A federal appeals court has ruled against the U.S. Environmental Protection Agency and for Wyoming in a dispute over regional haze limits from large coal-fired power plants. The 10th Circuit Court of Appeals in Denver last month (Aug. 15) found that EPA’s partial rejection of a state implementation plan (SIP) for cutting NOx emissions from three PacifiCorp coal plants to reduce regional haze in national parks under the Clean Air Act was in error.
PacifiCorp., based in Portland, Ore., and owned by Warren Buffett’s Berkshire Hathaway, is the largest grid operator in the western U.S., serving some 2 million customers in Oregon, Washington, California, Utah, Idaho, and Wyoming.
The three-judge panel concluded that the 2011 state plan for the Wyodak plant near Gilette and Naughton 1 and 2 plants near Kemmerer had legal problems. EPA in 2014 accepted the state plan for the two Naughton units but rejected the Wyodak plan. EPA then issued a federal implementation plan (FIP) of its own for Wyodak, requiring technology that the power plant operator and the state concluded was costly and ineffective. The state filed suit seeking review, including Basin Electric Power Cooperative, Pacificorp, and Arch Coal.
On the other side, environmental groups including the National Parks Conservation Association, Sierra Club, and Wyoming Outdoor Council, joined the legal action, claiming that EPA’s approval of the Naughton units was in error for failing to apply “best available reduction technology” (BART).
The court ruled, “We grant the petition as to Wyodak and vacate that portion of the final rule. The EPA erred in evaluating the Wyodak portion of the SIP because it treated non binding agency guidelines as mandatory in violation of the Clean Air Act. We remand that part of the final rule to the agency for further review. But because the EPA properly approved Wyoming’s determination of the best technology for Naughton, we deny the petition as to those units and uphold that portion of the final rule.”
The size of the generating units played a key role in the decision. Wyodak’s generating capacity is 402 MW. The two Naughton units are 192 MW (unit 1) and 256 MW (unit 2). Writing for the court, Judge Timothy Tymkovich said, “Congress decided that the EPA’s BART guidelines are mandatory for larger powerplants generating over 750 megawatts…. But the guidelines are not mandatory for smaller power plants (like those here) whose total generating capacity does not exceed 750 megawatts.”
Travis Deti, executive director of the Wyoming Mining Association, told Wyoming Public Radio, “We’ve been running these plants in Wyoming for decades, and the air quality in Jackson, the air quality around Devil’s Tower, the air quality in Grand Teton, it’s fine.” NOx and particulate emissions play a lesser role than sulfur dioxide in visibility degradation.
Earth Justice lawyer Jenny Harbine, who helped argue the case against Wyoming’s haze plan, said the state isn’t doing enough to reduce emissions from the plants. “Cleaning up this pollution not only clears the skies and exposes the views that we all love in this region, but also makes the area healthier for Wyoming communities,” she said.
Wyoming Republican Gov. Mark Gordon issued a press release, saying, “It is gratifying that the court recognized this example of federal overreach into what is the rightful domain of the State of Wyoming. Just because the federal government may think it knows best, that doesn’t mean it can trample on the state’s rights. I hope the federal government takes a serious look at what this decision means in terms of state primacy.”
The calendar, rather than the EPA, may decide the fate of the environmental controls on the PacifiCorp power plants and the regional haze. According to PacifiCorp’s current Integrated Resource Plan, issued in April, the utility plans to convert Naughton 1 and 2 to gas by 2026 and retire Wyodak by 2039. The Wyodak plan may change long before that.
Judge Tymkovich was a George W. Bush appointee to the 10th Circuit in 2003 and served as chief judge 2015-2022. From 1991-1996, he was Colorado solicitor general. Joining Tymkovich in the decision were Judge Robert Bacharach, a 2013 Obama appointee, and Judge Joel Carson, a Trump appointee.
–Kennedy Maize
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