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8th Cir. Affirms EPA Thumbs up to Minnesota's Anti-Pollution Plan

By Jonathan R. Tung, Esq. on March 16, 2016 | Last updated on March 21, 2019

The Eighth Circuit refused to review and set aside the EPA's decision to approve Minnesota's plan to reduce visible emissions from five of its power plants that adversely affect the natural beauty of some of its wilderness and the national parks in that region.

The petition to overturn the EPA's decision to allow Minnesota's application of the "Transport Rule" was denied.

Transport Rule v. BART

In 2012, the state of Minnesota implemented the Minnesota Regional Haze State Implementation Plan, a statewide act intended to approve the state's pollution, particularly in sensitive areas. It is a goal under EPA rules that certain stationary facilities that emit "any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in [protected areas]" be required to install and operate something called BART -- Best Available Retrofit Technology.

Years after BART was first placed into law, the EPA started to offer states an alternative to BART if they met certain pollution reduction and visibility improvement goals. Of course, the state would have to prove, through supported studies, that such a move would benefit the protected areas. One of these alternatives to BART was deemed "better than BART" in 2012. It was known as the Cross-State Air Pollution Rule (also CSAPR) or better known as the Transport Rule. With proper implementation, CSAPR would actually meet or exceed the intended goals of Congress set out by the EPA rules.

Explanation Is Rational

One of the issues before the court was that of venue and jurisdiction, but that issue is not addressed here. The more important legal issue to address is the petitioners contention that the Transport Rule is not "better than BART" and as such, it was in error for the EPA to allow Minnesota to switch the alternate Transport Rule. Petitioners pointed to previous studies that BART studies in other regions whose controversies were reviewed by the other circuits did indeed indicate BART achieved "better" results. In fact, BART tested favorably against the Transport Rule in Minnesota.

The EPA provided many attachments and studies that compared the projected visibility improvements to the region under Transport Rule as opposed to BART. And though there was disagreement between the petitioners and the EPA, the Eighth Circuit felt compelled to side with the EPA for procedural reasons.

"Maybe time will prove [petitioner] right on some of these fronts; maybe not." But the court was asked to undercut the EPA's decision and it was bound by the arbitrary and capricious review rule. The rule mandates that the court must determine first whether or not the agency's decision was "defensible" in its process, not who is actually right or wrong. And since it appeared that the EPA had made its decision based in an area of which it typically demonstrates expertise, it was fair for the EPA to make the decision that it did. The Eighth Circuit had no choice but to let the EPA decision stand undisturbed.

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