states, and challenges to these disapprovals are now
pending in several federal
courts.
appeellat
The
hjas already bee n
used as key decision, North precedent in the North Dakota, Dakota, 730 F.3d at 761, and these precedents are now likely to be r elied on i.n the other pending appeals. The North Dakota arid Oklahoma decisions Oklahoma decision
are also likely to serve as pi-ecedeht in numerous other cases in which courts review EPA disapprovals
im plementation plajns (SIPs) and, the ADEC dissent highlighted, in
of CAA state
indeed,
as
numerous other Cas 2S involvin g federal statutes s to carry out ei which create State- Federal partnership
Congress' intent. AD$C, 540 U.S. at
518.
BACKGRO JND
The
CAA controls
airj pollution through a
system of shared Federal and State responsibility. Gen. Motors Corp. v United Slates, 496 U.S. 530, 532 (1990). In general, EPA pijomulg ates air quality standards and States formulate SlPi to achieve those
standards. See 42 U.S. C.
§§ 740J7-10
ADEC, 540 U.S.
at 469-70. EPA may d}sapp rove a SIP if it finds that the plan does not meet "the applicable- requirements" of the Act. 42 U.S.C. § f7410(k)($) Among the CAA requirements that a SIP must meet is the requirement to implement the statutory Prevention
program. 42 73.
Sig:nificant Deteriibration (PSD) U.S.C. § 7471; ADEC, 540 U.S. at 470-
of
Under the PSD
preconstruction
program
per mits
for
States issue new
and
PSD
modified
facilities. 42 U.S.C. § 7475; ADEC, 540 U.S. at 47273. In order to g :*ant a permit States must determine the BACT control^ that the permittee 42 U.S.C. § must install to limit air pollution.
7475(a)(4); ADEC, h4
The statute U.S. atj 470-73 gives EPA authority to take enforcement action to prevent the construction or mo dification of a facility where the construetian or modificatio n "does not
conform to the [PSDJ]
requirements
42 U.S.C. §
is not actm g in compliance 7477, or where a with any requirement or prohibition of the Act," including PSD, 42 U.S C. §741?(a)(5) See ADEC, 540
U.S. at 473-74. A
must also the statutory
SIP
contain
measures
to
visibility-improvement implement program. 42 U.S.C I 7491; kee also Corn Growers, 291 F.3d at 2-5. The prograrii,'s goal is to eliminate manmade visibility in pairment in national parks and wilderness areas terrhed "class
I arejas." 42 U.S.C. §
this goal be achieve^
particular date, but
7491(a). Congress did not sp^cifica ly mandate that by a:
instead mandated that EPA promu gate regulations requiring States to Submit SIPs that include such measures "as may b necessai"-T to make reasonable
progress toward meejtin g the national goal." Id., §
6
7491(b)(2). Congress
ajlso required that, as a part of
ess," States should "reasonable determine BART emissions limits for certain large industrial facilities. Id § 7491(b)(2)(A)
making
States determine
BART by considering five
factors set forth in § 7491(g)(2). As explained by the D.C Circuit irj Corn Growers, States
cost-effectiveness
consider these factors in making the discretionary 'the degree of whether determination of obtained fifom installing a improvement in visibi ity particular set of emissions controls is "justified by
the cost." Corn. Growers 291 F. 3d
at 7.
specifically regulations EPA adopted addressing the effect cf regional haze on Class I area Regional Haze visibility impairment in 1999. Regulations, 64 Fed Reg. 35,714 (July 1, 1999). 're States to submit plans to These regulations reqjuir EPA setting forth
State
rea|onabl^-progress goals
and long-term strateg Les for meeting those goals. 40 C.F.R. § 51.308 (201£ ). The States are required to submit new plans r assessing and revising their
goals and strategies e n July SI, 2018 and every ten years thereafter. Id. § 51.308(f). The States' longterm strategies must include enforceable emission limitations, including determinations of BART. Id. § 51.308(d)(3), (e). The BART provisions of EPA s 1999 Regional Haze Rule were overt urnejd in Corn Growers, in part
because they intr ud^d
on authority Congress had
delegated to the Statejs
Corn
on
Growers, 291 F.3d at 7-
9. EPA issued new regulatic-ns on remand of Corn Growers in 2005 that called on State s to submit firstRegional Haze phase SIPs by December 2007.
Regulations for Best Available Retrofit Technology
(BART) Determination^, 70 Fed- Reg.
39,104 (July 6,
2005),
For the progr[•am s first phase , EPA allowed most eastern states o rely on a stringent EPA
regional pollution transport prog:r a m instead of having to make BART determinations in the power sector.4 This exemptiibn, however, i$ under judicial review,5 and if the D.C. Circuit overturns this exemption, some eeastern State 3 coukjl be required to
make numerous powe^ -sector
BART determinations.
In the Midwest and West, intruding in Oklahoma, North Dakota and som|e of the Amici States, EPA has overridden a number of State first-p hase BART and similar determination and replaced, them with its See infra, own much more cosstly requirements
Argument II. In the Oklahoma
panel
affirmed
determinations set
divided Tenth Circuit
case
EFA'ss for|th
disapproval
in Ok
of
BART
ahom^'s regional haze
In the North SIP. Oklahoma, 723 F.3d at 1204 Circiiit affirmed an Dakota decision, the Eighth Ci] pproval of North Dakota's analogous EPA dlisapprovai
determination that
two
electric! generating units were
not required to instal pollutiic|n controls in order for the State to make reaso nable progress in improving Nor th Dak ota, 730 F.3d at Class I area visibilit; 755.
