and Submitted November 18, 2016 San Francisco, California
Petition for Review of an Order of the Environmental
A. Bartlett (argued), Environmental Law Clinic, University of
Denver Sturm College of Law, Denver, Colorado; John Barth,
Hygiene, Colorado; for Petitioners To-Nizhoni Ani, Black Mesa
Water Coalition, and Dine Citizens Against Ruining our
Vincent Harris Yazzie, pro se Petitioner.
Janette K. Brimmer (argued) and Amanda W. Goodin,
Earthjustice, Seattle, Washington; Neil Levine, Staff
Attorney, Grand Canyon Trust, Denver, Colorado; for
Petitioners National Parks Conservation Association, Sierra
Club, Grand Canyon Trust, Natural Resources Defense Council.
A. Carson (argued), Environment & Natural Resources
Division, United States Department of Justice, Denver,
Colorado; Daniel R. Dertke, Environmental Defense Section;
John C. Cruden, Assistant Attorney General; Environment &
Natural Resources Division, United States Department of
Justice, Washington, D.C.; Ann Lyons, Office of Regional
Counsel, United States Environmental Protection Agency,
Region 9, San Francisco, California; Lea Anderson, Office of
the General Counsel, United States Environmental Protection
Agency, Washington, D.C.; for Respondents.
M. Flynn (argued), Norman W. Fichthorn, and William L.
Wehrum, Hunton & Williams LLP, Washington, D.C., for
Respondent-Intervenor Salt River Project Agricultural
Improvement and Power District.
Wittman Bradley (argued), and Katherine Belzowski, Attorneys;
Paul Spruhan, Assistant Attorney General; Ethel B. Branch,
Acting Attorney General; Navajo Nation Department of Justice,
Window Rock, Arizona; for Respondent-Intervenor Navajo
B. Capehart, Z.W. Julius Chen, Merrill C. Godfrey, and Donald
R. Pongrace, Akin Gump Strauss Hauer & Feld LLP,
Washington, D.C.; Thomas L. Murphy and Linus Everling, Gila
River Indian Community Office of General Counsel, Sacaton,
Arizona; for Respondents-Intervenors Gila River Indian
L. Bernhardt and Ryan A. Smith, Brownstein Hyatt Farber
Schreck LLP, Washington, D.C., for Respondent-Intervenor
Central Arizona Water Conservation District.
Before: Mary M. Schroeder, Stephen S. Trott, and John B.
Owens, Circuit Judges.
panel denied petitions for review brought by tribal
conservation organizations and non-profit environmental
organizations challenging the United States Environmental
Protection Agency's source-specific federal
implementation plan ("FIP") under the Clean Air Act
for the Navajo Generating Station, a coal-fired power plant
on the Navajo Nation Reservation in Arizona.
panel held that the federal government's partial
ownership of the Station did not eliminate any deference to
the EPA's interpretation of the Clean Air Act and its
Clean Air Act invites States to submit to the EPA a State
Implementation Plan setting forth emission limits and other
measures to improve air visibility. If a State elects not to
submit a State Implementation Plan, or the EPA rejects the
State's plan, the EPA must generate a FIP to fill any
resulting gaps. Regional haze State Implementation Plans must
identify the "best available retrofit technology"
("BART") to reduce emissions from major emission
sources, like the Station. A State can bypass BART with a
"better than BART" alternative.
1998, the EPA issued its Tribal Authority Rule, which created
a mechanism for tribes to develop a Tribal Implementation
Plan, similar to a State Implementation Plan, to carry out
the Clean Air Act's requirements on tribal land. Because
tribes are not required to adopt Tribal Implementation Plans,
the Tribal Authority Rule authorizes the EPA to promulgate a
FIP to fill in any gaps.
panel held that the instant FIP was not subject to the Clean
Air Act's five-year deadline to implement BART because
the FIP promulgated a "better than BART"
alternative - not BART.
the Regional Haze Regulations for a BART alternative, a State
Implementation Plan must "require that all necessary
emission reductions take place during the period of the first
long-term strategy for regional haze." 40 C.F.R. §
51.308(e)(2)(iii). The panel held that the EPA reasonably
concluded that the Tribal Authority Rule applied because the
Navajo Nation had not submitted a tribal implementation plan,
which gave the EPA authority to promulgate a FIP for nitrogen
oxides emissions at the Station. The panel further held that
the EPA reasonably interpreted the Tribal Authority Rule, 40
C.F.R. §§ 49.4(e), 49.11(a), and the Regional Haze
Regulations to conclude that the emission reductions in
§ 51.308(e)(2)(iii) did not apply to FIPs for regional
haze that are promulgated in place of tribal implementation
panel held that it was reasonable for the EPA to give the
Station an emission credit when evaluating if the BART
alternative "results in greater emission reductions,
" 40 C.F.R. § 51.308(e)(3), than BART. The panel
deferred to the EPA's reasonable determination that the
FIP alternative was "better than BART" for nitrous
panel held that it was a reasonable exercise of the EPA's
discretion not to determine BART for particulate matter for
Vincent Yazzie, several tribal conservation organizations,
and certain non-profit environmental organizations
seek final review of the United States Environmental
Protection Agency's ("EPA") source-specific
Federal Implementation Plan ("FIP") under the Clean
Air Act ("CAA") for the Navajo Generating Station,
a coal-fired power plant on the Navajo Nation Reservation in
Arizona. We have jurisdiction over these
petitions, 42 U.S.C. § 7607(b)(1), and we deny them.
