Casey Voigt v. U.S. E.P.A., No. 21-1970 (8th Cir. 2022)
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Petitioners, the owners of a large ranch in rural North Dakota, filed this petition for review related to their challenge of the Environmental Protection Agency’s (EPA) renewal of a Clean Air Act (CAA) Title V operating permit for Coyote Station, a coal-fired electric generating plant that is serviced by the nearby Coyote Creek Mine. Petitioners petitioned the EPA Administrator to object to the renewal of the permit, and the Administrator denied the petition on the basis that Petitioners failed to carry their burden of demonstrating that the permitting decision was contrary to the CAA.
The Eighth Circuit denied the petition for review. The court explained that in response to Petitioners’ petition, the EPA has interpreted the term “demonstrates” in Section 7661d(b)(2) to include an obligation to discuss the specific points in the NDDOH permit or reasoning to which Petitioners objected. The Administrator determined that because Petitioners failed “to engage with the facts that [the NDDOH] deemed to be most relevant, the [Petitioners] . . . failed to demonstrate that [the NDDOH’s] justification was unreasonable, or that its ultimate decision was contrary to the CAA.” The court concluded that this interpretation is entitled to deference under either Chevron or Skidmore because it is both reasonable and persuasive, a conclusion other courts have similarly reached. The court thus concluded that the Administrator’s interpretation of “demonstrates” in Section 7661d(b)(2) is entitled to deference. Finally, Petitioners’ arguments about the lack of a notice and comment period did not change the court’s conclusion
Court Description: [Shepherd, Author, with Loken and Colloton, Circuit Judges] Petition for Review - Clean Air Act. Local property owners challenge the EPA's decision to renew the Clean Air Act Title V operating permit for Coyote Station, a lignite coal-fired electric generating plant serviced by the nearby Coyote Creek Mine near Zap, North Dakota. The property owners argued to the agency that the power plant's submission was not complete because the mine and its emissions were not included in the permit and that the mine and the power plant should be considered a single source for purposes of a Title V permit; the agency administrator rejected the challenge because plaintiffs had failed to meet their burden of demonstrating that the mine and plant were a single source and thus failed to demonstrate that the proposed permit did not comply with the Clean Air Act; the agency's interpretation of the word "demonstrate" as it is used in 42 U.S.C. Sec. 7661d(b)(2) is entitled to deference; the agency administrator did not act arbitrarily or capriciously in denying the property owners' petition. Judge Colloton, dissenting.
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