Utah Ex Rel. Utah Department of Environmental Quality, Division of Air Quality v. United States Environmental Protection Agency , 750 F.3d 1182 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
May 6, 2014
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
STATE OF UTAH, on behalf of the Utah
Department of Environmental Quality,
Division of Air Quality,
Petitioner,
v. No. 13-9535
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, and GINA
McCARTHY, Administrator, United
States Environmental Protection Agency,
Respondents.
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UTAH ASSOCIATED MUNICIPAL
POWER SYSTEMS,
Intervenor.
PACIFICORP,
Petitioner,
v. No. 13-9536
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, and GINA
McCARTHY, Administrator, United
States Environmental Protection Agency,
Respondents.
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UTAH ASSOCIATED MUNICIPAL
POWER SYSTEM; STATE OF UTAH
DEPARTMENT OF ENVIRONMENTAL
QUALITY AND DIVISION OF AIR
QUALITY,
Intervenors.
PETITION FOR REVIEW OF FINAL DECISION ISSUED BY
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
EPA-R09-OAR-2011-0589 and EPA-R08-OAR-2011-0114
E. Blaine Rawson, Ray Quinney & Nebeker, P.C., (Michael G. Jenkins, Assistant
General Counsel, PacifiCorp Energy, on the briefs), Salt Lake City, Utah, for
Petitioner PacifiCorp.
Christian C. Stephens, Assistant Attorney General, (Craig W. Anderson, Division
Chief and Assistant Attorney General, on the briefs), Utah Attorney General’s
Office, Salt Lake City, Utah, for Petitioner-Intervenor State of Utah.
Stephanie J. Talbert, United States Department of Justice, Environment & Natural
Resources Division, Washington, D.C. (Robert G. Dreher, Acting Assistant
Attorney General, United States Department of Justice, Environment & Natural
Resources Division, Washington, D.C.; Chloe H. Kolman, United States
Department of Justice, Environment & Natural Resources Division, Washington,
D.C.; Matthew C. Marks, Of Counsel, Office of General Counsel, United States
Environmental Protection Agency, Washington, D.C.; Sara L. Laumann, Of
Counsel, Office of Regional Counsel, United States Environmental Protection
Agency, Region 8, Denver, Colorado, on the brief), for Respondent.
H. Michael Keller, Van Cott, Bagley, Cornwall & McCarthy, P.C., (Mary Jane E.
Galvin-Wagg, Van Cott, Bagley, Cornwall & McCarthy, P.C.; Mason Baker,
General Counsel Utah Associated Municipal Power Systems, on the briefs), Salt
Lake City, Utah, for Intervenor Utah Associated Municipal Power Systems.
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Before BACHARACH, SEYMOUR, and MURPHY, Circuit Judges.
BACHARACH, Circuit Judge.
This action grows out of the Clean Air Act, which requires states to adopt
programs that will reduce emission of air pollutants that affect visibility. In light
of this requirement, the State of Utah submitted a revised plan to the
Environmental Protection Agency. The agency partially rejected the plan, and the
State of Utah and one of the affected companies (PacifiCorp) filed petitions for
review. Though all parties agree that we have jurisdiction, we disagree and
dismiss the petitions.
I. Timeliness as a Jurisdictional Requirement
Under the Clean Air Act, an aggrieved party must ordinarily file a petition
for review within 60 days of the date on which the EPA’s action appears in the
Federal Register. 42 U.S.C. § 7607(b)(1) (2012). This deadline is jurisdictional.
See Okla. Dep’t of Envtl. Quality v. EPA, 740 F.3d 185, 191 (D.C. Cir. 2014)
(stating that the 60-day deadline in 42 U.S.C. § 7607(b)(1) is jurisdictional).
The agency’s rejection of the Utah plan appeared in the Federal Register on
December 14, 2012, and Utah and PacifiCorp waited until March 21 and 22, 2013,
to file petitions for review. 77 Fed. Reg. 74355 (Dec. 14, 2012) (EPA action).
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Because more than 60 days had passed from the date of publication in the Federal
Register, the petitions would ordinarily be considered untimely.
II. The Parties’ Arguments
The EPA, Utah, and PacifiCorp present four arguments in support of
jurisdiction:
! The 60-day deadline does not apply to grounds arising after the 60th
day;
! the EPA changed the promulgation date when it identified the
deadline as March 25, 2013;
! filing after the 60th day is allowed under the “reopener doctrine”; and
! denial of jurisdiction would be inequitable.
We reject each argument as a basis for jurisdiction.
A. Grounds Arising After the 60th Day
There is an exception to the 60-day deadline when the petition “is based
solely on grounds arising” after the 60th day. 42 U.S.C. § 7607(b)(1) (2012).
PacifiCorp invokes this exception, but it does not apply here because the
“grounds” for the petitions lie in the EPA action published on December 14, 2012.
The term “grounds,” as used in § 7607(b)(1), is not defined in our
precedents. But the Supreme Court has elsewhere defined the term “grounds” as
“a sufficient legal basis for granting the relief sought.” Sanders v. United States,
373 U.S. 1, 16 (1963) (defining the term “ground” for successive motions for
relief under the habeas statutes or 28 U.S.C. § 2255).
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The legal basis for the claim existed on December 14, 2012, when the
EPA’s rejection of the Utah plan appeared in the Federal Register. Thus, Utah and
PacificCorp cannot avoid the jurisdictional bar based on the existence of grounds
arising after the 60th day.
