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New Jersey v. EPA

United States Court of Appeals for the District of Columbia Circuit

December 6, 2007, Argued; February 8, 2008, Decided

No. 05-1097 Consolidated with Nos. 05-1104, 05-1116, 05-1118, 05-1158, 05-1159, 05-1160, 05-1162, 05-1163, 05-1164, 05-1167, 05-1174, 05-1175, 05-1176, 05-1183, 05-1189, 05-1263, 05-1267, 05-1270, 05-1271, 05-1275, 05-1277, 06-1211, 06-1220, 06-1231, 06-1287, 06-1291, 06-1293, 06-1294

Opinion

 [*577]   [**137]  ROGERS, Circuit Judge: Before the court are petitions for review of two final rules promulgated by the Environmental Protection Agency regarding the emission of hazardous air pollutants ("HAPs") from electric utility steam generating units ("EGUs"). The first rule removes coal- and oil-fired EGUs from the list of sources whose emissions are regulated under section 112 of the Clean Air Act ("CAA"), 42 U.S.C. § 7412. Revision of December 2000 Regulatory Finding ("Delisting Rule"), 70 Fed. Reg. 15,994 (Mar. 29, 2005). The second rule sets performance standards pursuant to section 111, 42 U.S.C. § 7411, for new coal-fired EGUs and establishes total mercury  [***7] emissions limits for States and certain tribal areas, along with a voluntary cap-and-trade program for new and existing coal-fired EGUs. Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units ("CAMR"), 70 Fed. Reg. 28,606 (May 18, 2005).

Petitioners contend that the Delisting Rule is contrary to the plain text and structure of section 112. In response, EPA and certain intervenors rely on section 112(n), which sets special conditions before EGUs can be regulated under section 112,  [*578]   [**138]  to justify the rule. We hold that the delisting was unlawful. Section 112 requires EPA to regulate emissions of HAPs. Section 112(n) requires EPA to regulate EGUs under section 112 when it concludes that doing so is "appropriate and necessary." In December 2000, EPA concluded that it was "appropriate and necessary" to regulate mercury emissions from coal- and oil-fired power plants under section 112 and listed these EGUs as sources of HAPs regulated under that section. In 2005, after reconsidering its previous determination, EPA purported to remove these EGUs from the section 112 list. Thereafter it promulgated CAMR under section 111. EPA's removal of these  [***8] EGUs from the section 112 list violates the CAA because section 112(c)(9) requires EPA to make specific findings before removing a source listed under section 112; EPA concedes it never made such findings. Because coal-fired EGUs are listed sources under section 112, regulation of existing coal-fired EGUs' mercury emissions under section 111 is prohibited, effectively invalidating CAMR's regulatory approach. Accordingly, the court grants the petitions and vacates both rules.

In 1970, Congress added section 112 to the CAA. Pub. L. No. 91-604, § 4(a), 84 Stat. 1676, 1685 (1970). In its original form, section 112 required EPA to list HAPs that should be regulated because they could "cause, or contribute to, an increase in mortality or an increase in serious irreversible[] or incapacitating reversible[] illness." Id. § 112(a)(1). Over the next eighteen years, however, EPA listed only eight HAPs, established standards for only seven of these and as to these seven addressed only a limited selection of possible pollution sources. See Nat'l Mining Ass'n v. EPA, 313 U.S. App. D.C. 363, 59 F.3d 1351, 1353 n.1 (D.C. Cir. 1995); S. COMM. ON ENV'T & PUB. WORKS, CLEAN AIR ACT AMENDMENTS OF 1989, S. REP. NO. 101-228,  [***9] at 131 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3516.

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517 F.3d 574 *; 380 U.S. App. D.C. 134 **; 2008 U.S. App. LEXIS 2797 ***; 38 ELR 20046; 65 ERC (BNA) 1993

STATE OF NEW JERSEY, ET AL., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT; UTILITY AIR REGULATORY GROUP, ET AL., INTERVENORS

Subsequent History: US Supreme Court certiorari denied by Util. Air Regulatory Group v. New Jersey, 555 U.S. 1169, 129 S. Ct. 1308, 173 L. Ed. 2d 583, 2009 U.S. LEXIS 1329 (2009)

US Supreme Court certiorari dismissed by EPA v. New Jersey, 555 U.S. 1162, 129 S. Ct. 1313, 173 L. Ed. 2d 575, 2009 U.S. LEXIS 1974 (2009)

Costs and fees proceeding at N.J. v. EPA, 2011 U.S. App. LEXIS 25810 (D.C. Cir., Dec. 20, 2011)

Prior History:  [***1] On Petitions for Review of the Final Action of the Environmental Protection Agency.

New Jersey v. EPA, 2007 U.S. App. LEXIS 16879 (D.C. Cir., July 11, 2007)

CORE TERMS

emissions, regulation, delisting, mercury, Environmental, listing, plain text, pollutants, Delisting Rule, Hazardous, removal, Air, Generating, coal-fired, oil-fired, Steam, coal, electric utility, public health, new source, promulgated, air pollutant, concedes, vacate

Environmental Law, Emission Standards, Stationary Emission Sources, Hazardous Pollutants, Administrative Law, Judicial Review, Standards of Review, General Overview, Administrative Proceedings & Litigation, Judicial Review, Deference to Agency Statutory Interpretation, Separation of Powers, Legislative Controls, Scope of Delegated Authority, Agency Rulemaking, Rule Application & Interpretation, Validity