State of Michigan v. Environmental Protection Agenc ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2582
S TATE OF M ICHIGAN,
Petitioner,
v.
U NITED S TATES E NVIRONMENTAL
P ROTECTION A GENCY,
Respondent,
and
F OREST C OUNTY P OTAWATOMI
C OMMUNITY,
Intervenor-Respondent.
Petition for Review of the
Final Administrative Rulings of the
United States Environmental Protection Agency.
A RGUED M ARCH 30, 2009—D ECIDED S EPTEMBER 9, 2009
Before K ANNE, W OOD and W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. The cultural and religious tradi-
tions of the Forest County Potawatomi Community (“the
Community”) often require the use of pure natural re-
2 No. 08-2582
sources derived from a clean environment. Many years
ago, the Community became alarmed by increasing
pollution levels in its lakes, wetlands, and forests. To
remedy this problem, it submitted a request to the En-
vironmental Protection Agency (“EPA”) to redesignate
certain tribal lands from Class II to Class I status under
the Prevention of Significant Deterioration (“PSD”) pro-
gram of the Clean Air Act (“the Act”). This would have
the effect of imposing stricter air quality controls on
emitting sources in and around the Community’s
redesignated lands.
After nearly fifteen years of administrative proceedings
and dispute resolution efforts between the Community
and neighboring Wisconsin (which were successful) and
Michigan (which were not), the EPA promulgated a final
ruling redesignating the Community’s lands to Class I
status. It also issued two companion announcements
concluding dispute resolution proceedings with Wis-
consin and Michigan. Michigan seeks review of these
three final administrative rulings. It asserts that the EPA
pursued the redesignation in an improper manner
and, as a result, needlessly complicated Michigan’s air
quality control programs. Because Michigan lacks
standing to pursue these claims, we dismiss its petition
for review.
I
A
The Act, 42 U.S.C. §§ 7401-7617q, establishes a compre-
hensive program for air quality control and authorizes
No. 08-2582 3
the EPA to administer it. 42 U.S.C. § 7601(a)(1). Under
the Act, the EPA must identify air pollutants that
endanger public health and welfare and must formulate
National Ambient Air Quality Standards (“NAAQS”),
which specify air quality criteria, control techniques,
and the maximum possible concentration of various air
pollutants. 42 U.S.C. §§ 7408-09.
The purpose of the PSD program is to preserve the
NAAQS where they have been met. 42 U.S.C. § 7471. It
operates primarily through a permitting system. A
“major emitting facility,” defined at 42 U.S.C. § 7479(1),
must obtain a permit before initiating construction of
a new facility or modifying an existing facility. 42 U.S.C.
§ 7475(a)(1). In order to secure such a permit, the
emitting source must demonstrate through air quality
modeling that it will not cause or contribute to the
(A) maximum allowable increase or maximum allow-
able concentration for any pollutant in any area to
which this part applies more than one time per year,
(B) national ambient air quality standard in any air
quality control region, or (C) any other applicable
emission standard or standard of performance
under this Act.
42 U.S.C. § 7475(a)(3). Under the PSD program, an area
is designated as Class I, II, or III, with Class I lands
being those for which air quality is most protected. 42
U.S.C. § 7473. Thus, it is more difficult for emitting
sources in the vicinity of a Class I area to obtain a PSD
permit.
Much of the PSD program is implemented by the
States through State Implementation Plans (“SIP”), which
4 No. 08-2582
contain a set of State-promulgated and EPA-approved
regulations. 42 U.S.C. § 7410. If a State has not yet promul-
gated its own SIP, or if the EPA has not approved
a proposed SIP, the EPA will issue a Federal Implementa-
tion Plan (“FIP”), which will govern the implementation
of the PSD program until the State creates a valid SIP. 42
U.S.C. § 7410(c). Indian Tribes are generally treated the
same as States under the Act (with some exceptions
noted in 40 C.F.R. § 49.4). This means that they may
implement the PSD program on their lands through a
Tribal Implementation Plan (“TIP”), which is analogous
to a SIP. 42 U.S.C. § 7601(d). Just as with States, if a Tribe
does not create a valid implementation plan, the EPA
will promulgate a FIP to govern the tribal lands until
the Tribe creates a valid TIP, if and when it wishes to do
so. 40 C.F.R. § 49.11.
