Nos. 13-921 & 13-940

In the

Supreme Court of tije ©trite*

State of Oklahoma, et aZ.,Petitioners,

United States EnvironmentalProtection Agency, kt a/.

Respondents.

State of North Dakota,Petitioneri

v.

United States EnvironmentalProtection Agency, ei «Z.,

Respondents.

On Petition for a Writ of Certiorari to^ theUnited States Court ofAppeals

for the Tenth and Eighth Circuits

BRIEF OF AMERICAN IRON AND ST|1ELINSTITUTE, INDUSTRIAL

CONSUMERS OF AMERICA, RATIONALASSOCIATION OF MANUFACTURERS

NATIONAL MINING ASSOCIATIONPORTLAND CEMENT ASSOCIATION

AMICI CURIAE IN SUPPORT OF

Pierre H. BergeronSquire Sanders (US) LLP1200 19th Street, NWSuite 300Washington, D.C. 20036(202) 626-6600pierre.bergeron®

squiresanders.com

ALLEN A.KACENJARCounsel ofRecord

.FranziSanders

TowerPuMic Square^

Cleveland, OH 44114-'9-8500

..k^cenjar®rs.ci

KATYM.Squire4900127

Key

(216) 4alien.

,ANDAS

PETITIONERS

i;US) LLP

13C4

squire sanders 3m

Wilson-Epes Printing Co., Inc. - (202) 789-0096 - Washington, D. C. 20002

QUESTION PRESENTED

Whether the

Protection Agencyunder the Clean Airstate implementationsupplanted statestandards that recontravention of thecreated by Congress.

I nited Statesded its

Act to review

plari:

excee

determinationsfleet EPA's

Environmentallimited authority

regional hazewliere it has

with direct federalown preferences in

Cooperative federalism regime

11

TABLE OF CONTENTS

Page

INTEREST OF THE &MICI

SUMMARYOF THE XRGUM

ARGUMENT

I. This Court'sEPA from UsurpinClean Air Act Assi:

INT.

Reviepv Is Necessaryg the Primarygns to States..

to Prevent

^ole the

A. The Clean AirAuthority, ParticularlyRegional Haze Decision^

\ct Limits EPA:Regarding State

B. EPA's Disrega}on Its RegiohaAuthorityUncertainty

Statutory Limitsd of the

Haze SlP ReviewCreates Substantial

A. The Scope ofWill ImpactDeterminations

II. EPA's Pattern of Exceeding ItsAct Review Authority Is a RecurofNational Significance.

s ReyiewHundredsEPA'i

rim

Clean Air

g Issue

Authorityof Clean Air Act

Nationwide

B. AllowingPrimary RoleImplementat

States to Play^h Cri

of theion

Theiij Intendeditic^l to Successful

Clean Air Act.

1

4

6

6

10

14

14

18

111

1. Congress Understood ThatUniquely Situated to MakePolicy Decisions

States Are

Local

ri'ere2. EPA's Inte

RegulatoryWorld Consequences

nee With State

]Efforts Has Gra^ve Real-

CONCLUSION.

18

20

23

IV

TART.F, OF AUTHORITIES

Page(s)

Cases

Alaska Dep't of Envtl540 U.S. 461 (2004)

Conservation v EPA,A, 7, 9, 12, 17

American Corn Growers291 F.3d 1 (D.C. Clr

Ass'n \j. EPA2002)

Harbor L

Cir., filedArcelorMittal Burns

No. 14-1412 (7th2014)

ICvFeb. 5

EPA,

Arizona v. EPA,No. 13-70366 (9th2013)

25

Cir., filed Jan 31,

Cliffs Natural Res.,No. 13-1758 (8th2013) ....

Inc. v. EPAv.

(Cir., filed Apr. 4

nLouisiana Dep't ofE,No. 12-60672 (5th

2012)

vtl. Qua}Cir., fi

ity v.

SeptEPA,.4,

Luminant Generation675 F.3d 917 (5th

filed

Co. LLC v. EpA,Cir. 2012)

Martinez, et al. vNo. 11-9567 (1042011)

EPA

Cir., filod Oct. 21,

9

16

10

11

10

.15, 16

11

Michigan v. EPA,No. 13-2130 (8th Cfr., filed flay 22013) ••

Nebraska v. EPA,No. 12-3084 (8th Cjir., filed Sept. 42012)

Nevada Power Co. v.No. 12-73411 (9th2013)

New York v. United Skates,505 U.S. 144 (1992).

v

EPA,Cir., closed Dec 4,

Ohio v. EPA,No. 11-3988 (6th Cir., filed2011) :..

Sept. 9

PPL Montana, LLC v.No. 12-73757 (9th2012)

Texas v. EPA,No. 12-60128 (5th| Cir., fileld Feb2012)

EPA,Cir., filed Nov.

Train v. Natural Resources DefenseCouncil, Inc.,421 U.S. 60 (1973)

U.S. v. Minnkota831 F. Supp. 2d

Poiver Coop1109 (D

Inc.

