                                                            FILED
                                                United States Court of Appeals
                               PUBLISH                  Tenth Circuit

                                                       October 21, 2014
                 UNITED STATES COURT OF APPEALS
                                                    Elisabeth A. Shumaker
                         TENTH CIRCUIT                  Clerk of Court

WILDEARTH GUARDIANS;
HEAL UTAH; NATIONAL PARKS
CONSERVATION ASSOCIATION;
POWDER RIVER BASIN
RESOURCE COUNCIL; SIERRA
CLUB;

        Petitioners,
v.                                 Nos. 12-9596, 13-9502, 13-9506,
                                     13-9507, 13-9508, 13-9509,
UNITED STATES                                 13-9510
ENVIRONMENTAL PROTECTION
AGENCY; GINA McCARTHY,
Administrator, United States
Environmental Protection Agency,

        Respondents.

--------------------

PUBLIC SERVICE COMPANY OF
NEW MEXICO; PACIFICORP;
NEW MEXICO ENVIRONMENT
DEPARTMENT; BASIN
ELECTRIC POWER
COOPERATIVE; STATE OF
WYOMING; UTAH ASSOCIATED
MUNICIPAL POWER SYSTEM;
UTAH DIVISION OF AIR
QUALITY; CITY OF
ALBUQUERQUE,

        Intervenors,

and

AMERICAN COALITION FOR
CLEAN COAL ELECTRICITY,

       Amicus Curiae.




  PETITIONS FOR REVIEW OF FINAL DECISIONS ISSUED BY
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
    Nos. EPA-R06-OAR-2009-0050, EPA-R08-OAR-2011-0400,
      EPA-R08-OAR-2011-0114, EPA-RO6-OAR-2008-0702



Jenny K. Harbine, Earthjustice, Bozeman, Montana (John Barth, Hygiene,
Colorado, and Ashley D. Wilmes, WildEarth Guardians, Boulder,
Colorado, with her on the briefs), for Petitioners.

Chloe H. Kolman, United States Department of Justice, Environment &
Natural Resources Division, Washington, D.C. (Stephanie J. Talbert,
United States Department of Justice, Environment & Natural Resources
Division, Washington, D.C., Robert G. Dreher, Acting Assistant Attorney
General, United States Department of Justice, Environment & Natural
Resources Division, Washington, D.C.; M. Lea Anderson, Of Counsel,
United States Environmental Protection Agency, Washington, D.C.;
Matthew C. Marks, Of Counsel, United States Environmental Protection
Agency, Washington, D.C.; Brian Tomasovic, Of Counsel, United States
Environmental Protection Agency, Dallas, Texas; Sara L. Laumann, Of
Counsel, United States Environmental Protection Agency, Denver,
Colorado, with her on the brief), for Respondent.

E. Blain Rawson, Ray Quinney & Nebeker, P.C., Salt Lake City, Utah
(Emily Smith Loeffler, Quinney & Nebeker, P.C., Salt Lake City, Utah,
Michael G. Jenkins, Assistant General Counsel, PacifiCorp Energy with
him on the brief), for Intervenor PacifiCorp Energy.

Matthias L. Sayer, Assistant Attorney General, Wyoming Office of
Attorney General, Cheyenne, Wyoming (Jay A. Jerde, Deputy Attorney
General, Wyoming Office of Attorney General, Cheyenne, Wyoming, with
him on the brief), for Intervenor State of Wyoming.



                                    2
Christopher L. Colclasure, Holland & Hart LLP, Denver, Colorado, for
Intervenor Basin Electric Power Cooperative;

Richard L. Alvidrez and Robert H. Clark, Miller Stratvert P.A.,
Albuquerque, New Mexico; Kallie H. Kuehl, Corporate Counsel,
Albuquerque, New Mexico, on the brief for Intervenor Public Service
Company of New Mexico.

Jeffrey M. Kendall, General Counsel and William G. Grantham, Assistant
General Counsel, for New Mexico Environment Department, on the brief
for Intervenor New Mexico Environment Department.

Carol Parker, Assistant City Attorney and Adelia W. Kearny, Deputy City
Attorney, Albuquerque, New Mexico, on the brief for Intervenor City of
Albuquerque.

H. Michael Keller and Mary Jane E. Galvin-Wagg, Van Cott, Salt Lake
City, Utah; Mason Baker, General Counsel, Salt Lake City, Utah, on the
brief for Intervenor Utah Associated Municipal Power Systems.

John E. Swallow, Utah Attorney General and Christian C. Stephens,
Assistant Attorney General, Salt Lake City, Utah; Craig W. Anderson,
Division Chief and Assistant Attorney General, Environment Division,
Utah Attorney General’s Office, Salt Lake City, Utah, on the brief for
Intervenor Utah Division of Air Quality.

Paul M. Seby and Marian C. Larsen, Seby Larsen LLP, Denver, Colorado,
on the brief for Amicus Curiae American Coalition for Clean Coal
Electricity.



Before BACHARACH, SEYMOUR, and MURPHY, Circuit Judges.