•4 Regional Haze: Revision^ to Provis: to Source-Specific Best Available
ons
Governing Alternatives
Retrofit Technology (BART)
Disappro^;als, and Federal Implementation Plans, 77 Fed. Reg 33,642 dJune 7, 2012). Determinations,
Limited
SIP
5 Nat'l Parks Conservation Ass'n v. EPA, Nc 12-1343 (D.C. Cir. filed Aug. 6, 2012).
8
ARGUMENT
I.
The
Eighth
Misapprehended the
Tenth Circuits Standard of Review and
In both the Oklahoma and North Dakota cases, EPA disapproved the States' determinations a s unreasonable because it credited its own technical
judgments over the contrary tpchnic|d judgments of the States. North Dakota, 730 Ff.3d at 764-66; Oklahoma, 723 F.3d at 1215-17. The- records before these courts therefore contained directly conflicting
expert judgments, forc:.n g the courts t(>
Id. Both courts mad^ standard of review,
their choice
he courts
make a choice.
by applying the
fouild that that the
was the Administrative Procedure Act's afbi ;rary and capricious test, 5 U.S.C. § 706(2), see Oklahom a, 723 F.3d at 1211,
applicable standard of review
North Dakota, 730 F 3d at 758 and they found that the arbitrary and cap}- icious standard required them to defer to EPAs eexpert judgments over those of the States. See Oklaho ma, 723 F.3d at 1216-17; North Dakota, 730 F.3d at 706
application of the standard of roneojis. Uhder ADEC, the review, however, was The
courts
courts should have
whether the States'
judgments were re asojnable, n^t whether EPAs were. ADEC, 540 U.S. at 494 As a result hey should have deferred to the States); judgm^nts, n|ot EPAs, unless EPA carried its burdlen of showing that the States' judgments were unreasonable 1. In ADEC, the Supreme Codrt examined the division of Federal 4nd State authority under the CAA in the context of an appeal by Alaska of an EPA enforcement action that sought to prohibit the State
9
from issuing a PSD permit At)EC, 540 U.S. at 468. EPA took the position that Alaska's BACT determinations were treasonable, i d. at 485, but
Alaska argued that EPA
lacked powejr to disapprove
State BACT determinations o n the grounds of reasonableness, id. Alaska majintain^d that because the CAA gives States authority to determine BACT requirements, EPAs 3ACT authority is limited to
determining whether the Statte-issu^d PSD permit
contains a BACT condition. Id. This Court disa Ifreed. Relyiin g on the fact that the statutory emforcement pr Ovisioiis under which
EPA acted, 42 U.S.C. §§ 7413 a)(5) knd 7477, grant duthorifcty over State EPA "notably cap acious
permitting decisions, ADEC, Court
ruled
540 U. S. at 484, the
EPA
that
"supervisory
had
responsibility" over the constr dction ^nd modification of pollutant-emittin g facilities, including the authority to disappr eve u n r e asonable State BACT determinations. Id. at 484-485 . The Court, however, was careful to note that EPA'ss authority in this regard was limited ''to ensur[in g] thaj; a State's BACT determination is r easonatMy moor d to the Act's provisions." Id. at 484-89. The Court said that because the statute gives States "considerable
leeway" and '"places primarv authority with the States '"appropriate deference ' to
re
srjonsibilities and
E
the
A
must
State's
give BACT
A may step in
E Id. at 490- 91 determination is BACT gency's "[o]nly when a state a reasoned a n ^lysis'" and is 'not based on a
determinations.
'"arbitrary."'
Id. at
490-91
(quoting EPA guidance
and
See also id.
at 487
decision)* that EPA's role
is to ensure that the State deter mination is based "'on
a reasoned analysis'" and '"on easonable grounds'").
10
The Court reco nized triat its formulation of the relative EPA and State B ACT rbles affects the
Court must apply when a standard of review thbtt a
reviewing an EPA
disapproval of a State BACT
determination. Accor ling to the Court, consistent with EPAs limited oversight role, 'the production and persuasion burde\%s rema\ n with EPA and the underlying question a reviewing court resolves
hvjhethe^ the state agency's []
remains the same: determination was rea onable." Id. at 494 (emphasis
added). Although this Court in ADEC affirmed EPA's disapproval of the Alaska's BACT determination, it did so only after a s s u n n g itself that EPA had met its burden of proving the State's decisioji was arbitrary. Id. at 488.
2. The Suprem Court's decision in ADEC does not capture the full iegree of deference that EPA owes States under 42 U.S.C § 1491 the statutory
provision at issue in
North Dakota and Oklahoma.