N^D. 2011) 17

16,

23,

10

11

11

8

16

11

16

.7, 9, 19

VI

Union Elec. Co. v. EPA427 U.S. 246 (1976)

Utah v. EPA,No. 13-9535 (10th pir., filed Mar.2013)

Statutes

42U.S.C. §7401

42 U.S.C. § 7407

42U.S.C. §7409

42 U.S.C. §7410

42 U.S.C. §7413......

42 U.S.C. §7475......

42 U.S.C. § 7477

42 U.S.C. §7491......

42 U.S.C. §7602......

Other Authorities

40 C.F.R. § 51.300(b)|(3)

40 C.F.R. § 51.308(f)

76 Fed. Reg. 52,388

76 Fed. Reg. 81,728

Aug. 22,

'Dec. 28,

2011)

2011).

.6, 15

21,11

4,6

6

15

.6, 13, 15, 22

17

16

17

4,7,8,10

13

14

14

10

10

77 Fed. Reg. 14,604

77 Fed. Reg. 20,894

77 Fed. Reg. 39,425 (J

77 Fed. Reg. 40,150 (J

77 Fed. Reg. 49,308

77 Fed. Reg. 50,936

77 Fed. Reg. 51,915

77 Fed. Reg. 71,533

77 Fed. Reg. 72,512

77 Fed. Reg. 74,355

78 Fed. Reg. 8,478

78 Fed. Reg. 8,706

78 Fed. Reg. 12,460

79 Fed. Reg. 5,032 (J

vn

(Mar. 12, 2012)..

(Apr. 6, 2012) ....

uly 3, 2012) ....

uly 6, 2012)....

(Aug. 15, 21012).

(Aug. 23,^012).

(Aug. 28, 2012).

(Dec. 3, 2012)....

(Dec. 5, 2012)....

(Dec. 14, 2012)..

(Feb. 6, 2013)

(Feb. 6, 2013)

(JFeb. 22, 2013).an. 30, 2014)...

3 S. COMM. ON ENVT'L AND PUBLIC WORKS,95TH CONG., ALEGISLATIVE HISTORY OFthe Clean Air Act Amendments of1977, at 374-75 (Comm. Print 1^79)

H.R. REP. No. 95-564, at 155 (1977)

10

.10, 16

10

10

13

10

10

10

10

10

..12, 13

...10, 13

18

10

8

8

The American

("AISI"), Industrial E("IECA"), National("NAM"), Nationaland Portland Crespectfully submitsupport ofOklahoma IndustrialOklahoma Gas andand Petitioner State13-940.»

Iron ^indnergy Cc[nsum$rs

Association ofMining Ass

Steel Instituteof America

Manufacturers

sociaition ("NMA"),("PCA")

curiae in

Oklahoma,

and

No. 13-921,

a in Case No.

ement

this

PetitionersEnergy

Electric

brief asState

association

m

amici

of

Consumers,

Case

of North Dakot

INTEREST OF THE AMICI

AISI serves

American steeland advances theas the preferred mata lead role in thenew steels and Bte<^comprised of 23integrated andapproximately 125suppliers to or cusAISI's member con|ip

as

case

the

in

for

srial ofdevelopment

lmakingrilember

electric furnaceassociate

;omers

anies

voice

industry in the pubof the NorthAc policy arena

steel in the marketplacechoice. LAISI also plays

application oftechnology. AISI is

includingsteelmakers, and

members who aresteel industry.

three

companies

of therepresent over

1 Pursuant to Rule 37.2parties were provided wfile this brief. All partiebrief and written consent:accordance with Rulefor amici authored thisor entity other than theany monetary contribof this brief.

of this

ith timely3 have

s are

.6, the abrief in its

amici and

to the

Court, counselc

notice

consented

Ipeingci repr

entiretytheir re

prepar

of record for allof the intention to

to the filing of thisged herewith. In

resent that counseland that no person

presentatives madeation or submission

led:

3'?

utton

quarters of both U.Scapacity. Memberstaconite processingMichigan that areregional haze rules inof Appeals for the Eand North Dakotaof EPA's authority toplans ("SIPs") that ination.

and North

ilncludeplants m

currentlythose states b(

ghth Circuit.s raise;

review state implementationAISI members across the

case

impact

chal

IECA is an

companies with $1.01,500 facilities nmillion employeesrepresents a diversechemical, plastics,food processing,industrial gasesproducts, brewing,cement.

association of

trillion

wor

set of

iron

fertilizer

pharni.dependent

steel

American steel

companies operatingMinnesota and

enging EPA'sfore the Court

The Oklahomafundamental issues

manufacturing

in anrjual sales, overatioriwide, ar|d witlj more than 1.4

Membershipindustries including:

<J)re, aluminum, paper,glass,

buildingrefining, and

insulation,

aceutical,

m oil

NAM is

association in thesmall and largesector and in all &0nearly 12 millionmore than $1.8 t

annually, has themajor sector andsector researchpowerful voice ofand the leading ad-\

the lar

United

maijiufactureirs instates. Manufabturinmen and women

illion to

gestState

the

lar£gest economipacdounts for two-and development

the manlifactuifin'ocate for a pol:

manufacturing, representing

^very industrialg employs

contributes

U.S. economy

impact of anythirds of private-

NAM is theg community

icy agenda that

mpete in the global economythe United Stages.

helps manufacturers cjoand create jobs across

NMA is a national trade association whose

coal, metals,minerals. Its

of miningand supplies,

g firms, andRation's mining

and federalinformation

concern to its

3 and practicessound

s mineral

Operate sourcesplementation

members have

garding EPA'sfederalism

Act. As such,interested in

d its Clean

validly issueds members.