BACHARACH, Circuit Judge.

     This appeal grows out of the Clean Air Act. In an effort to comply with

the statute, three states (New Mexico, Utah, and Wyoming), one city (City of

Albuquerque), and one county (Bernalillo County) adopted a regional cap-and-

                                     3
trade program regulating sulfur-dioxide emissions over the Colorado Plateau. 1

Under this program, each participant obtained a ceiling on sulfur-dioxide

emissions. If the ceiling was met, polluters would get allocations of sulfur

dioxide that could be emitted. With these allocations, polluters had a choice.

They could use the allocations or cut emissions and trade the unused portions of

the allocations.

      The program required approval of the Environmental Protection

Agency. In determining whether to approve the program, the EPA had to

apply its regulations. Under these regulations, states could satisfy the

Clean Air Act by ensuring installation of the best available retrofit

technology in all eligible major sources that contributed to visibility

impairment. This mode of compliance is referred to as “BART.” States

affecting visibility over the Colorado Plateau were allowed to use an

alternative program in lieu of BART. But this alternative program had to

be better than BART in improving air visibility.




1
      Final Rule, Approval and Promulgation of State Implementation Plans;
Wyoming, 77 Fed. Reg. 73,926, 73,926 (Dec. 12, 2012); Final Rule, Approval,
Disapproval and Promulgation of State Implementation Plans; Utah, 77 Fed. Reg.
74,355, 74,355 (Dec. 14, 2012); Final Rule, Approval and Promulgation of State
Implementation Plans; New Mexico, 77 Fed. Reg. 70,693, 70,693 (Nov. 27,
2012); Final Rule, Approval and Promulgation of State Implementation Plans;
City of Albuquerque-Bernalillo County, 77 Fed. Reg. 71,119, 71,119 (Nov. 29,
2012).
                                      4
      New Mexico, Utah, Wyoming, the City of Albuquerque, and Bernalillo

County persuaded the EPA that the trading program would yield better results

than BART because:

      ●     the program covered polluters that would not have been subject
            to BART,

      ●     the program encompassed emissions from new sources, which
            would not have been subject to BART, and

      ●     the program encouraged polluters to expedite equipment
            upgrades and to operate below full capacity.

      Five environmental groups filed petitions for review, 2 arguing that

the EPA should not have approved the trading program. To decide these

petitions, we must determine whether the EPA acted arbitrarily and

capriciously in finding that the trading program was better than BART.

We conclude that the EPA’s decision was neither arbitrary nor capricious.

Thus, we deny the petitions for review.

I.    The Clean Air Act and the EPA’s Regulatory Framework

      The petitions require an understanding of the statutory and regulatory

requirements for alleviation of air pollution.

      A.    Statutory Requirement for EPA Guidelines

      The Clean Air Act requires the EPA to establish regulations to ensure

“reasonable progress” toward the improvement in visibility and


2
      The Petitioners are WildEarth Guardians, Heal Utah, National Parks
Conservation Association, Powder River Basin Resource Council, and
Sierra Club.
                                      5
“compliance with the requirements of [42 U.S.C. § 7491].” 3 42 U.S.C.

§ 7491(a)(4). In light of this requirement, the EPA had to establish

regulations requiring states to develop implementation plans to improve

visibility and adopt, maintain, and enforce air quality standards. Id. §§

7410(a)(1), 7491.

     Under the statutory scheme, the EPA would then review the state

implementation plans to ensure compliance with the Clean Air Act and

implementing regulations. Id. §§ 7410(a)(3)(B), 7492(e)(2); see Oklahoma

v. EPA, 723 F.3d 1201, 1204 (10th Cir. 2013). Once approved, state

implementation plans would be enforceable as federal law. 42 U.S.C.

§§ 7413, 7604.

     States implementing the BART requirement do so in two steps: (1)

identify the sources subject to BART, and (2) determine the particular

technologies required for individual sources. 40 C.F.R. § 51.308(e)(1); see

Util. Air Regulatory Grp. v. EPA, 471 F.3d 1333, 1335-36 (D.C. Cir.

2006). In considering the required technologies, states must consider five

factors for each BART-eligible source:

     (1)   the costs of compliance;


3
      “Reasonable progress” is measured by comparing “the costs of
compliance, the time necessary for compliance, . . . the energy and nonair
quality environmental impacts of compliance, and the remaining useful life
of any existing [regulated] source” (known as the “four factors”). See 42
U.S.C. § 7491(g)(1); 40 C.F.R. § 51.308(d)(1)(i)(A).

                                      6
      (2)   the energy and nonair quality environmental impacts of
            compliance;

      (3)   the existing pollution control technologies already in place;

      (4)   the remaining useful life of the source; and

      (5)   the improvement in visibility anticipated from the use of given
            technologies.

42 U.S.C. § 7491(g)(2).

      B.    Regulations Governing the Colorado Plateau

      Congress also enacted legislation requiring the EPA to establish a

visibility transport commission to study regional haze in the Grand Canyon

and to recommend curative action. 42 U.S.C. § 7492(f).

