National Parks Conservation Ass'n v. U.S. Environmental Protection Agency

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL PARKS CONSERVATION No. 12-73710

ASSOCIATION; MONTANA

ENVIRONMENTAL INFORMATION

CENTER; SIERRA CLUB,

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION

AGENCY and LISA P. JACKSON, Administrator, United States Environmental Protection Agency, Respondents,

PPL MONTANA, LLC,

Respondent-Intervenor. NAT’L PARKS CONSERVATION ASS’N V. EPA

PPL MONTANA LLC, No. 12-73757 Petitioner, EPA No.

NATIONAL PARKS CONSERVATION EPA-R08-OAR-

ASSOCIATION, MONTANA 2011-0851

ENVIRONMENTAL INFORMATION

CENTER, AND SIERRA CLUB,

Intervenors, OPINION

v.

U.S. ENVIRONMENTAL PROTECTION

AGENCY and LISA P. JACKSON, Respondents.

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

Argued and Submitted May 16, 2014—Seattle, Washington

Filed June 9, 2015

Before: Diarmuid F. O’Scannlain, Marsha S. Berzon, and Richard C. Tallman, Circuit Judges.

Opinion by Judge O’Scannlain; Concurrence by Judge Berzon

NAT’L PARKS CONSERVATION ASS’N V. EPA

SUMMARY*

Environmental Law

The panel…

Opinion by Judge O’SCANNLAIN.

Concurrence by Judge BERZON.

OPINION

We must decide whether the Environmental Protection Agency’s regional haze regulations for the State of Montana lawfully prescribe emission limits at certain power plants.

I

Petitioner PPL Montana operates and partially owns coal-fired and hydroelectric power plants in Montana, including the Colstrip' Steam Electric Generating Station (“Colstrip”) and the J.E. Corette Steam Electric Station" (“Corette”). Petitioners National Parks Conservation Association, Montana Environmental Information Center, and Sierra Club (collectively, “NPCA”) are nonprofit conservation organizations whose members enjoy wilderness areas impacted by EPA’s regional haze regulations for the State of Montana. Both petitioners are dissatisfied with such regulations. PPL Montana argues, in essence, that they are too stringent; NPCA argues, to the contrary, that they do not do enough to remedy visibility impairment caused by regional haze in various relevant wilderness areas.

A

Regional haze is “visibility impairment caused by geographically dispersed sources emitting fine particles and their precursors into, the air.” Am. Corn Growers…

concurring.

I concur. I write separately to underline my understanding that, in Part II.C of the lead opinion, we are not impugning EPA’s use of the CALPUFF model generally. Instead, we are requiring a sufficiently reasoned response to a particular comment regarding CALPUFF’s usefulness in these specific circumstances. Had EPA given any reasonable explanation as to why CALPUFF was not just “sufficiently reliable to inform the decision making process” generally, 77 Fed.Reg. 57,864, 57,868 (Sept. 18, 2012), but also specifically suitable for predicting visibility improvement in the pertinent factual context at increments as small as 0.085 deciviews, then we could require no more.

The arbitrary-and-capricious standard of review authorizes remand where, inter alia, the agency has “entirely failed to consider an important aspect of the problem,” by “g[iving] no consideration whatever” to it. Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 46 , 103 S.Ct. 2856 , 77 L.Ed.2d 443 (1983) (emphasis added). The “standard of review ... [requires] only reasonableness, not perfection.” Kennecott Greens Creek Mining *1150 Co. v. Mine…