st of America'^

agrimembers produce mcand industrial andmembership also includesand mineral processing mactransporters, financial and enother businesses involved inindustries. NMA works withand state regulatory officialsand analyses on public polic:membership, and to promotethat foster the efficie at anddevelopment and use ofresources. NMA members owi(ithat are regulated underplans in various state s. NMAbeen involved in similar litig.failure to comply with themandates embedded in the CNMA and its members areensuring that the EPA doesAir Act authority in disapprstate plans to the detriment

cultural

manufacturershinerygineerinthe

Congressto provideies of

policieenvironmentallythe country'

and

s|tateand its

ation

imt

re

cooperativeAirean

keenlynot exceec

•ovmg

NMA:of

PCA represents 26 U S. cerhentoperating 79 manufacturing plantwith distribution centers in all 50nearly every Congressional districtaccount for approximately 78J% ofmaking capacity

companies

s in 34 states,

States, servicingPCA members

dbmestic cement-

SUMMARY OF THE ARGUMENT

The decisions

national significancefundamental allocation of

Air Act. As confirmed byCongress purposely limitedensuring that air pollutionprimary responsibility ofgovernments." 42 L .S.C. §Clean Air Act grants

below raise

because

critical issues of

erode Congress'po(wer under the CleantHis Court's precedent,

EPA's authority byconcerns are "the

and local

7401(a)(3). Thus, thethe primary

qualit|y decisions andfunction of

ans are "based

they

responsibility for making airlimits EPA to

determining whethei- those state pon a reasoned analysis." AlaskaConservation v. EPA, 540 U.S. 461EPA's obligation to defer to spate pqlat its apex in tbe regionalinvolves aesthetic concerns

decided should be addressed

Statefs]" after weighing economic42 U.S.C. § 7491(b)(2).

the secondary

The Oklahon

reflect a growingstatutory limits ohEPA recently supplant'haze plans with directown preferencesfederal-state balance^Given the loomingregional haze subcentury, this Cour

a and

pattern

haze

Con

as

Dep't of Envtl.490 (2004).

icy decisions iscontext, whichress expressly

determined by theother factors.

S-

and

North Dakota cases

of disregard for theauthority. Indeed,

state regionalimposing its

undermine the

struck by Congress,of hundreds of state

the next half-

intervention

e;pa: s review

ed thirteen

federal

$uch actionsof power

prospectmissions !over

s immediate

rules

is

warranted to avoidfederal power at the expense ofthe spates.

a permanent expansion of

Enabling EPAwith impunityimplications - particjilaultimately comply,effort, states have arkof the sources they rebetter suited to craftenvironmental goalsbusiness impacts. A^are also uniquelycompeting optionsenvironmental, economic

ss state rules

practicalindustry who must

3 of hands-on

understanding

rebult, states arewill further

minimizing harmfulrecognized, states

choose among

balance local

other interests.

to secopd-guehas

If EPA can ov0r

reflecting localfederal power willthan engaging withstandards that EPAinterested partiesbut to wait for EPAopposite of whatwhere states makedefer to them

problem. These casejsto reinforce theCongress anda way that will avert

also

rly forased on

unparalleledgulate. As aequirementswhile

Congresssituated to

as needed to

and

serious

year

•ride

Lgeyears

khowled

of

and i

bejcome sep-effechelp

overturn

little

state-led efforts

mpight, then itsuating. Rathercraft workable

as it prefers,practical choice

is the polar- a system

and EPA must

uous statutory

ejxcellent vehiclestruck by

,'s precedent inof further litigation.

states

can

have

s

gress

ocal

an

5 pre

willmandates. That

intendedCjm„decisions

absent an unambi^sent an

federal-state balance

endorsed by thfs Couftfdecades

ARGUMENT

ReviewThis Court's B

Prevent EPA frjomRole the Cleah

Is Necessary to

Usurping the PrimaryAir Act Assigns to States.

The Clean

Authority,State Regional Haze^ Decisions

Air Act

ParticularlyiUmits EPA's

Regarding

Congress purposeunder the Clean Air

which "air pollutipollution control . „ .States and local§ 7401(a)(3); see als$State shall haveassuring air qualityarea comprising sueAct adopts a "coowhich EPA sets

level, and eachimplementationstandards in the weSee 42 U.S.C. § 7410

ly lin|itedAct by

E1PA:L's authorityg a statute in

and air

responsibility of" 42 U.S.C.

7407(a) ("Eachsponsibility for

ehtire geographicThe Clean Air

" approach, inat the federal

unique statemeet those

for its citizens.

creatm

ion prevention:.s the primary r|

governments

42 U.S.C. §tljie primary re^

thewithin

State

e

i ')perative federalistbroad standards

state devises a

plan ("SIy thata)(2).

best

Once a state

limited to determinthe applicable statutoryU.S.C. § 7410(k)(£requirements, theapproval. Id. ("[T]hsuch submittal asapplicable requirements

is

submits

ng

and

). If aClean

regi

SIP

ActAir

to

a plaJi, EPA's role iswhetjher the plan satisfies

ulajtory criteria. 42satisfies these

mandates EPA

>i Administrator shall approvewhole if it meets all of the

of this chapter." (emphasis

added)); see also Uni246, 250 (1976). EPAthe wisdom of alimitations if they arethe [Act's] standardsCouncil, Inc., 421 U.must defer to theare "based on a

U.S. at 490.

