On Tuesday, the 3rd Circuit Court of Appeals remanded EPA’s approval of Pennsylvania’s regional haze SIP. The decision is a must-read for practitioners. It decides some important issues and provides important reminders for EPA and the states on how to build a record and how to justify decisions – or not! – based on that record.
Although seen as a defeat for Pennsylvania and the large sources subject to the regional haze rule, I don’t see it that way. Why not? The Court issued several rulings that will help EPA, the states, and large emitters in the long run. These include that:
- The Court rejected the plaintiffs’ efforts to wage a collateral attack on EPA’s decision to rely on the Transport Rule in lieu of conducting site-specific analyses of the best available retrofit technology, or BART.
- The Court rejected the argument that Pennsylvania had to consider BACT, LAER, and MACT in the BART analysis. (And I’m not sure I could have crammed any more acronyms into that sentence.)
- The Court agreed that Pennsylvania was not required to establish a fixed threshold for what constitutes a cost-effective pollution control.
So, why did EPA lose? EPA lost because:
In the end, the EPA has identified a host of problems with Pennsylvania’s BART analysis. What it has not done, however, is provide a sufficient explanation as to why it overlooked these problems and approved Pennsylvania’s SIP. Because we, as a reviewing court, need an agency to show its work before we can accept its conclusions, we will remand this case to the EPA for further consideration.
Why doesn’t it matter?
Because it just ain’t that hard for EPA to fix this. As long as there is evidence in the record to support EPA’s conclusions, it just has to explain on remand why it reached the conclusion that it was reasonable for Pennsylvania to conclude that more stringent emission limits would not have been cost-effective. As far as I can tell, this was a self-inflicted wound on EPA’s part.
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