Clean Air Act – Turtle Talk

The panel denied a petition for review, and upheld a decision of the Environmental Protection Agency granting two air permits authorizing exploratory drilling operations in the Arctic Ocean by a drillship and its associated fleet of support vessels.The panel upheld the EPA’s statutory and regulatory interpretations. Specifically, the panel held that the Clean Air Act is ambiguous as to the applicability of the best available control emissions to support vessels not attached to an Outer Continental Shelf source, and concluded under Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), deference that the EPA’s construction of the statute was permissible and reasonable. The panel also held that the EPA’s grant of a 500 meter ambient air exemption was not plainly erroneous or inconsistent with the EPA’s regulations.

Related opinion from last December here.

Opening Brief in Oklahoma Challenge to EPA Clean Air Act Determination re Tribal Authority

March 28, 2013Matthew L.M. Fletcher

Here is the opening brief in Oklahoma Department of Environmental Quality v. EPA (D.C. Cir.):

Oklahoma DEQ Opening Brief

D.C. Circuit Affirms EPA Regulations on Greenhouse Gases

June 26, 2012Matthew L.M. Fletcher

Here is today’s opinion in Coalition for Responsible Regulation v. EPA:

09-1322

Diné CARE National Parks Conservation Association v. EPA Complaint: Clean Air Act Suit regarding Navajo Coal

March 21, 2012Matthew L.M. Fletcher

Here is the complaint, filed in D.C.:

Diné CARE Complaint

An excerpt:

1. The federal Clean Air Act requires the Administrator of the United States Environmental Protection Agency (“Administrator” or “EPA”) to promulgate modern pollution control limits at the massive Navajo Generating Station (“NGS”) and Four Corners Power Plant (“Four Corners”), located on Navajo tribal lands in Arizona and New Mexico, to remedy unhealthful, scenery-impairing air pollution in protected national parks and wilderness areas in the American Southwest. Because EPA has failed to promulgate such pollution control limits without unreasonable delay, Plaintiffs bring this action to secure an order from the court that directs EPA to issue haze-reducing pollution control limits at NGS and Four Corners forthwith.

2. In particular, this Clean Air Act Section 304(a) citizen suit, 42 U.S.C. §7604(a), seeks an order compelling EPA to perform its nondiscretionary duties by date or dates certain to promulgate federal implementation plans (“FIPs”) establishing Best Available Retrofit Technology (“BART”) for NGS and Four Corners. EPA’s failure to perform these duties within a reasonable time has deprived Plaintiffs’ members of health, welfare, and procedural protections provided by the Clean Air Act.

Split D.C. Circuit Grants Attorney Fees to Tribal Intervenors in EPA Mercury Rule Case (New Jersey v. EPA)

December 20, 2011December 20, 2011Matthew L.M. Fletcher

Here is the opinion. And the briefs:

Tribal Motion for Atty Fees

EPA Opposition

Tribal Reply

The underlying merits decision from the D.C. Circuit vacating a Bush-era EPA mercury rule is here. BLT coverage is here.

Here are the intervening tribes and organizations:

Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Jamestown S’Klallam Tribe, Lac Courte Oreilles Band of Lake Superior Chippewa Indians, Little River Band of Ottawa Indians, Little Traverse Bay Bands of Odawa Indians, Lower Elwha Klallam Tribe, Lummi Nation, Minnesota Chippewa Tribe, National Congress of American Indians, Nisqually Tribe, and Swinomish Indian Tribe Community

Update in U.S. v. Questar

May 18, 2011May 16, 2011Matthew L.M. Fletcher

Here:

DCT Order on EPA Regulatory Authority after Tribal Disclaimer

DCT 2d Order on EPA Regulatory Authority

DCT Order on Merits (Partial Summary Judgment)

CA10 Decides Clean Air Act Case re: Navajo Nation

April 15, 2009Matthew L.M. Fletcher

The case is Arizona Public Service Company v. EPA (opinion). An excerpt:

Arizona Public Service Company (“APS”), operator and majority owner of the Four Corners Power Plant (“Plant”), and Sierra Club, Diné CARE, Diné for the C-Aquifer, and San Juan Citizens Alliance (collectively “Environmentalists”) challenge a regulation promulgated by the U.S. Environmental Protection Agency (“EPA”). The regulation at issue is known as a source-specific, federal implementation plan (“federal plan”) and was enacted pursuant to sections 301(a)and (d)(4) of the Clean Air Act, 42 U.S.C. §§ 7601(a) and (d)(4). The federal plan limits particular air emissions from the Plant. We have jurisdiction pursuant to section 307(b)(1) of the Act, 42 U.S.C. § 7607(b)(1). Because all parties agreethat the federal plan provision pertaining to fugitive dust should be remanded, see infra Part II, we do not address this emissions limit in our discussion of the facts. We grant the EPA’s motion for voluntary remand and grant in part and deny in part the petitions for review.

Here are the materials:

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