Environmental lawyers live for acronyms. Why is CSAPR > BART? Because EPA determined that, on net, EPA’s Transport Rule is “better than BART,” meaning that compliance with the Transport Rule yields greater progress towards attaining EPA’s regional haze goals than would application of best available retrofit technologies to those sources that would otherwise be subject to BART. On Monday, the 8th Circuit agreed that EPA’s decision that the Transport Rule is better than BART was not arbitrary or capricious.
The opinion breaks no new ground, but does provide a useful reminder of the courts’ limited role in these cases:
Maybe time will prove [petitioner] right on some of these fronts; maybe not. But arbitrary and capricious review does not ask who is right. It asks whether the EPA followed a defensible process in assessing who is right.
Otherwise, the most notable aspect of this case is the “reasonable further progress” goals that Minnesota identified and that EPA approved. Minnesota has two “class 1” areas, Boundary Waters Canoe Area Wilderness and Voyageurs National Park. Minnesota concluded that Boundary Waters could reach natural visibility by 2093 and that Voyageurs could reach natural visibility by – I kid you not – 2177.
I’m going to let James T. Kirk tell me whether we’ve met that goal.