Both a State and a Tribe are authorized to redesignate
land within their boundaries to Class I status. 42 U.S.C.
§ 7474(a), (c). Redesignation requires that the State or
Tribe hold public hearings and analyze the “health,
environmental, economic, social, and energy effects of
the proposed redesignation.” 42 U.S.C. § 7474(b)(1)(A). If
these procedural requirements are met, the EPA has
little discretion in denying a redesignation. See Arizona v.
EPA, 151 F.3d 1205, 1208 (9th Cir. 1998) (“Once these
procedural requirements are met, EPA must approve
the request for redesignation.”). A State, however, may
object to a proposed tribal redesignation and invoke
dispute resolution under 42 U.S.C. § 7474(e). The EPA must
accept whatever agreement the State and Tribe come to,
but if they cannot come to an agreement, the EPA may
No. 08-2582 5
resolve the issue and integrate it into the relevant SIP,
TIP, or FIP. Id.
The EPA is charged with administering the permitting
process for the PSD program, but it may delegate that
authority. See 40 C.F.R. § 52.21(u). It has done so in
this case by entrusting PSD permitting authority to the
Michigan Department of Environmental Quality for
sources within the State of Michigan. See Approval and
Promulgation of Implementation Plans; Delegation of
Authority to the State of Michigan, 45 Fed. Reg. 8,348
(Feb. 7, 1980).
B
The Community is a federally-recognized Indian Tribe
in Wisconsin. See Indian Entities Recognized and Eligible
To Receive Services From the United States Bureau of
Indian Affairs, 73 Fed. Reg. 18,553, 18,554 (Apr. 4, 2008). It
inhabits an area rich in lakes, wetlands, and forests, and
it sees the preservation of these lands as crucial to its
cultural heritage. For example, the Community’s belief
system requires that plants and animals that are used
for medicines and religious ceremonies be obtained in a
pure form from a clean environment. With increasing
pollution, the Community saw its heritage threatened,
and so it decided to ask the EPA to redesignate certain
of its reservation lands from Class II to Class I status.
On December 7, 1993, the Community submitted to the
EPA an informal request for redesignation of its reserva-
tion lands within Forest County, Wisconsin. The Com-
6 No. 08-2582
munity gave notice to various entities of the public hear-
ings it held on the subject, and it also submitted a Techni-
cal Report to the EPA, outlining the various effects of the
redesignation. On February 14, 1995, the Community
submitted its formal request for redesignation to the
EPA. The EPA reviewed the Community’s materials
and determined that the procedural requirements for
redesignation had been met. Thus, on June 29, 1995, the
EPA issued a Notice of Proposed Rulemaking that sug-
gested approval of the redesignation request and sought
public comment. Because of the proposed redesignation’s
effect on emitting sources in surrounding lands, Michigan
and Wisconsin objected to the proposed change
and invoked the dispute resolution provisions of 42
U.S.C. § 7474(e). The Community-Wisconsin negotiations
ended successfully with the signing of a Memorandum of
Agreement (“MOA”). In contrast, the Community-Michi-
gan dealings broke down, and the Community requested
that the EPA resolve the dispute.
On December 18, 2006, the EPA again issued a Notice
requesting comments on a proposed rule that would
approve the Community’s proposed redesignation and
implement it through a FIP promulgated by the EPA.
