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Chesapeake Climate Action Network v. Environmental Protection Agency

ELR Citation: 50 ELR 20060
Nos. 15-1015, (D.C. Cir., 03/13/2020)

The D.C. Circuit granted a petition to reconsider EPA's Final Mercury and Air Toxics Standards (MATS) Rule that exempted coal- and oil-burning power plant boilers' startup periods from numerical limits on hazardous air pollutants (HAPs). Environmental groups challenged the Agency's denial of their petition, arguing that EPA did not analyze which power plants were the "best performers" until the final rule and thus deprived the groups of an opportunity to timely comment. The court found the groups were not given the opportunity to comment on, propose revisions to, or otherwise challenge the process for selecting the "best performing" power plants because the Agency did not include it in the proposed rule, and thus that the final rule was not a logical outgrowth of the proposed rule. The groups also argued that EPA failed to disclose in the proposed rule its belief that emissions were immeasurable from the point of electricity generation until the air pollution control devices became operational. The court concluded that EPA clearly erred in faulting the groups' failure to divine from the proposed rule that the Agency would later conclude that specific emission measurements during startup showed that HAP emissions could not be measured in a technologically and economically feasible way. Because it was impracticable for the groups to raise their objections during the notice-and-comment period and because the objects were of central relevance to the final MATS Rule, EPA erred in denying the petition. The court therefore vacated the denial and remanded to the Agency for reconsideration.