      To comply, the EPA established the Grand Canyon Visibility

Transport Commission, which would “assess scientific, technical, and other

information related to adverse visual air quality impacts from potential or

projected emissions growth from sources located in the Transport Region.”

Joint App. at 71. Upon completion of this assessment, the Transport

Commission would report to the EPA on appropriate measures to improve

visual air quality on the Colorado Plateau. Id. 4




4
      The EPA expanded the scope of the Grand Canyon Visibility
Commission’s review to include sixteen Class I areas in the vicinity of the
Grand Canyon. With this expansion, the Commission addressed visual air
quality in the “Golden Circle” of parks and wilderness areas in the
Colorado Plateau. See Notice of Meeting, Grand Canyon Visibility
Transport Commission, 56 Fed. Reg. 57,522, 57,523 (Nov. 12, 1991).


                                      7
      1.    The Grand Canyon Visibility Transport Commission

      The Transport Commission analyzed the effects of regional haze in

sixteen Class I areas 5 affected by pollution in nine states (Arizona,

California, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah, and

Wyoming). 6 42 U.S.C. § 7492(c)(1); Final Rule, Regional Haze

Regulations, 64 Fed. Reg. 35,714, 35,770 (July 1, 1999).

      Based on this analysis, the Transport Commission recommended a

regional cap-and-trade program for sulfur dioxide that would go into effect

when participating states exceed an emissions target. Joint App. at 56.

Details of the program would be worked out later.

      The functions of the Transport Commission were passed on to the

Western Regional Air Partnership, which continued the study and

recommended a plan. Id. at 190. The plan included:

      (1)   milestones to measure reductions in regional emissions of
            sulfur dioxide, and


5
      Class I federal areas include all regions as of August 7, 1977,
consisting of national wilderness areas and national memorial parks
exceeding 5,000 acres, national parks exceeding 6,000 acres, and
international parks. See 42 U.S.C. § 7472(a).
6
      The sixteen Class I areas are the Grand Canyon National Park,
Sycamore Canyon Wilderness, Petrified Forest National Park, Mount Baldy
Wilderness, San Pedro Parks Wilderness, Mesa Verde National Park,
Weminuche Wilderness, Black Canyon of the Gunnison Wilderness, West
Elk Wilderness, Maroon Bells Wilderness, Flat Tops Wilderness, Arches
National Park, Canyonlands National Park, Capital Reef National Park,
Bryce Canyon National Park, and Zion National Park. 40 C.F.R.
§ 51.309(b)(1).
                                       8
     (2)   a trading program for the nine states.

The trading program acted as a “backstop,” which would be triggered only

if the milestones were reached.

     2.    The Regional Haze Rule

     In 1999, the EPA adopted the Transport Commission’s

recommendations in its Regional Haze Rule, 40 C.F.R. §§ 51.308, 51.309.

This rule requires states to develop programs that assure reasonable

progress toward meeting the national goal of addressing visibility

impairment in Class I areas. 40 C.F.R. § 51.300(a). Sections 51.308 and

51.309 create two methods of compliance.

     Under the first method, states can submit an implementation plan

containing emission limitations applying BART for each BART-eligible

source impairing visibility in a Class I area. 40 C.F.R. § 51.308(e).

     The second method is authorized in 40 C.F.R. § 51.309. Through

this method, states could use the Transport Commission’s cap-and-trade

program if participants would expect better results than they would have

had under BART regulations. The cap-and-trade program is known as the

“309 program.” 7

     The 309 program establishes voluntary measures to reduce sulfur-

dioxide emissions through milestones providing “steady and continuing

7
      States opting for a 309 program still had to comply with § 51.308
with respect to any other Federal Class I area not encompassed in the 309
program. 40 C.F.R. § 51.309(a).
                                     9
emissions reductions through 2018.” 40 C.F.R. § 51.309(d)(4)(i). After

2018, the milestone remains constant until the states submit revised

implementation plans. Id. § 51.309(d)(4)(vi)(A). These milestones must

provide a “50 to 70 percent reduction in [sulfur dioxide] emissions from

1990 actual emission levels by 2040.” Id. § 51.309(d)(4)(i).

     If sulfur-dioxide emissions surpass the milestone, a backstop

regional emission trading program would be triggered. Under the program,

sources are given a set volume of emissions. Any source exceeding its

allowance must pay a penalty and suffer a loss in its allotted emissions.

Joint App. at 226-27. To encourage early reductions in emissions, the

trading program provided additional allocations to sources that reduce

emissions ahead of schedule.

     Upon approval of an implementation plan, the EPA would regard the

state to be in compliance through 2018 with the reasonable-progress

requirement for the sixteen Class I areas encompassed in the 309 program.

40 C.F.R. § 51.309(a). For additional Class I areas not covered in the 309

program, the state had to show long-term strategies under § 308. Id.

§ 51.309(g).

     3.    The D.C. Circuit Court’s Rulings

     After the Western Regional Air Partnership submitted its report,

Arizona, New Mexico, Oregon, Utah, Wyoming, the City of Albuquerque,

and Bernalillo County chose to participate in the 309 program.