As stated above, this Court 3 basi$ in ADEC for finding authority in IfPA to dlsapp r •ove State BACT determinations that the A gency found to be unreasonable
was
the
capacious" U.S. C. §§ 7413(a)(5)
notably
enforcement authority that 42 and 7477 grant EPA. ADEC, 540 U, 5. at 484. Those enforcement sections w e r e not at issue in North Moreover unlike the PSD Dakota or Oklahoma program reviewed in ADEC the § 7491 visibilityimprovement program does net addrless the National Ambient Air Qu alitty Standards br health-based concerns but is concerned instead with the aesthetic value of improving visibility. Nor does § 7491 grant EPA "notably cap acious" authority To the contrary, the provision is hig hly deferential to State authority, .3d at 8 (States have "broad Corn, Growers, 291 determinations ")• authority over BART
11
As set forth in Corn Growers the Conference
Committee that a uthored the final ve^r•sion of § 7491 inserted the phrase as determined by the State" in
two places in the text specifically to clarify that States have overarchijng authority to make BART Corn Growers, 291 F.3d at 8. This language was insertec. as part of "a a agreement to determinations.
reject the House bill s provisions giving EPA the power to determine whether a source contributes to visibility impairment and, if so what; BART controls As EPA has Id should be applied to tjhat source
explained, "how [SJtat'es
make BART determinations
or how they determinjg
which
concern with insuring
that
are subject to BART" is an area 4rhere the Act and legislative history indicate that Congr ess evi, need a special Re gional
decision makers'
sources
would
States Haze
be
the
Regulations, 70
Fed. Reg. at 39,137 (em ( phasis ^dded) 3. Perhaps giiven the (as the ADEC dissent put
it) "unwieldy" nature of the standard of review in court must ask
cases of this nature, in which
"whether EPA acted arbitrarily in inding that the State acted arbitraril y," ADE§, 540 U.S. at 510, the simply got the Oklahoma and North Dakota standard of review wr ong. Both couifts affirmed EPA discretionary disapprovals of hi| hly technica determinations that tihe CAA explici.try entrusted to the States, because the coiirts yer e under the mistaken view that they were rjequired by the arbitrary and capr icious standard o review to defer OklaJior na. 723 F.3d at In doing so, 1217: North Dakota. 730 F.3d at 766 to ADEC 8 however, they failed to confoi m
to EPA's expert judgments.
disapproves discretionary State determinations, EPA bears the
admonition
that,
burden of proving
where
EPA
ths.t the State's
determination was
12
the underlying lfesolved remains the
arbitrary. ADEC, 540
U.S. at 494 ('
question a reviewing
court
same: '[wjhether the dtate agie^icy'ss Q determination was reasonable'"). Contrary to the courts' view, the ol provm g that EPA State does not bear the burde n of
was arbitrary. Id. In Oklahoma, EPA disappr ove d the State's BART determinations because EPA iihose to believe
the technical conclusions of its own exfperts over those of the State's experts n the question of whether the State, in analyzing the cost-effectivenless of installing pollution control e qui|pment, should
have assumed
the need to install arger or smaller equipment, would have e whether installing srjialler equipment other technical number Of been feasible, and
questions.
Oklahotma
1216-17.G
.3d a
723
In
affirming EPA in wha it termed aa "close case," id. at 1217, a divided panel of the couift felt that the standard of review rec uired it
o
ere dit
EPA's experts
over the State's experts
As t :ie cour t said, "[l]eft to tbe part ies' experts, we of evaluate the argmrhents
to the EPA, Citizens Alliance v. Si iles, 654 F.3d Cir. 2011) ("The deference W0 give
must give deference
especially strong
wher e
the
involve technical or scientific 6 The Court's discussion cf the •s EPA's and Oklahoma's experts
set forth in the portion of
Siting San Juan
038, 1045 (10th agency action is challbn ged decisions matters
within the
technical dittsagreement between on
the cost
the court'
effectiveness issue is
opinion that addresses the
ation plan. EPA'ss federal implement; i: tated, however, that court s 15-17. Th4 Oklahoma, 723 F.3d at 12 its affirmance of a basis :ssue was its analysis of this same
State's
challenge
to
a's BART determination. Id. at EPA's disapproval of Oklahoma's below in svaluat: g the EPA's action 1213 ("And, as we discuss OG&E's costing assumptions many of in promulgating its FIP
were unjustified.").
13
agency's area of exscpertise.
).
0[klahoha, 723 F.3d at
1216-1217. The court dlso mad^ clear that Oklahoma
had the substantial bur den o proving that EPA's expert opinions were u n r e asoiiable, as opposed to EPA having the bur den of pr ovmg that the State's expert opinions were unreasonable Id. ("While the petitioners criticize s o m e of the engineering assumptions made by the EPA , they do not explain why the EPA was not justified in r ehKng on OG&E's own consultant's mod^l o r w by the EPA's detailed responses in its te ch^iical subport document were insufficient in addressto g its concerns
Similarly in North Dakota, EPA disapproved
epiission controls were not required at tivo electijic genteratin g facilities to achieve the State's goals for makin g "reasonable
the State's determination that
new
progress" in improvin visibility, becjause
it chose to
credit its own expert j udgments over North Dakota's, North Dakota, 730 F. 3d at 765. Specifiically, EPA's expert view was that North Dakota's visibility model did not accurately simulate visibility improvement resulting from installin goontrpls at the two facilities.
Id. at 766. EPA beliejved underestimated visib the nonlinear nature
that North. Dakota's model
lity improvement
MAR - 7 2014 OEFHOiSCFTME CLERK
NO. 13-940
3fo tlje Supreme Court of tfie Unite* States* STATE OF NORTH DAKOTA Petitioner, v.
