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Wildearth Guardians v. U.S. Environmental Protection Agency

United States Court of Appeals, Ninth Circuit

July 17, 2014

WILDEARTH GUARDIANS, Petitioner,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY; GINA MCCARTHY, in her official capacity as Administrator of the U.S. Environmental Protection Agency, [*] Respondents, SIERRA PACIFIC POWER COMPANY; NEVADA POWER COMPANY; THE STATE OF NEVADA, DIVISION OF ENVIRONMENTAL PROTECTION, Respondents-Intervenors

Argued and Submitted, San Francisco, California: May 14, 2014.

Page 1065

[Copyrighted Material Omitted]

Page 1066

On Petition for Review of an Order of the Environmental Protection Agency.

PETITION DISMISSED IN PART AND DENIED IN PART.

SYLLABUS

SUMMARY[***]

Environmental Law

The panel dismissed in part and denied in part a petition for review of the Environmental Protection Agency's approval of the State of Nevada's State Implementation Plan for regional haze under the Clean Air Act.

WildEarth Guardians, a non-profit environmental organization, alleged that Nevada's State Implementation Plan (SIP) was inadequate, and the EPA's decision to approve it was arbitrary and capricious.

The panel held that WildEarth Guardians lacked Article III standing to challenge the EPA's approval of the SIP's formulation of reasonable progress goals for improving visibility conditions in the Jarbridge Wilderness Area in northeastern Nevada. The panel also held that WildEarth Guardians had standing to challenge the EPA's decision to approve Nevada's Sulfur Dioxide Best Available Retrofit Technology determination for the Reid Gardner Generating Station in southern Nevada, but concluded that the EPA's decision was not arbitrary and capricious. The panel further concluded that the EPA's approval of Nevada's SIP did not violate any requirements imposed by 42 U.S.C. § 7410(1).

Sarah K. McMillan (argued), WildEarth Guardians, Missoula, Montana; James J. Tutchton, WildEarth Guardians, Centennial, Colorado; Melissa A. Hailey, W. Randolph Barnhart, P.C., Denver, Colorado, for Petitioner.

David A. Carson (argued), United States Department of Justice, Environment and Natural Resources Division, Denver, Colorado, for Respondents.

Lisa E. Jones (argued), Samuel B. Boxerman, and James R. Wedeking, Sidley Austin LLP, Washington, D.C.; Thomas Woodworth, NV Energy, Inc., Las Vegas, Nevada, for Respondents-Intervenors Nevada Power Company and Sierra Pacific Power Company.

Belinda A. Suwe (argued), Carson City, Nevada, for Respondent-Intervenor State of Nevada, Department of Conservation and Natural Resources, Division of Environmental Protection.

Before: M. Margaret McKeown and Milan D. Smith, Jr., Circuit Judges, and James L. Robart, District Judge.[**]

OPINION

Page 1067

M. SMITH, Circuit Judge:

WildEarth Guardians (WildEarth), a non-profit environmental organization, petitions for review of the Environmental Protection Agency's (EPA) approval of the State of Nevada's State Implementation Plan (SIP) for regional haze under the Clean Air Act, 42 U.S.C. § § 7401-7671q (CAA). According to WildEarth, Nevada's SIP is inadequate, and the EPA's decision to approve it was arbitrary and capricious. WildEarth thus contends that the EPA should have instead developed its own Federal Implementation Plan (FIP) under the CAA.

We conclude that WildEarth lacks Article III standing to challenge the EPA's approval of the SIP's formulation of reasonable progress goals for improving visibility conditions in the Jarbridge Wilderness Area in northeastern Nevada. While WildEarth has standing to challenge the EPA's decision to approve Nevada's Sulfur Dioxide (SO2) Best Available Retrofit Technology (BART) determination for the Reid Gardner Generating Station (Reid Gardner) in southern Nevada, we hold that the EPA's decision was not arbitrary and capricious. We further conclude that the EPA's approval of Nevada's SIP did ...


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