U Elec. Co. v. EPA, 427 U.S.has "no authority to questionState's choices of emissionpart of a plan which satisfies

Train v. Natural Res. Def.60, 79 (1975). Rather, EPA

State's findings so long as theylysis!." Alaska, 540reasoned aha

atikm to d^ferin

i-ess placed ext^aStates.

to the

develop Sit

tcEPA's obligparticularly procontext, where Congthe primary role ofto "provide guidelinenot EPA, couldprogram. 42 U.S.CCongress also madewere responsiblecontributed to vi

the best available r

each of those source

(repeatedly using the;State[s]"). EPA's role:is limited to revieiviijimeasures deemedprogress towardgoal. Id.

nouiced the

d

gress

States"s to

$ 7491(b)(1) (e

the states is

regional hazeemphasis on

directed EPA

so that states,

implement theniphasis added).

not EPA,

which sources

and identifying("BART") for

C. § 7491(b)(2)determined by the

haze programo ensure they contain

to make reasonableational visibility

Con

clear that statesdecidingor

sibiltty impairmentejtrofit te<phnolo^y

s. See

phrasein the

g plansnecessary

42 U.SJas

reg

meeting" the n

The legislateemphasis on state primacy

irms that this

wks intentional:e history conf

Mr. McClure Underagreement, d(|)es the

the conference

State retain sole

8

dentification ofauthority for ifor the purunder this section?

sources

issuespose of v|sibility

Mr. Muskie:

Administrator

may impair vis

Yes; theidentifie

ibility . .

State

s a sotir

not the

ce that

Mr. McClure

true forAvailable Retrofit Technology

<\nd does| this also holddetermination qf "Best

9

es; hereMr. Muskie: \State which

constitutes

Technology

again it is the

what

Retrofit

determines

Eiest Available

PuBLifc Works, 95th

of the Clean Air

374-75 (Comm. Printalso H.R. Rep. No. 95-

3 S. COMM. ON ENVT'L ANDCong., ALegislative HistoryAct Amendments of 1977, at1979) (emphasis add^d); see564, at 155 (1977).

That focus o|n re

unsurprising sincepurely aesthetic,provisions that aimhaze program aimssuch, states arefactors when decidirfand what stepsemissions. See 42balancing requiresstate governments

etaining state control isie^nal haze program is

Clean Air Act

health, the regionalviews. As

costs and other

industries to regulateake to reduce

§ 7j491(g)(2). Thisgmen:s best made by

closer tp the issues and

he regiIlJnliketo protectto improve sfcenic

reqijired to balanceg which

falcilities tnust t

other

U.S.C.

policy juthat are

accountable to theYork v. United States,

lpcal electorate505 U.S.

Accord New

144, |67-68 (1992).

Oklahoma

conflict with the D.C. [Circuit's decisionCorn Growers Ass'n i. EPA2002). In striking downwould have forced statesfactors in a certain mannerconcluded that the regionalstates to play the leadimplementing regional haze"Congress intended the statessources impair visibility andshould apply to those sour(emphasis added),those instructions bystate regional hazeCircuit expressly concludedstates to decide. . . ." 291 F.3d

and North Dakota

The decisions

Court's decisions inuphold the primacySee Train, 421 U.S.The inconsistency w

selection of best("BACT") in the state|in Alaska isCourt held thatburdens remainqviestion a reviewirsame: Whetherdetermination was

291 F.3d

EPA res?tp balance

the

haze

in

progr

to

what

rces." 29tLBoth decisions bp

allowing EPAdeterminations

were

at 8.

role

below also

Train and

of state emissions

at 79;

th this

availabletled permitting

control

in

Inparticularly stark,"the productionwith EPA

court

the

re a

and

res

squarelyin American

1 (D.C. Cir.;ulations that

statutory

D.C. Circuit

rule "calls for

designing andims" and that

decide which

BART controls

F.3d at 2, 8low contradict

i;o second-guesswhich the D.C.

meant for "the

deViate from thisAla$ka, which both

limitations.

Alhska, 5J40 U.S. at 490.Court's! holding on the

technologyefforts at issue

that case, thisand persuasionthe underlying

solves remains thestate agency's BACT

sonalble, if light of the

statutory guidesrecord." Id. at 494. If

in the BACT

Alaska, then at leaststatute expresslydecisions are to be

U.S.C. § 7491(b)(2)

Accordingly,warranted to resolv^decisions below.