FACTS AND PROCEDURAL HISTORY
Navajo Generating Station
Navajo Generating Station ("Station") is the
largest coal-fired plant in the western United States, and
emits nitrogen oxides ("NOx") that affect
visibility at Class I national parks and wilderness areas,
including the Grand Canyon. The Station powers a water
distribution system that meets over 20% of Arizona's
water demands. 78 Fed. Reg. 8, 274, 8, 275, 8, 283 (Feb. 5,
2013). Coal from the Kayenta Mine, located on both Navajo and
Hopi Tribe lands, powers the Station and employs many tribal
members, and taxes and royalties from the coal are
significant parts of the tribes' revenues. Id.
at 8, 275. Under the proposed amended lease of the land from
the Navajo Nation to the owner-operators of the Station, the
Station would operate until 2044, when it would cease
conventional coal-fired generation of electricity. 79 Fed.
Reg. 46, 514, 46, 532 (Aug. 8, 2014); 78 Fed. Reg. 62, 509,
62, 514 (Oct. 22, 2013). After 2044, the Navajo Nation has
the option to continue the Station as a "new
source" that generates electricity without coal. 79 Fed.
Reg. at 46, 532. Several entities, including four utilities
(the Salt River Project, Arizona Public Service Co., NV
Energy, and Tucson Electric Power), and the Department of
Interior (through the U.S. Bureau of Reclamation), co-own the
Station. Id. at 46, 514. The utilities operate the
Station; terms of the lease bar the Navajo Nation from
controlling or regulating the operation of the Station.
See Salt River Project Agric. Improvement & Power
Dist. v. Lee, 672 F.3d 1176, 1178 n.1 (9th Cir. 2012).
Clean Air Act's Visibility Protections
1990 amendments to the CAA expanded the CAA's focus to
include regional haze, which is "visibility impairment
that is caused by the emission of air pollutants from
numerous sources located over a wide geographic area."
40 C.F.R. § 51.301; see also 42 U.S.C. §
7492. Emissions of fine particles (such as sulfates,
nitrates, and other particulate matter) and their precursors
(e.g., SO2, NOx) produce regional haze. 64 Fed. Reg. 35, 714,
35, 715 (July 1, 1999). In 1999 and again in 2005, the EPA
issued Regional Haze Regulations, and guidelines. 40 C.F.R.
§ 51.300-09; 70 Fed. Reg. 39, 104, 39, 156-72 (July 6,
2005). The Regulations set a goal of achieving natural
visibility by 2064. 40 C.F.R. § 51.308(d).
"invites each State to submit to EPA a 'State
Implementation Plan' ("SIP") setting forth
emission limits and other measures necessary to make
reasonable progress toward the national visibility
goal." Nat'l Parks Conservation Ass'n v.
EPA, 788 F.3d 1134, 1138 (9th Cir. 2015) (citing 42
U.S.C. §§ 7410(a), 7491(b)(2)). If a State elects
not to submit a SIP, or if the EPA rejects a SIP in part or
in whole, the EPA must generate a Federal Implementation Plan
("FIP") to fill any resulting gaps. Id. at
1138-39 (citing 42 U.S.C. § 7410(c)(1)(A)).
haze SIPs must identify the "best available retrofit
technology" ("BART") to reduce emissions from
certain major emission sources, like the Station. 42 U.S.C.
§ 7491(b)(2). BART is "an emission limitation based
on the degree of reduction achievable through the application
of the best system of continuous emission reduction for each
pollutant which is emitted by an existing stationary
facility." 40 C.F.R. § 51.301. Five factors dictate
BART for a particular source of regional haze.
Any source subject to BART must install and operate the
appropriate technology "as expeditiously as practicable
but in no event later than five years" after approval of
a SIP or issuance of a FIP. 42 U.S.C. § 7491(g)(4).
can bypass BART with a "better than BART"
alternative. See Arizona, 815 F.3d at 526; see
also 40 C.F.R. § 51.308(e)(2). For a state to adopt
a BART alternative, its SIP must "require that all
necessary emission reductions take place during the period of
the first long-term strategy for regional haze." 40
C.F.R. § 51.308(e)(2)(iii). In one of three ways, a
State can demonstrate "better-than-BART" through
"greater reasonable progress: (1) "[i]f the
distribution of emissions is not substantially different than
under BART, and the alternative measure results in greater
emission reductions"; (2) "[i]f the distribution of
emissions is significantly different, " then a State
must conduct "dispersion modeling, " which focuses
on visibility rather than emissions; or (3) the catch-all
"otherwise based on the clear weight of the
evidence." 40 C.F.R. § 51.308(e)(2)(i)(E), (e)(3).
Tribal Authority Rule
1990 CAA Amendments authorized the EPA "to treat Indian
Tribes as States" if certain conditions were met, and to
issue regulations outlining when that treatment should occur.
42 U.S.C. § 7601(d)(1)(A). The Amendments also permitted
the EPA to directly administer haze reduction efforts on
tribal lands if it "determine[d] that the treatment of
Indian tribes as identical to States is inappropriate or
administratively infeasible[.]" Id. §
1998, the EPA issued its "Tribal Authority Rule"
("TAR"), which created a mechanism for tribes to
develop a "Tribal Implementation Plan"
("TIP"), similar to a SIP, to carry out the
CAA's requirements on tribal land. 40 C.F.R. §§
49.1-11; 63 Fed. Reg. 7, 254 (Feb. 12, 1998). The TAR treats
eligible tribes "in the same manner as States with
respect to all provisions of the Clean Air Act and
implementing regulations, " except for mandatory plan
submittal deadlines. 40 C.F.R. § 49.3; see also
id. § 49.4. "Tribes may choose, but are not
required, to adopt [TIPs] for their reservations. Because
tribes are not required to adopt [TIPs], the TAR authorizes
EPA to promulgate [FIPs] to fill in any gaps." Ariz.
Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1119 (10th Cir.
2009) (APS). When a Tribe chooses not to issue a
TIP, the EPA must ...