UNITED STATES ENVIRONMENTAl!
PROTECTION AGENCY, k>t al. Respondents.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit
BRIEF OF AMICUS CURIAE STATES OF
ARIZONA AND NEBRASKA AN© FOURTEEN
OTHER STATES AND STATE AGENCIES IN SUPPORT OF PETITION
JON BRUNING
Attorney General State of Nebraska
2115 State Capitol Lincoln, Nebraska 68509 (402) 471-2682
THOMAS C. HOENE Counsel o f Record Attorney General
State of Arizona 1275 Wes t Washington Street
Phoenix, Arizona 85007
(602) 542
8535
Tom..Home@azag gov
Wilson-Epes Printing Co., Inc. - (202) 789-0096 - Washington, q>. C. 2000;>
TABLE OF CONTENTS
Page i
TABLE OF CONTENTS
TABLE OF AUTHORITIES....
IDENTITY AND INTEREST OF
.11
AMICUS
CURIAE
.1
INTRODUCTION
.1
BACKGROUND
.4
ARGUMENT
.7
I.
The Tenth and Ejighth Circuits Misapprehended the Standard of Review
II.
The Petition Raises Issuers of Gifeat Precedential Importance
CONCLUSION
7
15 18
li
TART.F, OF AUTHORITIES
Page(s) Cases
Alaska Department of Environmental Conservation v. EPJ} passim
540 U.S. 461 (2004) Am. Corn Growers Ass % v. EPA 291 F.3d 1 (D.C. C lr . 2002)
4, 5,6, 10
Arizona v. EPA,
No. 13-70366 (9th C ir., filed ^Jan. 3tL, 2013)
16
Arizona v. EPA,
No. 13-73383 (9th Cir., filed Sept. 27, 2013)
Cliffs Natural Resources, Inc. v EPA, No. 13-1758 (8th Ci|r., filed Apr .4, 2013)
16
16
Gen. Motors Corp. v. United States, 4, 18
496 U.S. 530 (1990:
Marsh v. Or. Natural Res. Council, 14
490 U.S. 360(1989) Martinez et al v. EPA,
No. 11-9567 (10th C?ir., filed Oct. 21, 2011) Michigan v. EPA,
No. 13-2130 (8th C Lr., filed May 2 ,2013)
Nat'l Parks Conservat ion Ass'n
v.
1? 16
EPA
No. 12-1343 (D.C. Cir., filed Aug. 0,2012)
7
m
Nebraska v. EPA,
No. 12-3084 (8th Cir
, filed S^pt. 4, £012)
North Dakota v. EPA, 730 F.3d 750 (8th Civ. 2013) \
\
17 passim
Oklahoma v. EPA,
723 F.3d 1201 (10th Cir. 2013)
, passim
PPL Montana, LLC v. EPA, No. 12-73757 (9th Cir., filed Nov. 16,2012)
17
San Juan Citizens Alliance v. St iles, 654 F.3d 1038 (lOtb Cir. 2011)
12
Utah v. EPA,
No. 13-9535 (10th (Jir., filed Mar. 21, 2013)