B. EPA's

Limits on

Review

and

10

the

EPA

permitting

review

the corVflict;

DisregardIts

Authority

:ts

state administrative

must meet that standard

context addressed in

as much is required where theinstructs that regional hazedetermined by tjie State[s]." 42

by this Court iscreated by the

of t

ion

tie StatutoryR^gion^l Haze SIP

SubstantialCreates

Uncertainty

The Oklaho

are just two exlimited regionalhas now supplantedin thirteen states

Eleven of these

ma

hai,e

and Nqrthambles of

SIP

regiona

directwith

2 77 Fed. Reg. 72,51214,604 (Mar. 12, 2012(July 3, 2012) (Louisiam.(Michigan); 78 Fed. RegMichigan); 77 Fed. Reg.Fed. Reg. 50,936 (Aug52,388 (Aug. 22, 2011)(Aug. 28, 2012) (New(North Dakota); 76(Oklahoma); 77 Fed, ReFed. Reg. 5,032 (Jan. 30,

(I)

York)Fed

2) (Arizonais); 77Reg. 71o. 6, 20

(J\|dy 6, 2012)(Nevad

77

• Reg.81,728

(Dec.taming)

ec. 5, 201(Arkans;

); 77 Fed.8,706 (Fe40,15023, 2012

(New Mexico)77 Fed

Reg.g. 74,3552014) (Wy

20

14

Dakota decisions

PA overstepping itsr0view authority. EPA

haze determinations

federal requirements.2actions have been challenged in

i): 77 Fed. Reg.Fed. Reg. 39,425,533 (Dec. 3, 2012)

13) (Minnesota and(Nebraska); 77

a); 76 Fed. Reg.Fed. Reg. 51,915,894 (Apr. 6, 2012)(Dec. 28, 2011)2012) (Utah); 79

11

with at least eight cases3

federal court alreadycurrently pending in four different Circuits

Oklahoma andEPA has substituted its preferences forjudgment under theregional haze determthe statute. In Oklahopreferred control technology largelySee Okla. Pet. atanalysis, Oklahomaand knowledge ofvendor-specific quoteb provided thecost estimate. Instead of simply assessing whetherOklahoma's judgmentstatute, EPA conductedanalysis, rebalanceddisapproved the SIP.

North Dakota exemplify how

guise of "reviewing:.nations for conformance with

state

state

mia, the state rejected EPA'sbecause of cost.

In performing thisused itjj; technical expertise

sources to determine that

11-12.

themost accurate

was n

its

easonable under theown preferred cost

the statutory factors itselfand

North Dakota spent nine yearsdered unique localreal-world visibility

options. N.D. Pet. at

Similarlydeveloping its SIPfactors when it eyaluated th^eimpacts of proposed

and corjsiated tl

control

s Arizona v. EPA, No. 13Louisiana Dep't of EnvUCir., filed Sept. 4, 2012)Cir., filed May 21, 2013)13-1758 (8th Cir., filedEPA, No. 12-73757 (9thEPA. No. 12-3084 (8thCo. u. EPA, No. 12Martinez, et al. v. EPA,2011); Utah v. EPA,2013).

-70366 (9tQuality

MichiganCliffs Na\,

A.pr. 4,Cir., filed

, filed1 (9th

No. 11-95

13-9535

a Cir.

v. EPA

v. EPAural

Cir.

7341

Nd.

Res

20t3); PPLNov. 16

Sept. 4, 201Cir., closed

i:>67 (10th1(10th

filed Jan. 31, 2013);No. 12-60672 (5th

No. 13-2130 (8th, Inc. v. EPA, No.Montana, LLC v.

2012); Nebraska v.2); Nevada Power

Dec. 4, 2013);Cir., filed Oct. 21,

Cir., filed Mar. 21,

12

18-19. Rather thanwas reasonable, Evisibility analysis thatClean Air Act, andissuing a FIP.

decide wA

was

used its

hether

conductedm

own \tor

that analysisa different

aiidated by thek to justify

These actions

misunderstanding ofhaze process. AsClean Air Act requiresdecisions as long asanalysis. Alaska,permit EPA tostate plans withdecisions than EPA w

not

illustrate

ts limite

Court

s fundamentalin the regionalconfirmed, thedefer to state

on a reasonedIt does not

and reject

technical and policy

EPA

d role

has

to

based

at

r

th.s

EPA

hey areU.S.

conduct de nopo reviewsdifferent

ould havje mad^

540 490.

that mistake (as itmany other

PA's preferreddisapprove aClean Air Act

unjreasorjable. 42 U.S.C.to apply this

its own

short of the

Nor may EPAhas in Oklahoma,states) by issuing FIchoices. EPA is ohcomplete SIP thatrequirements and is§ 7410(c). Each tinkestandard, and ir.steadpreferences through a FIPstatutory criteria.

compoundISlorth Da

3s that

ly efails to coniform tjo

thus

EPA

ikota

iflect

entitled to

and

EPA has gone

impose its willrulemakings. ForFIPs supplantingregional haze recindustry beforeeither SIP. See 78

1:1

ex;

EPA

re

fails

mandatesPA falls

subse

ample,Minnesota's

uirements fo^

quent

in

identified

Fed. Reg. 8,

even further i|n attempting toregional haze

20(13, EPA issuedJind Michigan's

the taconite

single flaw in47$ (Feb. 6, 2013).

EPA disreg

and then abruptlyonly genericallyMinnesota failed to

limits for its su

facilities." 77 Fed2012). EPA i<analyses and offeredthe states' concludiobligation to defedeterminations aijdEPA's FIP authority"gaps" in SIP submis42 U.S.C. §7602(y)envisioned andcooperative federalisAct.