After public hearings and an extended comment period,
the EPA promulgated its final action redesignating the
Community lands to Class I status on April 29, 2008. See
Approval and Promulgation of Air Quality Implementation
Plans; Wisconsin; Redesignation of the Forest County
Potawatomi Community Reservation to a PSD Class I Area,
73 Fed. Reg. 23,086 (Apr. 29, 2008). The EPA also issued
two companion announcements concluding the dispute
No. 08-2582 7
resolutions with Wisconsin and Michigan. The Wis-
consin dispute resolution action incorporated the MOA,
which exempted certain Wisconsin lands from Class I
restrictions. See Redesignation of the Forest County
Potawatomi Community Reservation to a PSD Class I
Area; Dispute Resolution With the State of Wisconsin, 73
Fed. Reg. 23,111, 23,114 (Apr. 29, 2008) (subjecting only
“major sources in Wisconsin located within a ten (10)
mile radius of any redesignated Tribal land to performing
an increment analysis and to meeting consumption re-
quirements applicable to a Class I area.”). The EPA’s
approval of Class I status for the tribal lands will affect
emitting sources within Michigan. See Redesignation of
the Forest County Potawatomi Community Reservation
to a PSD Class I Area; Dispute Resolution with the State
of Michigan, 73 Fed. Reg. 23,107 (Apr. 29, 2008). Michigan
seeks review of these three final administrative rulings.
II
As the party invoking federal jurisdiction, Michigan
bears the burden of demonstrating that it has standing,
which has three requirements:
First, the plaintiff must have suffered an “injury in
fact”—an invasion of a legally protected interest which
is (a) concrete and particularized, and (b) “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second,
there must be a causal connection between the
injury and the conduct complained of—the injury has
to be “fairly . . . trace[able] to the challenged action of
the defendant, and not . . . the result [of] the independ-
8 No. 08-2582
ent action of some third party not before the court.”
Third, it must be “likely,” as opposed to merely
“speculative,” that the injury will be “redressed by
a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(internal citations omitted); Citizens Against Ruining the
Env’t v. EPA, 535 F.3d 670, 675 (7th Cir. 2008). Michigan
challenges the EPA’s final actions on three grounds.
First, it believes that the EPA used an improper
procedural vehicle for redesignating the Community
lands. Second, it argues that the EPA acted punitively
by applying more stringent restrictions to Michigan
than to Wisconsin. Third, it contends that the EPA did not
provide sufficient regulatory guidance in its final ac-
tions. We review each of these arguments below.
Michigan’s primary complaint is that the EPA used the
wrong process to redesignate the Community’s lands to
Class I status. Specifically, Michigan believes that the
EPA should have required the Community to promulgate
a TIP. The parties agree that a TIP was never created, but
they disagree about whether a TIP was necessary and
whether the regulations codified at 40 C.F.R. § 52.21
constitute a valid FIP governing the Class I area. We
do not reach the merits of these arguments at this
stage, however, because Michigan may not establish
standing by simply identifying a procedural defect in
the redesignation process. See Summers v. Earth Island Inst.,
129 S. Ct. 1142, 1151 (2009) (“deprivation of a procedural
right without some concrete interest that is affected by
the deprivation—a procedural right in vacuo—is insuffi-
cient to create Article III standing”).
No. 08-2582 9
In order to connect the perceived procedural defect to
cognizable injuries for standing purposes, Michigan
asserts various harms that flow from the redesignation.
The first of these alleged injuries is the EPA’s imposition
of stricter requirements on emitting sources in Michigan
than in Wisconsin. Michigan characterizes this as the
EPA’s retaliating against Michigan for pursuing its
legal challenge to the redesignation.
It is true that, as a result of the MOA, fewer sources in
Wisconsin are subject to Class I restrictions than would
otherwise be the case. See Dispute Resolution With
the State of Wisconsin, 73 Fed. Reg. at 23,114. Wis-
consin’s treatment, however, is the result of the successful
negotiations between it and the Community, and the
EPA does not typically interfere with such agreements.