                                     10
Before the EPA acted on these participants’ submissions, the D.C. Circuit

Court of Appeals invalidated part of the § 51.308(e) methodology

(requiring evaluation of progress by considering emission reductions in the

aggregate). Am. Corn Growers Ass’n v. EPA, 291 F.3d 1, 8-9 (D.C. Cir.

2002).

         The EPA continued to apply the invalidated methodology in the

context of determining whether the 309 program was better than BART, but

the D.C. Circuit Court of Appeals again struck down the EPA’s action in

Center for Energy & Economic Development v. EPA, 398 F.3d 653, 660

(D.C. Cir. 2005). There the court upheld the EPA’s view that an

alternative program could satisfy the reasonable progress goals. But, the

court held that the EPA should not have used the invalidated methodology.

Ctr. for Energy & Econ. Dev., 398 F.3d at 654.

         4.   Regional Haze Rule Revisions

         In 2006, the EPA responded to these decisions by revising the

Regional Haze Rule, making the evaluation of the final BART factor a

source-by-source determination rather than one based on an evaluation of

emission reductions in the aggregate. Final Rule, Regional Haze

Regulations; Revisions to Provisions Governing Alternative to Source-

Specific BART Determinations, 71 Fed. Reg. 60,612, 60,612-13 (Oct. 13,

2006). Thus, the participating states had to resubmit implementation

plans.

                                       11
      5.      Subsequent Implementation Plans Adopting 309 Program

      Arizona and Oregon decided not to participate in the 309 program.

But New Mexico, Utah, Wyoming, the City of Albuquerque, and Bernalillo

County resubmitted plans for a 309 program. In the new plans, the

participants adjusted the emission milestones to account for withdrawal of

Arizona and Oregon and reductions already achieved under the 2003

milestones. Joint App. at 426, 430-38.

      The new implementation plans set the following regional milestones:

              ●    269,083 tons of sulfur dioxide in 2008,

              ●    234,903 tons of sulfur dioxide in 2009,

              ●    200,722 tons of sulfur dioxide in 2010-2012,

              ●    185,795 tons of sulfur dioxide in 2013,

              ●    170,868 tons of sulfur dioxide in 2014,

              ●    155,940 tons of sulfur dioxide in 2015-17, and

              ●    141,849 tons of sulfur dioxide in 2018 and beyond.

Id. at 461.

      When determining whether the 309 program would outperform

BART, the participants considered BART-eligible sources and other

sources. Because presumptive rates were not established for the other

sources, the states analyzed individual sources to determine the emission-

rate benchmark for sources that were ineligible under BART. Id.



                                      12
      The 309 program set the 2018 milestone to the BART benchmark

based on the presumptive BART in Appendix Y. But New Mexico, Utah,

Wyoming, the City of Albuquerque, and Bernalillo County determined that

the 309 program would outperform BART by:

          encouraging early cuts in emissions,

          including non-BART stationary sources, covering 63 more
           sources that produce emissions,

          capping growth in new sources,

          addressing not only stationary sources but also mobile sources,
           fire, and clean air corridors (which are not covered by BART),
           and

          establishing a “mass-based cap,” which created an absolute
           limit on allowable emissions (unaffected by demand
           fluctuations or operational malfunctions that could increase
           emissions).

      In 2011, New Mexico, Utah, Wyoming, the City of Albuquerque, and

Bernalillo County revised their implementation plans adopting the 309

program. In late 2012, the EPA approved the plans, finding that the 309

program would achieve greater reasonable progress than BART. Id. at 1-

53. The Petitioners challenge the EPA’s approval of the 309 program.

II.   Standard of Review

      The Clean Air Act authorizes judicial review of the EPA’s approval

of state implementation plans, but does not designate the applicable

standard of review. 42 U.S.C. § 7607(b)(1). In conducting this review, we


                                    13
are bound by the Administrative Procedure Act. See Oklahoma v. EPA,

723 F.3d 1201, 1211 (10th Cir. 2013) (“We follow the standards of the

Administrative Procedure Act . . . in reviewing the EPA’s actions under the

[Clean Air Act].”).

      Under the Administrative Procedure Act, we can reverse agency

action only if it is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This

standard requires us to determine whether the agency considered the

relevant data and rationally explained its decision. See In re FCC, 753

F.3d 1015, 1041 (10th Cir. 2014). Under this standard, we will not disturb

an agency action unless the agency

      relied on factors which Congress has not intended it to
      consider, entirely failed to consider an important aspect of the
      problem, offered an explanation for its decision that runs
      counter to the evidence before the agency, or is so implausible
      that it could not be ascribed to a difference in view or the
      product of agency expertise.

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983).

      If the agency’s “‘path may reasonably be discerned’” from its

explanation, we will not disturb the action even when the explanation is

not entirely clear. Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S.