13

Minnesota and Michigan eachreflected years of effort withindustry, and environmensubmissions containsupporting analysistechnical judgment.4

d thoujsreflectedend

ardid both

proposedsjubmisFIPs i

seating thatadequately

bjlect taconite

submitted SIPs thatland managers,

;al groups. Thosesands of pages of

bc»th states' best

sions for years,August 2012,

Michigan andestablish BART

fore processing,310 (Aug. 15,in the states'

for rejectingflaunt EPA's

regional hazelimits on

to fill identified.S.C. § 7410(c);what Congress

principles ofin the Clean Air

m

Reg.identified

49,308, 49no laws

no exp

.5 Such!ions

to

exceed

which

sions.

anation

actions

tate

the statutoryesxists

Sle 42 l|not

the

This

contradicts

tn established

is

4 These state submissionshttp://www.regulationsand EPA-R05-OAR-2010

can

-R05-

be viewed at2010-0037-0002

s Only after EPApropose, for the firstwere inadequate. See(finalizing the FlPs);(proposing disapproval

time

78

of

ov, EPA,-0954-0002

the

the reasons i\Fed

1 Fed,

the SIPs)

OAR

Reg. 8,7

finali^ed the Flfs for Itath states did EPAbelieved the SIPs

$eg. 8,478 (Feb. 6, 2013)06 (Feb. 6, 2013)

II. EPA's Pattern

Act Review

of National Sig

The ScopeWill ImpactDeterminations

EPA's efforts

primary regional hazerepercussions that extend farcurrently on petitio^i beforeeight similar app'eaCircuit courts. The regionalestablish a one-tbjnerequires states to2018 and every ten years40 C.F.R. § 51.308(f); 40 C.Fmeans that EPA wrevisions over theregional haze program alonestepping state authorityregional haze submission^guidance is needed

14

EPA's intrusion into

regional haze SIPs aid itsits own preferences before itin some of those state: plans demonstratewill continue to push itswhat the Clean Air J^ct allowstates and industry a

Court.

more

insistence

even

of Exceedingrity Is

ijiificance

Hundreds ofNationwide

than a dozen

on imposingidentified flaws

that EPA

review authority beyonddetriment of

ike absent guidance from this

Its Clean Air

Authority lis a Rejcurring Issue

6f EPA'i Review AuthorityClean Air Act

override Congress' grant ofto states has

beyond the two casesthis Pourt, and the

itigated in theze program does not•ement. Rather, it

Ps "by July 31,•" through 2064.

§ 51.300(b)(3). Thishundreds of SIP;ades under the

authority

s now being Lha

requirrlevise their SI

thereafter

ill

next

R

review

five decEPA's pattern of side-

the first round ofdemonstrates why

a decision that

m

now. Absent

15

ulemakin g eprotects state-led rcontinue to impose its| own prejferenc^

ffortrts, EPA wills for decades.

While the reg:are sufficient to meri|tin Oklahoma andmore broadly. Atfundamental questiohowes to state decisions. Tljat dybmany other CleanCongress gave staexample, while Congset and revise n£

standards ("NAAQSstates are empowered

"provide[] for implepientatiojnenforcement" of the

U.S.C. § 7410(a).

:onal ha^e implicationsthe i

alone

s presentedesonate much

tases raise thedeference EPA

amic impactsograms whereauthority. For

A authority toair quality

§ 7409(a), (d),ing plans that

and

the state. 42

review

North Dakota jrcore,

of how

issues

their both

much

Air Act pr;es primary

ranted E P

ambient.S.C

ress g

tional

'), 42 Ud with develop

maintenance,

standards within

As part of tho$e effortsareas are meetingare meeting thecompliance, and hmeeting the standards§ 7410(a). As withCongress gaveallowing them to clkoose th^must install contrstandards. 42 U.S.C,. § 7410^(Elec. Co., 427 U.Sdiscretion in formul^tincan review those state

comply with the Cleansimply impose its

, state

tftie standards,standards

identify whichhow areas that

will maintain

that are not

iknce. 42 U.S.C.haze program,

latitude byof sources that

the national

see also Unionis given wide

"). While EPAinsure that they

Agency cannots. 42 U.S.C.

low to b

into

the re

states sig:

ring areasg £

compliional

nificaiitmix

attain.

a)(2);250 ("each Stijite

g itschoic

Air

own

plan .es to

Act, th<bpreferer.ee

§ 7410(k)(3); see alsbL.L.C. v. EPA, 675("The Act confinesof reviewing SIPs fcrequirements.").

16

F .3d 917

to th4r consis

EPA

ency

Lumin\ant Generation Co.,921 (5th Cir. 2012)ministerial function

with the Act's

If left to stanld, theDakota decisions wilrules that follow every

already demonstrated itsthese rules with itsrecently reprimanded by the

Oklahoma and Norththreaten the dozens of state

NAAQS revision. EPA hasinclination to override

own policy choices and wasFifth Circuit for

its purporteddisapproving a SIPnonconformity with three extithat the EPA created out ofGeneration Co., L.L.C, 675over NAAQS disapprovalswill only become more prNorth Dakota are left in picontinue exceeding the limits

'based ona-statutory standards

w^hole cloth." Luminant3d at 932. Litigationnot uncommon6 and

evalent if Oklahoma andto encourage EPA to

of its authority.

is

ace

EPA's aggdecisions also haspermitting context,facilities in a way that increasescertain thresholds n|ustthe new source

§7475(a). For sourcesNAAQS, the permits

restive second-guessingsome im

that

se

oubles<

of state

plications in themodify their

emissions beyondpermits under

42 U.S.C.

eias that meet allinstallation of

ti

6 See, e.g., ArcelorMittal Burns1412 (7th Cir., filed Feb. 2560128 (5th Cir., filed Feb. 23, 2012)(6th Cir., filed Sept. 9, 2pll)

Sources

first

Review

locatec.

must

obtain

prog:ram.

m ar

require

Harbor

; 1Ohio

2014)

LLC v. EPA, No. 14-'exti-s v. EPA, No. 12-

i;. EPA, No. 11-3988

the best available

§ 7475(a)(4). Thecase technology reviewto the BART analysi(Apr. 6, 2012).