See Federal Implementation Plan Under the Clean
Air Act for Certain Trust Lands of the Forest County
Potawatomi Community Reservation if Designated as a
PSD Class I Area; State of Wisconsin, 71 Fed. Reg. 75,694,
75,696 (Dec. 8, 2006) (“[W]here the parties successfully
reach agreement through the dispute resolution process,
EPA is inclined to read section 164(e) of the Act to
provide that EPA has no further role to play in the
dispute resolution process.”). Michigan had access to
the very same dispute resolution opportunity, but it
failed to come to an agreement with the Community. That
meant that the EPA was obliged to resolve the dispute.
42 U.S.C. § 7474(e). It did so by imposing on Michigan’s
emitting sources the standard Class I restrictions, which
are the same restrictions that apply to emissions that
will reach any Class I area, whether it is within Michigan
10 No. 08-2582
(as some are) or any other state or tribal land. Far from
being punitive, this is the normal effect of a Class I
redesignation. If Michigan objects to these consequences,
it should pursue its dispute with Congress, not the
courts. There is no cognizable injury here.
Even assuming injury, it is doubtful that Michigan is
the injured party. There is no evidence in this record
indicating that the new restrictions affect Michigan di-
rectly; rather, they affect emitting sources within Michigan
that want to construct new facilities or modify existing
ones. These sources form part of Michigan’s economy,
and thus the redesignation affects Michigan’s economic
interests. Traditionally a State may sue based upon such
interests by invoking the doctrine of parens patriae. That
option is not available here, however, because a State
may not use that doctrine to sue the United States. See
Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923) (“It
cannot be conceded that a State, as parens patriae, may
institute judicial proceedings to protect citizens of the
United States from the operation of the statutes thereof. . . .
In that field it is the United States, and not the State,
which represents them as parens patriae, when such repre-
sentation becomes appropriate; and to the former, and
not to the latter, they must look for such protective mea-
sures as flow from that status.”). Nor can Michigan
invoke the “special solicitude” afforded to States for
standing purposes when there is a quasi-sovereign
interest at stake. See Massachusetts v. EPA, 549 U.S. 497,
520-23 (2007). In contrast to that case, in which Massachu-
setts’s coastal lands were threatened by rising sea
levels, Michigan’s air can only benefit from the
redesignation of Community lands to Class I status.
No. 08-2582 11
Michigan also alleges injury by claiming that the
redesignation creates “numerous complications and
unworkable conflicts” in its air pollution programs.
Michigan cites the EPA’s lack of regulatory guidance on
a range of topics, including the relevant Air Quality
Related Values (“AQRVs”) for the Class I area as well
as the radial distance from the Class I area that Michigan
should consider in evaluating permit applications. It
also complains that it does not know the identity of the
federal land manager (“Manager”) for the Community’s
Class I area.
As a preliminary matter, these issues appear to be
outside the scope of our review. Nowhere in the Act or
its corresponding regulations is the requirement that
AQRVs, radial distances, or the identity of Managers be
published as a prerequisite to redesignation. See 42 U.S.C.
§ 7474; 40 C.F.R. § 52.21(g). Thus, these alleged harms
do not seem germane to the challenge Michigan makes
here to the EPA’s final redesignation actions. Even if
they were, Michigan would lack standing because it
would be unable to show redressability. There is no
reason to think that a TIP, Michigan’s preferred pro-
cedural vehicle for redesignation, would include this
type of regulatory guidance while a SIP or the EPA’s
existing FIP do not. Nonetheless, we briefly discuss Michi-
gan’s concerns below.
Michigan’s uncertainty regarding key parts of the
permitting process is understandable. The EPA has not
yet published final guidance on a series of topics related
to the permitting process, although proposed rules and
12 No. 08-2582
unofficial guidance do exist. See Prevention of Significant
Deterioration (PSD) and Nonattainment New Source
Review (NSR), 61 Fed. Reg. 38,249 (July 23, 1996); EPA
N EW SOURCE R EVIEW W ORKSHOP M ANUAL D RAFT (1990) E.1-
E.24. Beyond these materials, Michigan also has access
to additional regulatory guidance. A lengthy set of PSD
regulations governs the Community Class I area. See 40
C.F.R. § 52.21. In its reply brief, Michigan withdrew its
challenge to these regulations, which was wise, as we
would not have jurisdiction to review them. See 42 U.S.C.