461, 497 (2004) (quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys.,

Inc., 419 U.S. 281, 286 (1974)). When an agency acts under an “‘unwieldy


                                       14
and science-driven statutory scheme[] like the Clean Air Act,’” we afford

the agency “‘particular deference.’” Nat’l Ass’n of Clean Air Agencies v.

EPA, 489 F.3d 1221, 1229 (D.C. Cir. 2007) (quoting Bluewater Network v.

EPA, 372 F.3d 404, 410 (D.C. Cir. 2004)).

III.   The EPA’s Approval of the Implementation Plans

       The environmental groups argue that:

       ●     the 309 program does not achieve greater reasonable progress
             than implementation of BART,

       ●     the 309 program will not achieve reasonable progress toward
             eliminating visibility impairment because only three of the nine
             eligible states participated, and

       ●     New Mexico’s program is deficient based on the failure to
             analyze emissions from the Escalante coal plant.

We reject each argument.

       A.    The EPA’s Determination that the 309 Program Was Better
             than BART

       The Regional Haze Rule establishes three steps for states to follow

when determining whether an alternative program is better than BART:

       (1)   establish a BART benchmark and predict emission reductions if
             BART were implemented;

       (2)   predict the emission reductions from an alternative program;
             and

       (3)   compare the two.

40 C.F.R. § 51.308(e)(2).




                                      15
      The environmental groups contend that the EPA acted arbitrarily and

capriciously because:

      ●     the BART benchmark improperly adopted the presumptive
            emission rate established in Appendix Y of the BART
            guidelines,

      ●     the participants misapplied the “clear weight of the evidence”
            standard, and

      ●     the participants overstated the effectiveness of the 309 program
            by inappropriately considering qualitative factors.

      The EPA’s approval of the better-than-BART determination was not

arbitrary or capricious because:

      ●     the presumptive BART benchmark was appropriate under the
            Clean Air Act and Regional Haze Rule,

      ●     the Regional Haze Rule allows comparison of BART to the
            alternative measure through a “clear weight of the evidence”
            standard, and

      ●     the participants properly considered qualitative factors in
            determining the effectiveness of the 309 program.

      1.    BART Benchmark

      When approving the implementation plans, the EPA concluded: “The

BART benchmark calculation . . . was not intended to assess actual

emissions at BART subject sources nor was it intended to assess the

control capabilities of later installed controls. Instead, the presumptive

[sulfur dioxide] emissions rate served as a necessary simplifying

assumption.” Wyoming Rule, 77 Fed. Reg. at 73,929-30.




                                     16
     The environmental groups challenge this conclusion, arguing that

source-specific data showed that actual emissions fell below the BART

benchmark. For this argument, the environmental groups rely on a report

prepared by their expert witness, Ms. Vicki Stamper. Ms. Stamper

concluded that source-by-source BART analyses and actual emissions were

lower than the presumptive BART benchmark used to approve the 309

program.

     Relying on Ms. Stamper’s conclusions, the environmental groups

contend that:

     ●     the participants should have conducted a source-by-source
           BART analysis instead of relying on the presumptive BART
           benchmark, and

     ●     the BART benchmark was inappropriate.

     The first argument is untimely. Under federal law, a petitioner has

only 60 days to sue after the agency acts. 42 U.S.C. § 7607(b)(1); see

Utah v. EPA, 750 F.3d 1182, 1184 (10th Cir. 2014). The environmental

groups failed to comply with this deadline.

     The environmental groups’ second challenge, involving the validity

of the BART benchmark, fails on the merits.

     a.    The 309 Program’s Presumptive BART Benchmark

     The first challenge requires an understanding of:

     ●     the regulatory requirements for states to establish the BART
           benchmark, and


                                    17
     ●     how the participants used the presumptive BART benchmark in
           their better-than-BART analyses.

     As noted above, participants in the 309 program had to determine the

“BART benchmark,” which represents the expected emissions under a

BART regime. See 40 C.F.R. § 51.308(e)(2).

     The BART benchmark is typically set by determining how much

sulfur dioxide would be emitted by each BART-regulated source. See id.

§ 51.308(e)(2)(i)(C) (“This analysis must be conducted by making a

determination of BART for each source subject to BART and covered by

the alternative program as provided for in [the subsection outlining the

BART determination].”).

     But an exception exists when the alternative program is designed to

achieve a requirement other than BART, such as the reasonable progress

goals. In this situation, a source-by-source BART determination is not

necessary to determine the BART benchmark. Instead, the state could

determine the BART benchmark “based on both source-specific and

category-wide information, as appropriate.” Id.

     The 309 program was designed to implement something other than

BART: the recommendations of the Transport Commission toward

eradication of regional haze over the Colorado Plateau. Accordingly, the

participants did not need to conduct source-by-source BART




                                     18
determinations to establish the BART benchmark. And the participants did

not do so.

      Instead, the participants relied on the Western Regional Air

Partnership’s better-than-BART analysis. As the BART benchmark, the

Air Partnership determined that “[a]ll utilities that were determined to be

subject to BART were assumed to be operating at the presumptive emission

rate established in 40 CFR Part 51, Appendix Y [0.15 pound per million

British thermal units].” Joint App. at 435.