B. Change in the Notice of Promulgation Date
Utah, PacifiCorp, and the EPA also argue that: (1) the EPA changed the
notice date of its decision to January 22, 2013, and (2) based on that date, the
petitions would be timely. These arguments are invalid.
When the EPA decides on a state plan, it typically alerts interested parties to
the 60-day deadline for filing a petition for review. But the EPA inadvertently
neglected to include this statement when rejecting the Utah plan. Trying to correct
the error, the EPA stated on January 22, 2013, that aggrieved parties would have
until March 25, 2013, to file a petition for review. 78 Fed. Reg. 4341 (Jan. 22,
2013).
Utah and PacifiCorp relied on the EPA’s statement, assuming they had until
March 25, 2013, to file a petition for review. Based on this assumption, Utah and
PacifiCorp filed petitions for review on March 21 and 22, 2013. The parties now
argue that when the EPA identified the new deadline (March 25, 2013), it
effectively changed the notice date of its decision. This argument is invalid as a
matter of law.
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To support this argument, the parties rely on 40 C.F.R. § 23.3. This section
states that the EPA’s action is considered the date of publication in the Federal
Register “[u]nless the Administrator otherwise explicitly provides in a particular
promulgation, approval, or action.” 40 C.F.R. § 23.3. Under § 23.3, we must
determine whether the EPA “explicitly” changed the promulgation date.
The word “explicit” means “unequivocal” or “fully and clearly expressed or
demonstrated,” with nothing left that is “merely implied.” Webster’s New
Universal Unabridged Dictionary 681 (1996). With this definition, we conclude
that the EPA did not explicitly change the promulgation date.
The EPA may have changed the date implicitly, for the EPA undoubtedly
intended to restart the 60-day period. But we are obligated to follow the EPA’s
own words in 40 C.F.R. § 23.3. There, the EPA said that it could change the
promulgation date “explicitly,” not “implicitly.” When the EPA restarted the 60-
day deadline, it never said it was changing the promulgation date of its earlier
determination. As a result, the EPA did not “explicitly” change the promulgation
date when it incorrectly identified the deadline as March 25, 2013.
In oral argument, the Petitioners’ counsel argued that we should defer to the
EPA’s interpretation of 40 C.F.R. § 23.3. Two problems exist: The EPA never
said it had changed the promulgation date, and it has not characterized its
identification of the deadline as an “explicit” change in the promulgation date; 1
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The EPA did say in its brief that it had “expressly intended” to change the “notice
date of promulgation.” EPA Jurisd. Mem. at 1-2 (Apr. 24, 2013). But, “intending” to do
something is not the same as actually doing it.
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thus, we do not have a contrary interpretation by the EPA to defer to even if
deference were otherwise appropriate.
C. The “Reopener Doctrine”
PacifiCorp also invokes the “reopener doctrine.” The D.C. Circuit Court of
Appeals has recognized the doctrine, but we have not decided whether to adopt the
doctrine in our circuit. See Council Tree Investors, Inc. v. FCC, 739 F.3d 544,
553 n.7 (10th Cir. 2014) (“we need not decide in this case whether or not to adopt
the reopener doctrine”); HRI, Inc. v. EPA, 198 F.3d 1224, 1238 n.8 (10th Cir.
2000) (“we decline to decide whether or not to adopt the ‘reopener doctrine’ in
this Circuit”). We need not decide here whether to adopt the doctrine. Even if we
were to do so, it would not apply.
“The reopener doctrine allows judicial review where an agency has—either
explicitly or implicitly—undertaken to ‘reexamine its former choice.’” Nat’l
Mining Ass’n v. U.S. Dep’t of the Interior, 70 F.3d 1345, 1351 (D.C. Cir. 1995)
(quoting Pub. Citizen v. Nuclear Regulatory Comm’n, 901 F.2d 147, 151 (D.C.
Cir. 1990)); see also P & V Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021,
1024 (D.C. Cir. 2008) (stating that the “[reopener] doctrine only applies . . . where
‘the entire context’ demonstrates that the agency ‘ha[s] undertaken a serious,
substantive reconsideration of the [existing] rule’” (second and third alteration in
original) (citation omitted) (quoting Pub. Citizen, 901 F.2d at 150; Nat’l Mining
Ass’n, 70 F.3d at 1352)).
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This doctrine, as defined in the D.C. Circuit Court of Appeals, would not
apply to the EPA’s so-called “correction.” There, the EPA stated that petitions
would be due March 25, 2013, but it did not suggest that it had reexamined, or
would reexamine, its rejection of the Utah plan. Thus, even if we were to adopt
the reopener doctrine, it would not apply here.
D. Inequity to Utah and PacifiCorp
The State of Utah and PacificCorp argue that it would be inequitable to
dismiss the petitions on the ground of timeliness. We agree that the jurisdictional
bar creates an inequity. The EPA stated that petitions were not due until March
25, 2013, and Utah and PacifiCorp naturally assumed that the EPA was correct.
But it was not, and we cannot expand our jurisdiction to avoid hardships even
when they are inequitable. Bowles v. Russell, 551 U.S. 205, 213-14 (2007).
III. Conclusion
The petitions for review are untimely; thus, we dismiss both petitions based
on a lack of jurisdiction.
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