By Amanda Pampuro
May 17, 2023 - Between complaints filed by a coal plant operator and environmental groups, the Environmental Protection Agency asked the 10th Circuit on Tuesday to uphold its 2014 final decision regarding Wyoming’s plan to retrofit coal plants and reduce haze.
As mandated by the Clear Air Act, the EPA implemented the 1999 Regional Haze Rule and the 2001 BART guidelines directing states to clean up the air, particularly around national parks. Wyoming is home to seven national parks, including Grand Teton and Yellowstone.
The BART, or Best Available Retrofit Technology, program allows polluting coal plants to remain online with modifications.
In 2011, Wyoming submitted plans to retrofit five coal plants to control sulfur dioxide and nitric oxide, two compounds largely responsible for smog. The EPA approved Wyoming’s plan for four units but rejected the plan for the Wyodak plant in the northeast corner of the state, an hour away from Devils Tower National Monument.
Wyoming petitioned the 10th Circuit for review in 2014. Power company PacifiCorp, which runs the utilities in question, joined. The Sierra Club, and other environmental groups, petitioned the court to reject Wyoming’s plan for two other PacifiCorp units, Naughton I and II.
Although litigation began under Obama-era EPA administrator Gina McCarthy, Wyoming asked the court to stay proceedings under Trump-era administrator Scott Pruitt, hoping to work out a deal. A settlement did not manifest and the case passed on to Biden'-nominated's administrator Michael Regan.
Wyoming Assistant attorney General Shannon Leininger argued that Wyoming fulfilled all of its requirements and that implementing the EPA’s recommended retrofits yielded few benefits.
“Reasonable minds can differ,” Leininger said. “Both of us agree it costs at least $100 million more in capital costs to get that 0.4 unit difference and it would add paraelectric costs and further environmental costs.”
U.S. Circuit Judge Timothy Tymkovich, appointed by George W. Bush, asked the federal government if the benefits were so minimal why it insisted Wyoming implement them.
“Wyoming’s response that NOX doesn’t really matter than much is not a sufficient response to Congress, and it’s also not a response that’s sufficient under the Regional Haze Rules,” countered Department of Justice attorney Amanda Lineberry.
U.S. Circuit Judge Robert Bacharach, an Obama appointee, hesitated to adopt the government’s full argument, particularly that it should have expected Wyoming to accept all “guidelines” as mandatory.
“We do have case law in administrative procedure where if an agency gives two reasons, one valid and one invalid, unless it is crystal clear from the record the agency would have made the same decision without the invalid reason, we have to remand,” Bacharach said. “I don’t know if we can just disregard some of this problematic language where the agency reads the guidelines as mandatory, when there is also some rational that does pass muster.”
The Sierra Club and other environmental groups asked the court to additionally reject the EPA’s approval of two other coal units: Naughton I and II.
“PacifiCorp’s Naughton coal plant in southwest Wyoming causes noticeable visibility impairments in all of the states Class 1 areas including Yellowstone and Grand Teton parks,” argued EarthJustice attorney Jenny Harbine.
Tymkovich asked whether the matter is moot since PacifiCorp had pledged to retire the Naughton units by the end of 2025.
“Without regard for what the EPA does are you committing on behalf of PacifiCorp that Naughton I and II will stop burning coal by Dec. 31, 2025?” Tymkovich asked PacifiCorp attorney Steven Jones.
Jones reiterated PacifiCorp's plan.
“I am aware we are livestreaming and on the record,” Jones said. “The rules that they adopted requires us to stop burning coal even if we wanted to change our mind.”
Haze is caused by sulfates, nitrates and particulate matter like sea salt, soot and soil. The number of annual hazy days around Wyoming’s national parks have fluctuated over the last decade, per the National Park Service’s IMPROVE program, which collects air quality data.
A paper published in Atmospheric Environment found Clean Air Act regulation along with reductions in coal power have successfully cut average haze in half across the country, with the greatest decreases measured in the East.
U.S. Circuit Judge Joel M. Carson, appointed by Donald Trump, rounded out the panel. The court did not indicate when or how it would decide the case.