      The “Appendix Y” presumptive emission rate refers to the EPA’s

2005 amendment to the Regional Haze Rule, which added guidelines to

instruct states analyzing individual sources under BART. See 70 Fed. Reg.

39,131-32; 40 C.F.R. pt. 51, App. Y. In Appendix Y, the EPA established

a presumptive BART emission rate of 0.15 pound per million British

thermal units for BART-eligible sources.

      The Western Regional Air Partnership relied on Appendix Y’s

presumptive emission rate for all but two BART-eligible sources. For

these two sources (the Hunter and Huntington power plant units), a lower

BART emission rate of 0.12 pound per million British thermal units was

used based on limits already in place. Joint App. at 448.

      b.     Timeliness

      The environmental groups argue that the participants should have set

the BART benchmark by predicting emissions for each BART-regulated

                                     19
source (rather than relying on the presumptive rate in Appendix Y). This

argument is not timely.

     When amending the Regional Haze Rule in 2006, the EPA recognized

that “the [Appendix Y] presumptions represent[ed] a reasonable estimate of

a stringent case BART.” 71 Fed. Reg. at 60,619. In light of the

reasonableness of this estimate, the EPA decided in 2006 that participants

could rely on the presumptive rate when attempting to meet a requirement

other than BART. By using the presumptive rate, participants could avoid

the need to predict emissions for each source under a BART system of

regulation. Id. at 60,618-19.

     The environmental groups argue that the participants should have

conducted their own source-specific BART analyses. In the absence of

these analyses, the environmental groups contend that the EPA arbitrarily

approved use of the presumptive BART benchmark. In effect, this

contention challenges the EPA’s 2006 amendment establishing use of the

presumptive BART benchmark. We can adopt this view only if we

conclude that the EPA erred in adopting the Appendix Y BART as a

presumptive benchmark. 8



8
      The environmental groups deny that they are asserting a need for a
source-by-source BART determination. But in her expert report, Ms.
Stamper stated that § 51.308(e)(2)(i)(C) required a source-by-source BART
determination. Joint App. at 684. And the environmental groups rely
heavily on this report in criticizing the presumptive BART benchmark.
                                    20
     It is too late for the Petitioners to make this argument. If the

environmental groups wished to challenge adoption of Appendix Y as the

presumptive BART emission rate, they had to file a petition for review

within 60 days of the EPA’s publication of the 2006 amendment to the

Regional Haze Rule. See 42 U.S.C. § 7607(b)(1); Utah v. EPA, 750 F.3d

1182, 1184 (10th Cir. 2014). That amendment was published in the

Federal Register on October 13, 2006, and the petitions for review were

not filed until more than six years later (December 2012 and January

2013). See 71 Fed. Reg. at 60,612; 40 C.F.R. Pt. 51, App. Y.

Accordingly, we lack jurisdiction over a challenge to the EPA regulation

authorizing use of Appendix Y in lieu of a source-by-source determination.

See Utah, 750 F.3d at 1184; Utah v. EPA, ___ F.3d ___, Nos. 13-9535, 13-

9536, 2014 WL 4345770, at *5 (10th Cir. Sept. 3, 2014).



Pet’rs’ Opening Br. at 34, 41 (arguing that the presumptive BART was
“much less stringent than source-by-source BART determinations”).

     In their reply brief, the environmental groups retreat from this
argument: “Contrary to EPA’s assertions in its answering brief, Petitioners
do not contend that states participating in the 309 Program must conduct
source-by-source BART determinations based on the methodology in 40
C.F.R. § 51.308(e)(1) and the BART Guidelines in order to develop a valid
BART benchmark.” Pet’rs’ Reply Br. at 6.

      Even if the environmental groups had not retreated from this
argument, it would have been untimely. Thus, we need not address the
parties’ disagreement over Ms. Stamper’s opinions on emissions from
BART-regulated sources. See, e.g., Industry Intervenors’ Response Br. at
34.
                                     21
         c.   Actual Emissions Lower than the Presumptive BART
              Emission Rate

         The environmental groups also invoke § 51.308(e)(2)(i)(C), arguing

that the EPA should have considered whether use of category-wide

information was “appropriate.” Pet’rs’ Reply Br. at 26; see 40 C.F.R.

§ 51.308(e)(2)(i)(C). 9 This argument stems from unreasonable assumptions

about the information available to the states when they submitted their

plans.

         According to the environmental groups, most BART-eligible sources

emitted less sulfur dioxide than the presumptive benchmark would allow

and the EPA elsewhere projected even lower presumptive emission rates.

In the face of this data, the environmental groups argue that

§ 51.308(e)(2)(i)(C) would prohibit states from relying on Appendix Y’s

presumptive BART rate.




9
         The environmental groups argue:

         Petitioners challenge EPA’s application of th[e] authorization
         [to use a simplifying presumption] and interpretation to
         establish the BART benchmark despite readily available
         category-wide    and   source-specific  evidence    that   the
         presumptive rate is not an “appropriate” simplifying
         assumption because it grossly underestimates the emission
         reductions achievable by installing BART at the affected
         sources.

