WildEarth Guardians v. Environmental Protection Agency

United States Court of Appeals for the Ninth Circuit · 2014 · Administrative Law

Administrative LawArticle III StandingClean Air ActRegional HazeBARTstandinginjury in facttraceability

Facts

Nevada submitted a regional haze SIP in 2009 addressing visibility at the Jarbridge Wilderness Area and setting emissions limits, including an SO2 BART limit for the Reid Gardner coal-fired power plant. EPA approved most of the SIP in 2012, and WildEarth objected that Nevada inadequately set reasonable progress goals, inadequately documented and set the Reid Gardner SO2 BART limit, and that EPA failed to ensure the SIP would not interfere with NAAQS attainment or maintenance. WildEarth relied on a declaration from member Veronica Egan, who had never visited Jarbridge but regularly visited Grand Canyon and Zion National Parks, where Nevada acknowledged Reid Gardner contributed haze. Nevada had used a detailed CH2M HILL analysis and then independently selected a stricter SO2 limit of 0.15 lb/MMbtu for Reid Gardner.

Issue

Did WildEarth have Article III standing to challenge EPA's approval of Nevada's reasonable progress goals for Jarbridge and its SO2 BART determination for Reid Gardner, and if so, was EPA's approval arbitrary and capricious? Did EPA also err by approving the SIP without an express finding that it would not interfere with attainment or maintenance of the NAAQS under 42 U.S.C. § 7410(i)?

Rule

A petitioner must demonstrate standing for each claim asserted by showing injury in fact, traceability, and redressability, and an organization may sue on behalf of a member who could sue in her own right when the claim is germane to the organization's purpose and does not require individual participation. EPA approval of a SIP is set aside only if arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In evaluating a BART determination, a state must consider the required statutory factors and include documentation for required analyses, but it may rely on outside technical analysis so long as the state itself makes the final decision. Emission limits under the Clean Air Act are continuous in nature, so annual emissions data are not necessarily comparable to a 24-hour average BART limit.

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Prairie Habitat Alliance petitions for review of the federal agency’s approval of Kansas’s haze plan. Its only member declarant, Lena Ortiz of Tulsa, says she often drives past the Flint Ridge Station near Wichita, finds the smokestacks ugly, and worries the emissions may affect her health, but she has never visited the Cimarron Preserve that is the subject of the challenged visibility-goal provision and has no plans to go there.

Does the organization have standing to challenge the approved visibility goals for the Cimarron Preserve?

Explanation. Standing must be established for each claim. An organization may sue through a member only if that member shows injury in fact, traceability, and redressability. Here, Lena’s displeasure and health worries concern a plant she passes, but she does not link those injuries to the challenged visibility goals for the preserve, and she has never visited the preserve or planned to do so. Under the majority opinion, that defeats traceability and redressability for this claim. (Derived from WildEarth Guardians v. Environmental Protection Agency (2014).)