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Appalachian Power Co. v. EPA

ELR Citation: 31 ELR 20670
Nos. No. 99-1268, 251 F.3d 1026/(D.C. Cir., 06/08/2001) remanded

The court remands three portions of technical amendments the U.S. Environmental Protection Agency (EPA) made to its nitrogen oxide (NOx) state implementation plan (SIP) call rulemaking that revised the database used to establish state budgets for NOx emissions. The court first holds that the growth factors EPA used to project future utilization rates for electric-generating units (EGUs) in 2007 were arbitrary and capricious. EPA's methodology to estimate EGU utilization rates generated seemingly implausible results, such as a negative growth forecast for some states in the coming decade, yet the Agency adopted the methodology without offering any reasoned explanation for its choice. On remand, EPA must engage in reasoned decisionmaking and explain why results that appear arbitrary on their face are, in fact, reasonable. The court next holds that insofar as the Agency's emission budgets for non-EGUs rely on the source definitions remanded in Michigan v. EPA, 213 F.3d 663, 30 ELR 20407 (D.C. Cir. 2000), they are contrary to law and must be remanded here as well. The court further holds that, in Michigan v. EPA, the NOx SIP call was vacated and remanded insofar as it applied to Missouri, but EPA included Missouri's budget in the technical amendments. Thus, the technical amendments were vacated and remanded insofar as they include a budget for Missouri under any ozone standard. All other challenges to the technical amendments, however, were denied.

[Related decisions in this litigation are published at 28 ELR 20521 and 31 ELR 20635.]

Counsel for Petitioners
Norman W. Fichthorn
Hunton & Williams
1900 K St. NW, Washington DC 20006
(202) 955-1500

Counsel for Respondent
Andrew J. Doyle
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Sentelle, J. Before Edwards and Williams, JJ.