Pet’rs’ Reply Br. at 26.

                                       22
     This argument is based largely on the report of Ms. Stamper, who

said that 17 of the BART-eligible sources had emission rates that dipped

below the rates allowed in Appendix Y. Reliance on Ms. Stamper’s report

is misguided. Ms. Stamper relied on contemporaneous measures of

emissions post-dating the participants’ implementation plans, and the EPA

regulations expressly allowed reliance on the presumptive rate.

     The Western Regional Air Partnership submitted its better-than-

BART determination in October 2010, and the participants relied on this

determination in their 2011 implementation plans. Joint App. at 435; see

Final Rule, Approval and Promulgation of State Implementation Plans;

Wyoming, 77 Fed. Reg. 73,926, 73,926 (Dec. 12, 2012); Final Rule,

Approval, Disapproval and Promulgation of State Implementation Plans;

Utah, 77 Fed. Reg. 74,355, 74,355 (Dec. 14, 2012); Final Rule, Approval

and Promulgation of State Implementation Plans; New Mexico, 77 Fed.

Reg. 70,693, 70,693 (Nov. 27, 2012); Final Rule, Approval and

Promulgation of State Implementation Plans; City of Albuquerque-

Bernalillo County, 77 Fed. Reg. 71,119, 71,119 (Nov. 29, 2012).

     The environmental groups contend that the participants should have

accounted for actual emissions. The EPA could reasonably conclude that

inclusion of Ms. Stamper’s data would have been infeasible, for the better-

than-BART determination resulted from coordinated efforts by the



                                    23
participants over several years 10 and much of the omitted data did not even

exist until this process had almost come to an end. Thus, the EPA rejected

the environmental groups’ insistence that the participants should have

incorporated the new data. Joint App. at 30-31. This conclusion was not

arbitrary or capricious. See San Luis & Delta-Mendota Water Auth. v.

Jewell, 747 F.3d 581, 620-21 (9th Cir. 2014) (holding that the Fish and

Wildlife Service’s choice of a baseline, though imperfect, was not arbitrary

or capricious because removal of the imperfections would not have been

feasible).

      Reliance on Ms. Stamper’s data was not only infeasible, but also

invalid under the EPA regulations. These regulations expressly allowed

participants to use the presumptive benchmark to predict emissions instead

of assessing how much pollution would be emitted from each source under

a BART regime. 71 Fed. Reg. at 60,618-19. Ms. Stamper’s analysis

suggests that the presumptive benchmark is overly generous for some

sources. But imprecision is inherent in the nature of a simplifying

assumption.

      In arguing that the EPA disregarded site-specific information, the

environmental groups refer to two units (the Hunter Unit 1 and the Dave

Johnson Unit 4) and point out that the EPA used actual emissions in the

Cross-State Air Pollution Rule. See Final Rule, Regional Haze; Revision

10
      Joint App. at 175, 426.
                                     24
to Provisions Governing Alternatives to Source-Specific BART

Determinations, 77 Fed. Reg. 33,642, 33,649 (June 7, 2012); Proposed

Rule, Regional Haze; Revisions to Provisions Governing Alternatives to

Source-Specific BART Determinations, 76 Fed. Reg. 82,219, 82,225-26

(Dec. 30, 2011).

     The EPA’s use of actual emissions in one rule does not require the

EPA to use actual emissions in every rule. And, the regulations expressly

allow participants to use the benchmark in lieu of actual emissions. Thus,

the EPA interpreted its Regional Haze Rule and concluded:

     ●     “[T]here is no need to develop a precise estimate of the
           emissions reductions that could be achieved by BART in order
           simply to compare two programs,” and

     ●     “the [Appendix Y] presumptions represent a reasonable
           estimate of a stringent case BART.”

71 Fed. Reg. at 60,618-19.

     This interpretation was reasonable. Section 51.308 mandates the use

of source-specific and category-wide information “as appropriate.” 40

C.F.R. § 51.308(e)(2)(i)(C). Information may be appropriate in one

context, but not another. Section 51.308 provides flexibility in what may

be considered, and the EPA reasonably interpreted that provision.

     d.    The EPA’s Statements Regarding Appendix Y’s Presumptive
           BART

     The environmental groups also argue that the presumptive rate (0.15

pound per million British thermal units) is rebuttable and serves only as

                                     25
the starting point of the BART analysis. Pet’rs’ Opening Br. at 42. This

argument is rejected.

     For this argument, the environmental groups refer to other rules in

which the EPA has clarified the BART analysis for states and the role of

Appendix Y. Id. at 43. For example, the environmental groups point to

the rejection of Arkansas’ implementation plan, where the EPA said that

states must “‘consider the level of control that [was] currently achievable

at the time the BART analysis [was] being conducted.’” Id. (quoting Final

Rule; Approval and Promulgation of Implementation Plans; Arkansas, 77

Fed. Reg. 14,604, 14,613-14 (Mar. 12, 2012)).

