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Yazzie v. U.S. Environmental Protection Agency

United States Court of Appeals, Ninth Circuit

March 20, 2017

Vincent Harris Yazzie, Petitioner,
v.
U.S. Environmental Protection Agency, Respondent, Gila River Indian Community; Navajo Nation; Central Arizona Water Conservation District; Salt River Project Agricultural Improvement And Power District, Respondents-Intervenors. To' Nizhoni Ani; Black Mesa Water Coalition; Dine Citizens Against Ruining The Environment, Petitioners,
v.
U.S. Environmental Protection Agency; Scott Pruit, Administrator, Gila River Indian Community; Navajo Nation; Central Arizona Water Conservation District; Salt River Project Agricultural Improvement And Power District, Respondents-Intervenors. National Parks Conservation Association; Sierra Club; Grand Canyon Trust; Natural Resources Defense Council, Petitioners,
v.
U.S. Environmental Protection Agency; Scott Pruitt, Administrator, United States Environmental Protection Agency, Respondents, Gila River Indian Community; Navajo Nation; Central Arizona Water Conservation District; Salt River Project Agricultural Improvement And Power District, Respondents-Intervenors.

          Argued and Submitted November 18, 2016 San Francisco, California

         On Petition for Review of an Order of the Environmental Protection Agency

          Brad 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 Environment.

          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.

          David 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.

          Aaron 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.

          Colin 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 Nation.

          John 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 Community.

          David 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.

         SUMMARY [**]

         Environmental Law

         The 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.

         The 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 implementing regulations.

         The 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.

         In 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.

         The 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.

         Under 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 plans.

         The 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 oxide emissions.

         The panel held that it was a reasonable exercise of the EPA's discretion not to determine BART for particulate matter for the Station.

          OPINION

          OWENS, Circuit Judge.

         Petitioners Vincent Yazzie, several tribal conservation organizations, and certain non-profit environmental organizations (collectively "petitioners")[1] 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.[2] We have jurisdiction over these petitions, 42 U.S.C. § 7607(b)(1), and we deny them.

         I. FACTS AND PROCEDURAL HISTORY

         A. The Navajo Generating Station

         The 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).

         B. The Clean Air Act's Visibility Protections

         The 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).

         The CAA "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)).

         Regional 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.[3] 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).

         A State 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).

         C. Tribal Authority Rule

         The 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. § 7601(d)(4).

         In 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 ...


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