17
Statutes
5 U.S.C. § 706(2)
8
42 U.S.C. §§7407-10...
4
42 U.S.C. §7410(k)(3).
4
42 U.S.C. §7413(a)(5).
5, 9, 10
42 U.S.C. §7471
5
42 U.S.C. §7475
42 U.S.C. § 7475(a)(4)
5
42 U.S.C. §7477
5, 9, 10
42 U.S.C. §7491
3, 5, 10
IV
42 U.S.C. § 7491(a)
42 U.S.C. § 7491(b)(2)
5
42 U.S.C. § 7491(g)(2) Other Authorities
40 C.F.R. § 51.308 (2013).
..6
64 Fed. Reg. 35,714 (Jvjlly 1, 1999)
..6
70 Fed. Reg. at 39,137
11
70 Fed. Reg. 39,104 (Jiily 6, 200!5)
..6
76 Fed. Reg. 52,388 (Aug. 22, 2011).
16
76 Fed. Reg. 81,728 (Dec 28, 2(jll)
.16
77 Fed. Reg. 14,604 (M*ar. 12, 2012)
.16
77 Fed. Reg. 20,894 (Apr. 6, 2012)
.16
77 Fed. Reg. 33,642 (June 7, 2012)
...7
77 Fed. Reg. 39,425; (July 3, 2012)
.16
77 Fed. Reg. 40,150 (July 6, 2012)
.16
77 Fed. Reg. 50,936 (Aug. 23, 2012).
..16
77 Fed. Reg. 71,533 (Dec. 3, 2012)
..16
77 Fed. Reg. 72,512 (Dec. 5, 2012)
..16
77 Fed. Reg. 74,355 (Dec. 14, 2012)
..16
78 Fed. Reg. 8,706 (Febl 6, 2013)
16
78 Fed. Reg. 46,142 (Jufy 30, 20^3)
16
79 Fed. Reg. 5,032 (Janj. 30, 2014)
.16
IDENTITY AND INTEREST OF AMICUS CURIAE
Like the State of North Dakotk, Amici States Arizona, Louisiana, tie Louisiana Department of Montana, ]V(Iichig£|n Environmental Qua ity, Nebraska, Oklahoma, Utah and Wyoming have
submitted
regional
haze
pjlan s
to
Environmental Protection Agency (EPA)
the U.S. that contain
determinations of Best Availab e Retrofit Technology
(BART) or similar determinations fdr
certain large
case with the BART and Oklahoma's plan, EPA disapp roved other determinations that these Amici States made. These Amici States hafve filed Petitio ns for Review of
industrial
As
facilities.1
was
the
EPA's disapprovals.2 The additional Amici Alabama , Alas ka, Kansas, the Nevada Department of Cons^r vation and Natural Resources, Divisioh of E nvnfonme:Jital Protection, Ohio, South Carolin a, and West Virginia are
interested in the issuers presentedd heife because of the important precedent he lowe|r
for future regional haie
courts
decision sets
plans and BART and similar
determinations these States mjay make and for other
cases involving State
ederal
relationships under the
Clean Air Act (CAA). INTRODUCTION Confusion exists in the lower courts regarding the correct standard cf review to a pply where a State or other party appeals; an EPA findiii g that the State
acted unreasonably in carrying out obligations that 1 Amici provided timely Rule 37(2)(a).
2 See citations infra.
notice of th: s
brief to the parties under
the CAA delegates to the State. See North Dakota v. EPA, 730 F.3d 750 (8th Cir. 2013) ("North Dakota"), Oklahoma v. EPA 723 F.3d 1201 (10th Cir. 2013)
('Oklahoma"). These courts have failed to apply this Alaska Department of Court's holding in Environmental Conservation v EPA, 540 U.S. 461
should grant North Dakota's Petition for Writ of Certiorari so that the
(2004) ("AD£C").
This Court
Court can correct the lower courts' error and to
ensure that the ess imtial hblding of ADEC on standard of review is not undermined in these and
other pending and
futulre cases
In ADEC, this Court ruled that EPA's CAA "supervisory" authority over State determinations of best available control technology (Bj\CT) empowers
d sapprov^
State BACT determination that it finds to be unreasonable, ADEC, 540 U.S. at 484-88. The Ccourt, however, carefully limited its decis ion by rulin\l that EPA does not have a roving commission to substitute its judgment for what a r ^asonable BACfT determination should be in pi ace of a Stai;e 's reasonable determination. Id. at 488-89. EPA task instead is
the
agency
to
a
to determine whether the State had acted arbitrarily, Id. The Court recog:nize d thai its decision as to the respective EPA and State BACT i oles necessarily
affects the standard by which courts $ihould review an EPA disapproval of a State BACT determination. Id. at 494. According to the Cou|rt, because the statute
delegates authority make BACT
to States in the
first instance to
re determinations and restricts
EPA to an
"oversight" role, EPA bears the burden in court of 3 Oklahoma has also filed a Petit ion for Writ of Certiorari, Docket No. 13-921, and i|nost of amici herfe have also filed an
amicus brief in support of Oklahoma' s
Petition
proving
that
the
indeed
State
had
acted
unreasonably. Id. The four member dissect i n ADEC warned that the Court's decisidn would result in lower courts
standard of As the dissent review. ADEC, 540 J.S. at 510 that, because de wrote, "EPA and the ijaajority conce States enjoy substantial discre ion ifl making BACT determinations, courts reviewiti g EPA s order must
being forced to applj
an
unwieldy
ac^ed arbitrarily but the acted arbitrarily in E convoluted question whether EPA ask not simply whethe::
EPA
finding the State acted arbitrarily The dissent's
over the
concer
standard cf
Id.
n abclmt potential confusion
review
has
proved to be
prescient, as the North Dakota and Oklahoma courts, in contravention of 4DEC, require the States to prove that EPA had acted arbitrarily rather than that the States had acted arbitrarily. North Ddkota, 730 F.3d at 766; Oklahoma, 723 F.3d at 1216- 7. The two decisions involve State de terminations that a r e similar to the State BACT determinations that Were at issue in ADEC. In North Dakota, the State determined the
requiring EPA, per ADEC, to
prove
level of controls re quiied to make reas onable progress in improving visiibility under the CAA visibility7491; in U.S.* 42 improvement prog:r a m
Oklahoma, the State determined fiART under the
same program. Both Courts, applyingg the traditional
arbitrary and capric|ious test, assjxmed that they must defer to EPAs asonable determinations even if EPA had failed to show that the State's contrary determinations were arbitrary. Id. Neither Court recognized that, und^ r ADEC, a State's reasonable result, contrary determination must te upheld.. As to ADEC, States c a n no longer count on their
reasonable decisions ur der the
the appellate courts,
ai;
(DAA being affirmed in
least to the extent that EPA
sonajble outcome that it prefers. The North Dakota and Oklahoma decisions are particularly probbmatic because their context was the CAA's vis*bility-imbroverhent program,
can advance another
where
Congress
rea
grained Stages especially broad
authority. See Am Corn Grouters Ass 'n v. EPA, 291 F.3d 1, 8 (D.C. Cir. 2002) ('Corn Growers"). :t giriant the Writ of It is critical that this Court Certiorari to correct the lower c o u rts' error at this time. As discussed below, EPA has disapproved
BART
and
similar
State
determinations in the
visibility-improvement program i n a number of states, and challenges to these disapprovals are now
pending in several federal
courts.
appeellat
The
hjas already bee n
used as key decision, North precedent in the North Dakota, Dakota, 730 F.3d at 761, and these precedents are now likely to be r elied on i.n the other pending appeals. The North Dakota arid Oklahoma decisions Oklahoma decision
are also likely to serve as pi-ecedeht in numerous other cases in which courts review EPA disapprovals
im plementation plajns (SIPs) and, the ADEC dissent highlighted, in
of CAA state
indeed,
as
numerous other Cas 2S involvin g federal statutes s to carry out ei which create State- Federal partnership
Congress' intent. AD$C, 540 U.S. at
518.