EPA has granimplement thisauthority to block aClean Air Act re

§ 7413(a); 42 U.S.C. {program, EPA owesinterfere with a statthe state's decision isa reasoned analysis:see also U.S. vSupp. 2d 1109 (D.N

17

ol

BA0T analyses reqifurthat

77 Fed!

control tejchnolcjgy. 42 U.S.C.es a case-by-

EPA adjmits is similar20,894, 20,897Reg.

ed manypermitting prograhi

permitrogr

tf it

states authority tobut retains

not satisfy42 U.S.C.

Ajs in th|e regional hazestates and can

determination only if"not based on

540 V.S. at 490-91;,, Inc., 831 F.

does

quirements. See7477.

deferenceBACT

arbitrary" andAlaska

Minrikota Poiher. 2011).

CoopI)

EPA's attemp

regional hazeindustry given EPABART and BACT rhundreds if not

each year that iapplications oftensometimes billion)

upgrades andsignificant timeauthorities to

requirements. EPAstate BART deterefforts to erode thepermitting deter

s to

context are

views

eyiew pr

side step

deeplyon the

ocesses

Alaska in the

troubling tosimilarity of the

States processapplications

•minations. The

million (andstriients in plant

rjcilities invest;ate permitting

all permittingsecond-guess

hadow similar

its authority to reviewwould endanger

thousands of permitnclujde BAC

involve

dollar

e^pansion^g

ensure theys a

ibination^

limits on

deteifmul

ijnve

Fa

working vjrith ssatisfy

ttenJLpts tjofore

minations, which

18

substantial projects findbusiness planning.

disrupt ye^ars of careful

The 1m

regional haze reviewReview by this Coixrtprompt guidance in ordeAir Act is implemente d

plications of EFPA's

authority are

position on itswide-ranging.7

to providethat the Clean

Cohgress intended.

is necessary

r to elnsure

as

Itieir Intended

to Successfulan Air Act.

B. Allowing States to Play TPrimary Role Is CriticalImplementation of the Cle

1. CongressAre UiLocal Po]

Understood That States

Situated to Make

State regulatorsto-day work ofemissions inventorieaddressing identijurisdictions. As a runparalleled undersftandinoperate within their

7 In addition to theauthority extends tobeen adopted into SIPsAct programs. For examdozens of states to

malfunction defenses foihow states implementSee 78 Fed. Reg. 12,46CEPA to proceed underevaluating such SIP

uelyicy Decisions

are res

airi and

ied

4sult, state

g

borders.

issuing

ponsi|ole for the day-reviewing

coftiphai}ce reports, andin their

ulators have an

sources that

is particularly

perniitspli

c<t>ncern$

reg

of

. This

the

ijibove, EPA reviewions that have

of Clean Air

rule requiringshutdown, and

violations will impactcontrol programs.

[t is imperative forof review when

pies providedthousands of ^tate re^ulat:exam

to implement a varietyipatedpie, EPA's antic:

re)vise their starClean Air Act

i;heir air pollution(Feb. 22, 2013)

tup

he correct standardrevisions.

19

important for industrcomplex operations,taconite processing,operations often takea critical prerequisiteregulations. For thismake concerted e

comprehend theirallowed to workeducational processachieve environmentalbusiness consequence s

ies withiron

dyyears to

to

reason,

ffojrts tofacilities. I

and highly^nd steel making, and

such complextand, which is

developing effectiveulated industries

state regulatorsthe Clean Air Act is

intended, thatgulations that

ithciut unintended

unique

like

The namics of

under

reg

help

4s Congressresults in re;

goals w

In addition to

the regulateduniquely situatedinherent in air quaapproaches typicallyand other air qualitystates are best

competing options toeconomic and otherchoices are made bimportant to thesimple reason: wethose policy decisionsthese dynamics whequestion the wisdomlimitations if theythe [Act's] standards!

having superiorcommunity,

tD make

state

the

knowledge ofregulators are

icy decisionsMany different

achieye regional hazeess recognized,choose among

environmental,g such policy

ulatjors is criticallycommunity for one

the outcome ofainly respected'no authority to

choices of emissionwhich satisfies

.S. at 79.

