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Media Alerts - National Parks Conservation Association v. U.S. Environmental Protection Agency - Eighth Circuit
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March 3, 2016
  National Parks Conservation Association v. U.S. Environmental Protection Agency - Eighth Circuit
Headline Eighth Circuit panel denies petition for review of EPA approval of Minnesota haze plan

Area of Law Environmental Law

Issue(s) Presented Whether the Environmental Protection Agency (EPA) properly approved the Minnesota Regional Haze State Implementation Plan.

Brief Summary Six environmental conservation organizations petitioned the Eighth Circuit for review of the EPA's decision to approve the Minnesota Regional Haze State Implementation Plan (the Minnesota Plan). The Plan is designed to improve natural visibility in the Boundary Waters Canoe Area Wilderness and Voyageurs National Park, both in Minnesota.

In keeping with the national goal of improving natural visibility in certain areas, such as national parks, states must revise their environmental plans to include measures necessary to achieve reasonable progress towards the visibility goal. One way states may do this is by requiring major stationary air pollutant emitters to install and operate best available retrofit technology (BART) to reduce their emissions. This requires a determination of what constitutes BART for each stationary pollution source. Another way states may revise their environmental plans is by adopting the EPA's alternative to BART, commonly called the Transport Rule. The EPA has generally determined that the Transport Rule is "better than BART" because it achieves greater reasonable progress towards achieving natural visibility conditions in national parks and other covered areas. 77 Fed. Reg. 33,642, 33,648 (June 7, 2012). The Transport Rule allows states it covers to use an emissions trading program instead of BART.

The Minnesota Plan relied on participation in the Transport Rule emissions trading programs instead of adopting source-specific BART. The EPA approved the plan. Six conversation groups petitioned for review, arguing that source-specific BART may achieve better results in Minnesota, and also questioning Minnesota's reasonable progress goals. After determining that it had jurisdiction over the matter, the Eighth Circuit noted that the EPA's approval of the plan can only be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Sierra Club v. EPA, 252 F.3d 943, 947 (8th Cir. 2001). In this case, the EPA conducted a technical analysis to determine the effectiveness of the Transport Rule, and relied on that analysis and two national rulings on the subject in approving the Minnesota Plan. The EPA also determined that Minnesota had adequately demonstrated that its progress goals were reasonable. The Eighth Circuit panel held that the EPA's decision to approve the Minnesota Plan was rational, followed a defensible approval process, and was not arbitrary and capricious.

Circuit Judge Bye concurred in the result, concluding that the Eighth Circuit lacked jurisdiction to the extent the conservation organizations claim that source-specific BART is better than the Transport Rule as applied to the Minnesota Plan.

The full text of the opinion may be found at

Panel Chief Judge Riley, Circuit Judges Benton and Bye

Date of Issued Opinion January 21, 2016

Decided Petition for review denied

Docket Number 12-2910, 12-3481

Counsel Janette K. Brimmer for the Petitioners and Norman Louis Rave, Jr. for the Respondents

Author Circuit Judge Benton

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 03/03/2016 09:57 AM     8th Circuit  

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