BACKGRO JND
The
CAA controls
airj pollution through a
system of shared Federal and State responsibility. Gen. Motors Corp. v United Slates, 496 U.S. 530, 532 (1990). In general, EPA pijomulg ates air quality standards and States formulate SlPi to achieve those
standards. See 42 U.S. C.
§§ 740J7-10
ADEC, 540 U.S.
at 469-70. EPA may d}sapp rove a SIP if it finds that the plan does not meet "the applicable- requirements" of the Act. 42 U.S.C. § f7410(k)($) Among the CAA requirements that a SIP must meet is the requirement to implement the statutory Prevention
program. 42 73.
Sig:nificant Deteriibration (PSD) U.S.C. § 7471; ADEC, 540 U.S. at 470-
of
Under the PSD
preconstruction
program
per mits
for
States issue new
and
PSD
modified
facilities. 42 U.S.C. § 7475; ADEC, 540 U.S. at 47273. In order to g :*ant a permit States must determine the BACT control^ that the permittee 42 U.S.C. § must install to limit air pollution.
7475(a)(4); ADEC, h4
The statute U.S. atj 470-73 gives EPA authority to take enforcement action to prevent the construction or mo dification of a facility where the construetian or modificatio n "does not
conform to the [PSDJ]
requirements
42 U.S.C. §
is not actm g in compliance 7477, or where a with any requirement or prohibition of the Act," including PSD, 42 U.S C. §741?(a)(5) See ADEC, 540
U.S. at 473-74. A
must also the statutory
SIP
contain
measures
to
visibility-improvement implement program. 42 U.S.C I 7491; kee also Corn Growers, 291 F.3d at 2-5. The prograrii,'s goal is to eliminate manmade visibility in pairment in national parks and wilderness areas terrhed "class
I arejas." 42 U.S.C. §
this goal be achieve^
particular date, but
7491(a). Congress did not sp^cifica ly mandate that by a:
instead mandated that EPA promu gate regulations requiring States to Submit SIPs that include such measures "as may b necessai"-T to make reasonable
progress toward meejtin g the national goal." Id., §
6
7491(b)(2). Congress
ajlso required that, as a part of
ess," States should "reasonable determine BART emissions limits for certain large industrial facilities. Id § 7491(b)(2)(A)
making
States determine
BART by considering five
factors set forth in § 7491(g)(2). As explained by the D.C Circuit irj Corn Growers, States
cost-effectiveness
consider these factors in making the discretionary 'the degree of whether determination of obtained fifom installing a improvement in visibi ity particular set of emissions controls is "justified by
the cost." Corn. Growers 291 F. 3d
at 7.
specifically regulations EPA adopted addressing the effect cf regional haze on Class I area Regional Haze visibility impairment in 1999. Regulations, 64 Fed Reg. 35,714 (July 1, 1999). 're States to submit plans to These regulations reqjuir EPA setting forth
State
rea|onabl^-progress goals
and long-term strateg Les for meeting those goals. 40 C.F.R. § 51.308 (201£ ). The States are required to submit new plans r assessing and revising their
goals and strategies e n July SI, 2018 and every ten years thereafter. Id. § 51.308(f). The States' longterm strategies must include enforceable emission limitations, including determinations of BART. Id. § 51.308(d)(3), (e). The BART provisions of EPA s 1999 Regional Haze Rule were overt urnejd in Corn Growers, in part
because they intr ud^d
on authority Congress had
delegated to the Statejs
Corn
on
Growers, 291 F.3d at 7-
9. EPA issued new regulatic-ns on remand of Corn Growers in 2005 that called on State s to submit firstRegional Haze phase SIPs by December 2007.
Regulations for Best Available Retrofit Technology
(BART) Determination^, 70 Fed- Reg.
39,104 (July 6,
2005),
For the progr[•am s first phase , EPA allowed most eastern states o rely on a stringent EPA
regional pollution transport prog:r a m instead of having to make BART determinations in the power sector.4 This exemptiibn, however, i$ under judicial review,5 and if the D.C. Circuit overturns this exemption, some eeastern State 3 coukjl be required to
make numerous powe^ -sector
BART determinations.
