ELR Citation: 43 ELR 20055
No(s). 08-16961, 11-11549 (11th Cir. Mar 6, 2013)

The Eleventh Circuit vacated EPA's 2011 disapproval of Alabama SIP provisions on opacity, thereby reinstating EPA's 2008 approval of opacity limits. EPA's 2011 disapproval was unauthorized by the CAA because EPA failed to make the statutorily required error determination. Neither the text of the final rule disapproving the revision published in the Federal Register, nor the record before the court, reveal that EPA affirmatively made the requisite error determination. EPA argued it was acting within its inherent authority to reconsider its decision, but because Congress has provided specific statutory procedures for revising a SIP, EPA cannot rely on any inherent authority here. Nor was the disapproval court-authorized under a 2009 order granting EPA's motion for voluntary remand. However, EPA's 2008 final rule approving the state's revisions on opacity was valid and lawful. Accordingly, the court granted petitions by the state and two utilities in support of the 2008 revisions, and denied environmental groups' petitions in support of the 2011 disapproval.