poliity planning,exist to

goals. Ak Con^rpositioned to

advance; state

priorities

state

gulatedrhust live

le

Ensufin

reg

with

Congress pEPAel it gave

of a State's

part off a piTrain

are an

421 U

In contrast

written to supplantinaccurate assumptions

he federalstate djecisioijs

or

rules increasinglyoften contain

one-size-fits-all"

requirements thatrealities. EPA's recent

prime example. Inan entire analysisfor the units they wOkla. Pet. at 13. SimilarlyMichigan FIPs, EPApreferred technologytaconite furnace regdifferences and that

would achieve the

exact same cost withoutconsequences or bMinnesota and Michiyears of experience w

20

gnore

regiohalOklahoma

controls

ere supposed

critical on-the-groundFIPs are a

EPA based

were too small

to address. See

Minnesota and

d that its

be installed at everyof fundamental design

every furnacereductions at the

environmental

The states of

bbtter based on

haze

FIP,the

on that

ised

in its

erroneously assumecould

^rdlessinstalledonce

ebxact sahie

unintended

u^iness impacts,igan knew

ith the industry

EPA's inferibrindividual facilities

balance the competingknow best illustrate

secondary role inconcerns equally shewaction to preserve that

understanding of the

its inability tons that states

limited EPA to a

planning. TheseCourt should take

involved

policywhy Conair qua^:

whydivisi

and

conc0r

stress

itythis

icn of authority.

2. EPA's

RegWorld Consequences

Interference with State

ulatciry Efforts His Grave Real-

As Oklahoma

regional haze and ohave enormous ope

on those who must

of such "bet the

overstated, EPA's

and No\-th Dakota exemplify,her air

national

comply.company

refusal to

quality planning rulesand financial impacts

While the direct impactdecisions cannot be

clefer to state air policy

determinations

programmaticthe culmination of

regulators, industijygroups and othersteps in at (andhour to impose itsefforts. Such federa

foundation of state

strong disincentivesfirst place. Ratherin developing statesimply because itinterested partiesstate process entiretyThat loss of co

state rulemaking aunever envisioned.

21

also Raises widespreadconcerns. State air quality plans are

years of effort by stateciti2;ens, environmental

interested parties. When EPAsometimes well after) the eleventh

own wll, it obviates thoseI second-guessing shakes the

rulemaking efforts by creatingto undertake that work in the

than investing limited resourcesEPA may overturn

sometfhing different,d to bypass theFIP from EPA.

the viability ofthat Congress

jlans

prefersbe encpur

and wait

nfidence thre

;hority irfi a way

that

will :-age

it for a

atens

a

Allowing EPAAct's cooperative feeunworkable unce

unintended environ

investing years ofconceived state rule

those decisions will

statutory problem,that certainty isregulatory environrrdecisions receive

business planningengineering andyears in advance at

to sid?

eralism

-step the Clean Air

•e also creates

delay andquences. Afterveloping well-

need confidence

unambiguous's perspective,

A stable

reasoned state

ntial to the

ijicial planning,must occur

res. When EPA

structur

rtainty, unnecessarymental conse

effort in

all involved

stand absent a|nFrom industry

particularly criticalent where well

deferencecycle,

otjher prcomple^

is

Fina

reparations

facili

de

essei

abruptly supplants sit prefers a different;find themselves gimulti-million dollai

wreak havoc. Suchin U.S. plants andlimited resources

pursuit of broadhaze SIPs and the

are exacerbating this;23-32.

22

state p

a

applingcompl

stabilityehcouragejs

lsewher

authority to

ins

an or permit becausepproaijm, facilities suddenly

with unanticipated,lance concerns that

inhibits investment

5 companies to invest0. EPA's aggressiverewrite state regional

infconsisterit coun; rulings to dateuncertainty. See Okla. Pet. at

EPA's policydesigned to achieve;facilities begin downimpossible to recoupand imposes newfacilities are

investments in cpntlrcases the courts, ha^years for EPA to evejna Clean Air Act

period of plan§7410(k)(2). LegalEPA's actions can

unnecessary delaysadvance the Clean

When EPA initiates

statutory languagecontrols are put oilexpand.

takeovers; alsoenvironmental

delay measuresgoals. Once

lance path, it is oftenwhen EPA steps in

As a result,

planning andand in many

. It often takes

statje plans, despitein a specified

42 U.S.C.

he propriety ofs more. These

es that would

envirbnmental goals.ggle that the

ids, emissionsubinesses cannot

a comp

sunk costs

requirements.to delay

ols untal EPA

e had their

considar

to do so

Submission,

battles over t

then take yeaf:inhibit chan

\ir Act's

a power

clearly fortyhold and b

forced

mandate

say

withi

See

stru

The instant

issue a clear directivepetitions allow

establishir.

this Court to

g the limits of

23

cjlisapproves cocperatijve

arises againfrom NAAQS

ional haze. Withoutn of unworkable

statte plans underfederalism

again across

EPA's authority tothe Clean Air

mandate. This issue

several air programs,to permitting to reg:this Court, the pattejrand needless delay willexpense of the environment

Act

and

and

implementationaction by

uncertainty

contiriue indefinitely at theeconomy.

CONCLUS

the

ON

For these reasbns, amiCi res

that the petitions for writ of certio^and the judgments below reversed.

MARCH 2014

p^ctfully requestari be granted

Respectfully submitted,

ALLEN A.

Counsel

KATYM.

Squire4900 Key127 Public

Cleveland.

(216) 479allen.kacp

squire

KACENJAR

ofRecor?RANZ

s]ander$Tower

SquateOH 44114-1304

8500

njar@sinders.dom

•d

(US) LLP

pierre h. bergeronSquire Sanders (US) LLP

NW, Suite 30020036

1200 19thWashing

Street,ton, D.

(202) 626-6600pierre.bergeron(<fe

squiresanders.com

C