In the Midwest and West, intruding in Oklahoma, North Dakota and som|e of the Amici States, EPA has overridden a number of State first-p hase BART and similar determination and replaced, them with its See infra, own much more cosstly requirements
Argument II. In the Oklahoma
panel
affirmed
determinations set
divided Tenth Circuit
case
EFA'ss for|th
disapproval
in Ok
of
BART
ahom^'s regional haze
In the North SIP. Oklahoma, 723 F.3d at 1204 Circiiit affirmed an Dakota decision, the Eighth Ci] pproval of North Dakota's analogous EPA dlisapprovai
determination that
two
electric! generating units were
not required to instal pollutiic|n controls in order for the State to make reaso nable progress in improving Nor th Dak ota, 730 F.3d at Class I area visibilit; 755.
•4 Regional Haze: Revision^ to Provis: to Source-Specific Best Available
ons
Governing Alternatives
Retrofit Technology (BART)
Disappro^;als, and Federal Implementation Plans, 77 Fed. Reg 33,642 dJune 7, 2012). Determinations,
Limited
SIP
5 Nat'l Parks Conservation Ass'n v. EPA, Nc 12-1343 (D.C. Cir. filed Aug. 6, 2012).
8
ARGUMENT
I.
The
Eighth
Misapprehended the
Tenth Circuits Standard of Review and
In both the Oklahoma and North Dakota cases, EPA disapproved the States' determinations a s unreasonable because it credited its own technical
judgments over the contrary tpchnic|d judgments of the States. North Dakota, 730 Ff.3d at 764-66; Oklahoma, 723 F.3d at 1215-17. The- records before these courts therefore contained directly conflicting
expert judgments, forc:.n g the courts t(>
Id. Both courts mad^ standard of review,
their choice
he courts
make a choice.
by applying the
fouild that that the
was the Administrative Procedure Act's afbi ;rary and capricious test, 5 U.S.C. § 706(2), see Oklahom a, 723 F.3d at 1211,
applicable standard of review
North Dakota, 730 F 3d at 758 and they found that the arbitrary and cap}- icious standard required them to defer to EPAs eexpert judgments over those of the States. See Oklaho ma, 723 F.3d at 1216-17; North Dakota, 730 F.3d at 706
application of the standard of roneojis. Uhder ADEC, the review, however, was The
courts
courts should have
whether the States'
judgments were re asojnable, n^t whether EPAs were. ADEC, 540 U.S. at 494 As a result hey should have deferred to the States); judgm^nts, n|ot EPAs, unless EPA carried its burdlen of showing that the States' judgments were unreasonable 1. In ADEC, the Supreme Codrt examined the division of Federal 4nd State authority under the CAA in the context of an appeal by Alaska of an EPA enforcement action that sought to prohibit the State
9
from issuing a PSD permit At)EC, 540 U.S. at 468. EPA took the position that Alaska's BACT determinations were treasonable, i d. at 485, but
Alaska argued that EPA
lacked powejr to disapprove
State BACT determinations o n the grounds of reasonableness, id. Alaska majintain^d that because the CAA gives States authority to determine BACT requirements, EPAs 3ACT authority is limited to
determining whether the Statte-issu^d PSD permit
contains a BACT condition. Id. This Court disa Ifreed. Relyiin g on the fact that the statutory emforcement pr Ovisioiis under which
EPA acted, 42 U.S.C. §§ 7413 a)(5) knd 7477, grant duthorifcty over State EPA "notably cap acious
permitting decisions, ADEC, Court
ruled
540 U. S. at 484, the
EPA
that
"supervisory
had
responsibility" over the constr dction ^nd modification of pollutant-emittin g facilities, including the authority to disappr eve u n r e asonable State BACT determinations. Id. at 484-485 . The Court, however, was careful to note that EPA'ss authority in this regard was limited ''to ensur[in g] thaj; a State's BACT determination is r easonatMy moor d to the Act's provisions." Id. at 484-89. The Court said that because the statute gives States "considerable
leeway" and '"places primarv authority with the States '"appropriate deference ' to
re
srjonsibilities and
E
the
A
must
State's
give BACT
A may step in
E Id. at 490- 91 determination is BACT gency's "[o]nly when a state a reasoned a n ^lysis'" and is 'not based on a
determinations.
'"arbitrary."'
Id. at
490-91
(quoting EPA guidance
and
See also id.
at 487
decision)* that EPA's role
is to ensure that the State deter mination is based "'on
a reasoned analysis'" and '"on easonable grounds'").
10
The Court reco nized triat its formulation of the relative EPA and State B ACT rbles affects the
Court must apply when a standard of review thbtt a
reviewing an EPA
disapproval of a State BACT
determination. Accor ling to the Court, consistent with EPAs limited oversight role, 'the production and persuasion burde\%s rema\ n with EPA and the underlying question a reviewing court resolves
hvjhethe^ the state agency's []
remains the same: determination was rea onable." Id. at 494 (emphasis
added). Although this Court in ADEC affirmed EPA's disapproval of the Alaska's BACT determination, it did so only after a s s u n n g itself that EPA had met its burden of proving the State's decisioji was arbitrary. Id. at 488.
2. The Suprem Court's decision in ADEC does not capture the full iegree of deference that EPA owes States under 42 U.S.C § 1491 the statutory
provision at issue in
North Dakota and Oklahoma.