§ 7607(b)(1) (“nationally applicable regulations promul-
gated, or final action taken, by the Administrator under
this Act may be filed only in the United States Court
of Appeals for the District of Columbia”).
In addition, as Michigan knows from its experience
with nearby Class I areas, such as the Boundary Waters
Canoe Area Wilderness in Minnesota, 40 C.F.R. § 81.415,
and the Seney Wilderness Area in Michigan’s own
Upper Peninsula, 40 C.F.R. § 81.414, the issues it raises
are often hashed out in the context of the application
process for a particular permit and frequently involve
a series of cooperative arrangements. See Bernard F.
Hawkins, Jr. & Mary Ellen Ternes, The New Source
Review Program: Prevention of Significant Deterioration and
Nonattainment New Source Review, in T HE C LEAN A IR A CT
H ANDBOOK 131, 171 (Robert J. Martineau, Jr. & David P.
Novello eds., 2nd ed. 2004) (noting that a permit
applicant should consult with the permitting agency and
Managers to determine potentially affected Class I areas
and relevant AQRVs). Thus, while the general lack of
No. 08-2582 13
regulatory guidance is a concern in this area, Michigan’s
challenge comes at the wrong point in the process.
Michigan’s concern about the identity of the Manager
derives from its statutory duty to provide
notice of the permit application to the Federal Land
Manager and the Federal official charged with direct
responsibility for management of any lands within
a class I area which may be affected by emissions
from the proposed facility.
42 U.S.C. § 7475(d)(2)(A). If it cannot provide notice to
the relevant Managers, then it may be open to a citizen
suit under the Act. See 42 U.S.C. § 7604(a) (“any person
may commence a civil action on his own behalf . . .
against the Administrator where there is alleged a
failure of the Administrator to perform any act or duty
under this Act which is not discretionary with the Ad-
ministrator”).
But closer inspection reveals that this concern is un-
founded. The identity of the Manager is determinable
from the existing regulations that govern the Com-
munity’s Class I area. 40 C.F.R. § 52.21(b)(24) specifically
defines the Manager as “the Secretary of the department
with authority over such lands.” For the mandatory
Class I areas established by 42 U.S.C. § 7472(a), such as
parks, wilderness areas, and forests, the Managers are
the Department of Interior’s National Park Service and
Fish and Wildlife Service, and the Department of Agricul-
ture’s Forest Service. 40 C.F.R. §§ 81.400 et seq. For the
Community Class I area, the Manager appears to be the
EPA itself, as it currently administers the regulations at
14 No. 08-2582
40 C.F.R. § 52.21 governing the Community Class I area.
Once the Community promulgates a valid TIP (if it
chooses to do so), the EPA may delegate managerial
responsibilities to it. Such a move would be consistent
with the EPA’s own policies towards Indian Tribes.
See EPA P OLICY FOR THE A DMINISTRATION OF E NVIRON-
MENTAL P ROGRAMS ON INDIAN R ESERVATIONS 2 (1984)
(reaffirmed in 2005) (“Until Tribal Governments are
willing and able to assume full responsibility for
delegable programs, the Agency will retain responsi-
bility for managing programs for reservations.”). Until the
EPA delegates managerial responsibilities to the Com-
munity, Michigan may fulfill its statutory duty to
provide notice to the Community Class I area Manager by
notifying the EPA of any relevant permit application.
* * *
The Community has waited over fifteen years for
finality on the redesignation of its lands. Michigan’s
challenge to the EPA’s redesignation actions raises
some important issues about the PSD program’s
regulatory structure, but Michigan has failed to allege a
cognizable injury in fact and thus lacks standing to
pursue this case. As a result, the Community need not
wait any longer.
We D ISMISS the petition for review.
9-9-09