Montana Pollution Rules|Make Strange Bedfellows

SEATTLE (CN) - Regulations to reduce air pollution in Montana's national parks made unlikely allies of environmentalists and coal-industry representatives at a 9th Circuit hearing.

"We're all in agreement that we have no clue what EPA was doing," said Arnold & Porter attorney Lisa Blatt, who represents the owners of the Colstrip and Corette coal plants.

At issue is the Montana Regional Haze Implementation Plan, which appeared nearly two years ago in the Federal Register.

The Environmental Protection Agency had drafted the plan when Montana refused to do so in 2006, under visibility-protection requirements of the Clean Air Act, which requires states and the EPA to eliminate human-caused haze from national parks and other federal lands.

The National Parks Conservation Association, Montana Information Center and the Sierra Club filed one challenge, claiming that the EPA should have required the Colstrip and Corette coal plants to do more toward emissions reduction.

Montana's "largest stationary source of air pollution" is the Colstrip plant in southeastern Montana, according to the brief. The conservationists say the plan causes emissions that hamper visibility in Yellowstone and Theodore Roosevelt National Parks, as well as nearby wilderness areas.

Corette is in Billings and is relatively small compared with Colstrip, but has "significantly sub-standard pollution controls," the brief also states.

PPL Montana, part owner and operator of two coal plants that the decision affects, meanwhile brought its own challenge. It claimed that the EPA had tightened emissions "without setting forth any legal basis for doing so." Though it agreed with some of the new technology requirements to restrict emissions, PPL claimed that other requirements will impose "millions of dollars of expenses without any corresponding visibility benefit."

Representatives from the conservationists and the coal company argued before a three-judge panel of the 9th Circuit on Friday that the EPA should scrap the plan and start over.

Jenny Harbine, with Earthjustice, represented the environmentalists and said the current plan would still leave visibility impaired while failing to address Montana's "dirtiest sources" of pollution, the coal plants. Harbine argued that costs led the EPA to unreasonably reject selective catalytic reduction (SCR) of coal-plant emissions.

Judge Richard Tallman grilled the lawyer on the huge cost difference between the plans, with little difference in result.

While SCR methods would lead to a "very small increment" in visibility improvement, compared with the selective noncatalytic reduction technology that the EPA chose, the record shows a cost differential of $13 million versus $83 million to implement, Tallman said.

"As I understand it, we're trying to get the biggest bang for the buck," Tallman said.

Later he asked: "Why is it irrational for the agency to look at that and say that's just not sufficiently incremental improvement in visibility to justify the enormous cost differential?"

Harbine countered that "the statutory standard is not getting the most bang for your buck."

"The statutory standard is achieving natural visibility conditions," she said.

Judge Marsha Berzon questioned when the agency can say that a plan costs too much.

Harbine said the EPA's own research found the costs of SCR to be "well within the range" of what was reasonable and rejected the method "contrary to its own analysis and contrary to the law."

Blatt, the attorney for the coal plants, said the EPA should have picked other methods to reduce coal emissions that were a better cost benefit. She said the agency "arbitrarily and inexplicably" rejected other technologies that "looked so much better by their own math."

Lime-injection technology and separated over-fire air (SOFA) methods, for example, would give "most of your bang," Blatt said.

Arguing for the EPA, Daniel Pinkston said each coal plant was different and the agency looked at the whole benefit of the different technologies.

Judge Diarmuid O'Scannlain said he and his colleagues are looking for "a reasoned explanation to defend the decision."

Pinkston replied that the EPA laid out all the facts, including cost and visibility benefits, in its plan. He said rational decisionmaking was evident because the EPA followed the statutory scheme.

"You keep saying that," Berzon said. "I'm asking you what is rational about saying we're just going to choose a number?"

Berzon took issue with Pinkerton's explanation of agency discretion.

"It's just a fancy way to say they could do whatever they want," she said.

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