Court Rejects Claims By Environmental Groups That EPA Acted Arbitrarily In Approving Plan

Santa Fe – Today, the U.S. Court of Appeals for the Tenth Circuit upheld the U.S. EPA's approval of New Mexico's State Implementation Plan (SIP) addressing regional haze. The court also upheld similar plans submitted by Utah and Wyoming. The centerpiece of these plans is a joint program for reducing sulfur dioxide (SO2) emissions from power plants and other large industries that New Mexico and the other states have been implementing since 2003, achieving emissions reductions of over 30%.

The case was brought by WildEarth Guardians and other environmental groups, who alleged that EPA acted arbitrarily in approving the plans because the states had not demonstrated that the program achieved greater environmental progress than would be achieved by the application of best available retrofit technology (BART) for SO2 on a facility-by-facility basis. The court soundly rejected those claims, holding that EPA's decision was reasonable because the program covered facilities that would not be subject to BART, encompassed emissions from newly built facilities, imposed a mass-based cap on all SO2 emissions, and encouraged early reductions.

The SIP, as submitted by New Mexico in July 2011, also contained a determination of BART for nitrogen oxides (NOx) from PNM's San Juan Generating Station. EPA approved the SIP in November 2012, except for the NOx BART determination for San Juan. The resulting dispute over NOx from San Juan was later resolved through a settlement process led by Governor Martinez and negotiated by Environment Secretary (then-General Counsel) Ryan Flynn. Thus, with today's approval of the remainder of New Mexico's SIP, including the SO2 reduction program, all litigation over regional haze in New Mexico has been resolved.