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American Corn Growers Ass'n v. EPA

ELR Citation: 32 ELR 20658
Nos. Nos. 99-1348 et al., 219 F.3d 1/(D.C. Cir., 05/24/2002)

The court holds that the best available retrofit technology (BART) provisions of the U.S. Environmental Protection Agency's (EPA's) regional haze rule violate the Clean Air Act (CAA), but that the rule's natural visibility goal and no degradation requirement do not. The regional haze rule calls for states to play the lead role in designing and implementing regional haze programs to clear the air in various national parks and wilderness areas. Under the regional haze rule, once a state has decided that a major stationary source is subject to BART and is considering what BART controls to place on the source, the state must analyze four of the five statutory factors under CAA §169A(g)(2) on a source-specific basis. The fifth factor is considered on a group or areawide basis. In effect, EPA bifurcated the states' determination of the appropriate BART emission limitations for specific sources.

The court first holds that the regional haze rule's BART provisions violate the CAA. The text and structure of the CAA indicate that EPA's bifurcation of the BART determination is impermissible. The language of CAA §169A(g)(2) can be read no other way than to indicate that all five factors inform the states' inquiries into what BART controls are appropriate for particular sources. To treat one of the five statutory factors in such a dramatically different fashion distorts the judgments Congress directed the states to make for each BART-eligible source. Additionally, the regional haze rule's BART provisions are inconsistent with CAA provisions giving the states broad authority over BART determinations. Therefore, the court remanded the regional haze rule's BART provisions to EPA. The court next holds, however, that the natural visibility goal and the no degradation requirement were properly promulgated and are not arbitrary or capricious. The provisions are reasonable and are consistent with the CAA. Lastly, the court holds that its decision to invalidate the BART provisions rendered unripe an environmental group's claims that EPA did not go far enough with the rule.

A dissenting judge would hold that there is nothing in the language, structure, or history of the CAA that bars EPA from promulgating the BART provisions of its regional haze rule.

Counsel for Petitioner
Kevin L. Fast
Hunton & Williams
1900 K St. NW, Washington DC 20006
(202) 955-1500

Counsel for Respondents
Pamela S. Tonglao
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Edwards and Randolph, JJ., with Garland, J., concurring in part and dissenting in part.