State of North Dakota v. EPA

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The State, in consolidated petitions for review, challenged the EPA's final rule approving in part and disapproving in part two state implementation plans (SIPs) submitted by the State to address its obligations under sections 110 and 169A of the Clean Air Act (CAA), 42 U.S.C. 7401-7671q. The final rule also promulgated a federal implementation plan (FIP) to address those portions of the SIPs that were disapproved. The court concluded that, even assuming that the State's interpretation of section 7607(d)(3) was correct, the State has failed to demonstrate that the EPA's error in this regard was so serious and related to matters of such central relevance to the rule that there was a substantial likelihood that the rule would have been significantly changed if the error had not been made; the EPA's refusal to consider the existing pollution control technology in use at the Coal Creek Station because it had been voluntarily installed was arbitrary and capricious and its FIP promulgating selective non-catalytic reduction (SNCR) as the best available retrofit technology (BART) for the Coal Creek Station was therefore vacated; the State's petition for review of the EPA's disapproval of the State's SIP and promulgating of a FIP was denied because the EPA properly disapproved the State's reasonable progress determination; the Environmental Groups' motion to dismiss their petition for review was moot; and the State's petition for review of the EPA's disapproval of the interstate transport SIP was denied because the EPA properly disapproved portions of the State's regional haze SIP. Accordingly, the court granted the State's and Great River Energy's petitions for review to the extent that they challenged the EPA's BART determination for the Coal Creek Station promulgated in EPA's FIP; vacated and remanded that portion of the final rule to the EPA for further proceedings; and denied the remainder of the State's, Great River Energy's, and the Environmental Groups' petitions for review, as well as the Environmental Groups' motion for voluntary dismissal under Federal Rule of Appellate Procedure 42(b). View "State of North Dakota v. EPA" on Justia Law