Sierra Club v. Environmental Protection Agency

          Argued May 1, 2019

          On Petition for Review of Final Action of the United States Environmental Protection Agency

          Keri N. Powell argued the cause for petitioner. With her on the briefs were Patton Dycus and Joshua Smith.

          David J. Kaplan, Senior Attorney, U.S. Department of Justice, argued the cause for respondent Environmental Protection Agency. With him on the brief were Jeffrey Bossert Clark, Assistant Attorney General, Jonathan D. Brightbill, Deputy Assistant Attorney General, and Simi Bhat, Attorney.

          E. Blaine Rawson argued the cause for respondent-intervenor PacifiCorp. With him on the brief were Megan McKay Withroder and Marie Bradshaw Durrant.

          Sean D. Reyes, Attorney General, Office of the Attorney General for the State of Utah, Tyler R. Green, Solicitor General, Utah Attorney General, Christian C. Stephens, and Marina V. Thomas, Assistant Attorneys General, were on the brief for intervenor State of Utah.

          Shannon S. Broome and Charles H. Knauss were on the brief for amicus curiae Air Permitting Forum in support of respondent United States Environmental Protection Agency.

          Before: Rogers, Tatel and Pillard, Circuit Judges.

          OPINION

          ROGERS, CIRCUIT JUDGE:

         The threshold question the court must decide that is ultimately dispositive is whether venue is proper in this court pursuant to Section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1). Sierra Club filed a petition for the Administrator of the Environmental Protection Agency to object to a renewal of an operating permit under Title V of the Clean Air Act issued by the State of Utah for the Hunter Power Plant in Emery County, Utah. The renewal permit incorporated requirements in a preconstruction permit under Title I that the Hunter Power Plant obtained in 1997. Based on a new interpretation of his obligations under Title V, the Administrator denied the petition for objection without examining the merits of Sierra Club's claim. Sierra Club seeks vacatur and remand. Because the Order denying the petition for objection is neither a nationally applicable regulation nor determined by the Administrator to have nationwide scope or effect, venue is not proper in this court. Accordingly, we must dismiss the petition for review.

         I.

         Title V of the Clean Air Act requires certain stationary sources of air pollution to obtain operating permits. 42 U.S.C. § 7661b. The permit must include enforceable emissions standards and other conditions as necessary to assure compliance with the Clean Air Act's "applicable requirements" for air pollution prevention and control. Id. § 7661c(a). EPA regulations implementing Title V define "applicable requirements" to include the terms and conditions of Title I preconstruction permits, which must be obtained prior to the construction or modification of certain air pollution sources. 40 C.F.R. § 70.2; see also 42 U.S.C. §§ 7475, 7502(c)(5), 7503.

         States administer Title V through state implementation plans, which must be approved by EPA. Id. § 7661a(d). When implementing these plans, state permitting authorities must submit Title V permit applications and proposed permits to EPA for review. Id. § 7661d(a). If the Administrator of EPA determines that a proposed permit does not comply with the applicable requirements, then the Administrator "shall . . . object to its issuance." Id. § 7661d(b)(1). If the Administrator does not object within 45 days of receiving a proposed permit, then "any person" may petition the Administrator to object. Id. § 7661d(b)(2). The Administrator of EPA must grant or deny the petition within 60 days, and he must object to the issuance of the proposed permit if the petition demonstrates that a permit is not in compliance with applicable requirements. Id. Title V permits must be renewed every five years. Id. § 7661a(b)(5)(B).

         PacifiCorp operates the Hunter Power Plant in Emery County, Utah. Pursuant to the Utah state implementation plan, PacifiCorp is required to apply for a Title V operating permit for the Hunter Power Plant. Id. §§ 7661a(a), 7661c(a). PacifiCorp also was required to obtain a Title I preconstruction permit prior to making various modifications to the Hunter Power Plant in the late 1990s. Id. § 7410(a)(2)(c). On December 18, 1997, PacifiCorp obtained a preconstruction permit for the Hunter Power Plant under Utah's EPA-approved Title I preconstruction permit program. The Utah Department of Environmental Quality, Division of Air Quality ("Utah Department") found that the upcoming modifications would not raise the Hunter Power Plant's emissions levels because the Plant was placing enforceable limits on its potential to emit. Therefore, the planned construction projects were not classified as major ...