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WildEarth Guardians v. United States Environmental Protection Agency

ELR Citation: 44 ELR 20229
Nos. 12-9596 et al., (10th Cir., 10/21/2014)

The Tenth Circuit denied petitions for review challenging EPA's approval of a regional cap-and-trade program regulating sulfur dioxide (SO2) emissions to address regional haze over the Colorado Plateau, a Class I area. Under the CAA's regional haze rule for Class I areas, states have the option of using a cap-and-trade program if the participants would expect better results than they would have under "best available retrofit technology" (BART) regulations. Three states—New Mexico, Utah, and Wyoming—adopted such a program. Under the program, each participant obtained a ceiling on SO2 emissions, and if the ceiling was met, polluters would get allocations of SO2 that could be emitted. Polluters could then either use the allocations or cut emissions and trade the unused portions of the allocations. In late 2012, EPA approved the plans. Environmental groups then filed a petition for review, arguing that EPA should not have approved the trading program. But the court disagreed. EPA's determination that the trading program was "better than BART" was not arbitrary or capricious. In addition, the court rejected criticism of EPA's reliance on qualitative factors and its application of the "clear weight of the evidence" standard in making its determination. The court also rejected petitioners' arguments that the program will not achieve reasonable progress toward eliminating visibility impairment because only three of the nine eligible states participated. Neither the CAA nor EPA regulations require participation by a certain number of states or tribes. And EPA's approval of New Mexico's plan was not rendered arbitrary or capricious based on the alleged failure to conduct a four-factor analysis of a coal plant. Neither the CAA nor the regional haze rule requires a source-specific analysis in determining reasonable progress.