As stated above, this Court 3 basi$ in ADEC for finding authority in IfPA to dlsapp r •ove State BACT determinations that the A gency found to be unreasonable
was
the
capacious" U.S. C. §§ 7413(a)(5)
notably
enforcement authority that 42 and 7477 grant EPA. ADEC, 540 U, 5. at 484. Those enforcement sections w e r e not at issue in North Moreover unlike the PSD Dakota or Oklahoma program reviewed in ADEC the § 7491 visibilityimprovement program does net addrless the National Ambient Air Qu alitty Standards br health-based concerns but is concerned instead with the aesthetic value of improving visibility. Nor does § 7491 grant EPA "notably cap acious" authority To the contrary, the provision is hig hly deferential to State authority, .3d at 8 (States have "broad Corn, Growers, 291 determinations ")• authority over BART
11
As set forth in Corn Growers the Conference
Committee that a uthored the final ve^r•sion of § 7491 inserted the phrase as determined by the State" in
two places in the text specifically to clarify that States have overarchijng authority to make BART Corn Growers, 291 F.3d at 8. This language was insertec. as part of "a a agreement to determinations.
reject the House bill s provisions giving EPA the power to determine whether a source contributes to visibility impairment and, if so what; BART controls As EPA has Id should be applied to tjhat source
explained, "how [SJtat'es
make BART determinations
or how they determinjg
which
concern with insuring
that
are subject to BART" is an area 4rhere the Act and legislative history indicate that Congr ess evi, need a special Re gional
decision makers'
sources
would
States Haze
be
the
Regulations, 70
Fed. Reg. at 39,137 (em ( phasis ^dded) 3. Perhaps giiven the (as the ADEC dissent put
it) "unwieldy" nature of the standard of review in court must ask
cases of this nature, in which
"whether EPA acted arbitrarily in inding that the State acted arbitraril y," ADE§, 540 U.S. at 510, the simply got the Oklahoma and North Dakota standard of review wr ong. Both couifts affirmed EPA discretionary disapprovals of hi| hly technica determinations that tihe CAA explici.try entrusted to the States, because the coiirts yer e under the mistaken view that they were rjequired by the arbitrary and capr icious standard o review to defer OklaJior na. 723 F.3d at In doing so, 1217: North Dakota. 730 F.3d at 766 to ADEC 8 however, they failed to confoi m
to EPA's expert judgments.
disapproves discretionary State determinations, EPA bears the
admonition
that,
burden of proving
where
EPA
ths.t the State's
determination was
12
the underlying lfesolved remains the
arbitrary. ADEC, 540
U.S. at 494 ('
question a reviewing
court
same: '[wjhether the dtate agie^icy'ss Q determination was reasonable'"). Contrary to the courts' view, the ol provm g that EPA State does not bear the burde n of
was arbitrary. Id. In Oklahoma, EPA disappr ove d the State's BART determinations because EPA iihose to believe
the technical conclusions of its own exfperts over those of the State's experts n the question of whether the State, in analyzing the cost-effectivenless of installing pollution control e qui|pment, should
have assumed
the need to install arger or smaller equipment, would have e whether installing srjialler equipment other technical number Of been feasible, and
questions.
Oklahotma
1216-17.G
.3d a
723
In
affirming EPA in wha it termed aa "close case," id. at 1217, a divided panel of the couift felt that the standard of review rec uired it
o
ere dit
EPA's experts
over the State's experts
As t :ie cour t said, "[l]eft to tbe part ies' experts, we of evaluate the argmrhents
to the EPA, Citizens Alliance v. Si iles, 654 F.3d Cir. 2011) ("The deference W0 give
must give deference
especially strong
wher e
the
involve technical or scientific 6 The Court's discussion cf the •s EPA's and Oklahoma's experts
set forth in the portion of
Siting San Juan
038, 1045 (10th agency action is challbn ged decisions matters
within the
technical dittsagreement between on
the cost
the court'
effectiveness issue is
opinion that addresses the
ation plan. EPA'ss federal implement; i: tated, however, that court s 15-17. Th4 Oklahoma, 723 F.3d at 12 its affirmance of a basis :ssue was its analysis of this same
State's
challenge
to
a's BART determination. Id. at EPA's disapproval of Oklahoma's below in svaluat: g the EPA's action 1213 ("And, as we discuss OG&E's costing assumptions many of in promulgating its FIP
were unjustified.").
13
agency's area of exscpertise.
).
0[klahoha, 723 F.3d at
1216-1217. The court dlso mad^ clear that Oklahoma
had the substantial bur den o proving that EPA's expert opinions were u n r e asoiiable, as opposed to EPA having the bur den of pr ovmg that the State's expert opinions were unreasonable Id. ("While the petitioners criticize s o m e of the engineering assumptions made by the EPA , they do not explain why the EPA was not justified in r ehKng on OG&E's own consultant's mod^l o r w by the EPA's detailed responses in its te ch^iical subport document were insufficient in addressto g its concerns
Similarly in North Dakota, EPA disapproved
epiission controls were not required at tivo electijic genteratin g facilities to achieve the State's goals for makin g "reasonable
the State's determination that
new
progress" in improvin visibility, becjause
it chose to
credit its own expert j udgments over North Dakota's, North Dakota, 730 F. 3d at 765. Specifiically, EPA's expert view was that North Dakota's visibility model did not accurately simulate visibility improvement resulting from installin goontrpls at the two facilities.
Id. at 766. EPA beliejved underestimated visib the nonlinear nature
that North. Dakota's model
lity improvement
