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Westar Energy, Inc. v. Environmental Protection Agency

ELR Citation: 45 ELR 20100
Nos. 11-1333, (D.C. Cir., 05/26/2015)

The D.C. Circuit denied petitions for review challenging EPA's disapproval of a revision to Kansas' proposed SIP revision for the 2006 fine particulate matter (PM2.5) NAAQS. EPA disapproved the SIP revision because the submission lacked the required technical analysis evaluating whether the projected emissions reductions under the Regional Haze program would prevent Kansas from contributing to nonattainment and maintenance problems in downwind states. Kansas, a utility provider, and a local utility board challenged EPA's disapproval, but the court held that EPA acted well within the bounds of its delegated authority when it disapproved of Kansas' proposed SIP. Under the CAA, SIPs must include "adequate provisions" prohibiting in-state sources from contributing significantly to downwind nonattainment, and EPA has the authority to determine whether SIPs comply with the statutory requirements. In addition, EPA issued guidance, in advance of Kansas' submission, stating that "the state’s submission must explain whether or not emissions from the state" significantly contribute to nonattainment in other states, and, if so, "address the impact." The guidance also provides that a state's conclusion "must be supported by an adequate technical analysis." Yet, the discussion of interstate transport in Kansas' SIP was only one page long and failed to provide any analysis at all of the downwind effect of its in-state emissions. To show compliance with the CAA's good neighbor provision, Kansas largely relied on the emissions controls undertaken as part of the Regional Haze program. But Kansas' good neighbor obligations are not coextensive with its obligations under the Regional Haze program.