     This argument overlooks a critical distinction. In the cited instances,

the states were conducting a BART analysis. Here, they weren’t. Instead,

the participants in our case were conducting a better-than-BART

determination. This analysis required a comparison of the 309 program to

the BART benchmark, which adopted Appendix Y’s presumptive BART as

a simplifying assumption. The environmental groups have not identified

any authority requiring a source-by-source analysis for states conducting a

309 program.

     2.    Comparison of the 309 Program to BART

     At the second and third stages of the better-than-BART analysis, the

participant must:



                                     26
     (1)   predict the emission reductions achieved by implementing the
           alternative program (the second stage), and

     (2)   compare the effectiveness of the alternative measure to the
           effectiveness of implementing BART (the third stage).

40 C.F.R. § 51.308(e)(2)(i)(D), (E). The environmental groups challenge

the EPA’s approval at both stages.

     At the third stage, the groups claim that the participants used an

improper method of comparison. And at the second stage, the groups

allege improper reliance on qualitative factors to bolster the effectiveness

of the 309 program. Because the applicability of qualitative factors at the

second stage depends on the method used at the third stage, we first

address whether the participants used the proper method to compare the

309 program to BART.

     a.    Comparison of the Milestones (in the 309 Program) to BART

     The EPA compared the 309 program as a whole to BART. The

environmental groups suggest in their reply brief that the EPA should have

compared the 309 program milestones (rather than the 309 program as a

whole) to the effectiveness of BART. See 40 C.F.R. § 51.309(d)(4)(i).

But we cannot entertain this suggestion because it was unexhausted and

omitted in the environmental groups’ opening brief.

     Under the Clean Air Act, “[o]nly an objection to a rule or procedure

which was raised with reasonable specificity during the period for public

comment (including any public hearing) may be raised during judicial

                                     27
review.” 42 U.S.C. § 7607(d)(7)(B); see EPA v. EME Homer City

Generation, L.P., __ U.S.__, 134 S. Ct. 1584, 1602 (2014) (holding that

satisfaction of § 7607(d)(7)(B) was mandatory, but not jurisdictional). But

the environmental groups failed to raise this issue in the EPA proceedings.

That failure renders the claim unexhausted. See Oklahoma v. EPA, 723

F.3d 1201, 1214-15 (10th Cir. 2013).

      Even in the present action, the environmental groups did not raise the

issue until they filed their reply brief. By then it was too late to raise a

new issue. See M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 768

n.7 (10th Cir. 2009) (the “general rule in this circuit is that a party waives

issues and arguments raised for the first time in a reply brief”).

      We decline to entertain this issue, for it was not exhausted or raised

in the environmental groups’ opening brief.

      b.    Consideration of Qualitative Factors

      The EPA determined that the 309 program as a whole was more

effective than a fully implemented BART regime because the 309 program:

      (1)   included non-BART sources of sulfur-dioxide emissions,

      (2)   included new sources of emissions,

      (3)   created a “mass-based” cap covering emissions in the
            aggregate, and

      (4)   encouraged early reductions in emissions.




                                       28
The environmental groups characterize this rationale as qualitative and

argue that the EPA should instead have focused solely on quantitative

considerations. We reject this argument.

     i.    Failure to Use § 51.308(e)(3)’s Method

     According to the environmental groups, a quantitative approach was

required in 40 C.F.R. § 51.308(e)(3). Instead of using one of the

quantitative methods, the groups continue, the EPA improperly applied a

qualitative standard (“clear weight of the evidence”).

     Section 51.308(e)(2)(i) sets out the process to compare an alternative

program to BART. This section did not initially articulate a method for

the comparison. The EPA considered a method that would compare the

“expected visibility improvement under the alternative program and under

BART according to the criteria established in § 51.308(e)(3).” Proposed

Rule, Regional Haze Regulations; Revisions to Provisions Governing

Alternative to Source-Specific BART Determinations, 70 Fed. Reg. 44,154,

44,158 (Aug. 1, 2005). The EPA also sought comment on: (1) whether

§ 51.308(e)(3) provided the sole way to demonstrate greater reasonable

progress, or (2) whether qualitative factors could be considered. Id.

     In 2006, the EPA determined that § 51.308(e)(3) should not serve as

the only means to show “greater reasonable progress.” Thus, the EPA

amended § 51.308(e)(2)(i) to add “E,” which authorized use of the “clear

weight of evidence” standard as a way of showing that the alternative

                                     29
program was better than BART. Final Rule, Regional Haze Regulations;

Revisions to Provisions Governing Alternative to Source-Specific BART

Determinations, 71 Fed. Reg. 60,612, 60,622 (Oct. 13, 2006). Under

§ 51.308(e)(2)(i)(E), the better-than-BART analysis may be made “under

paragraph (e)(3) of this section or otherwise based on the clear weight of

evidence that the trading program or other alternative measure achieves

greater reasonable progress than would be achieved through the installation

and operation of BART at the covered sources.” 40 C.F.R.

§ 51.308(e)(2)(i)(E).

      Accordingly, the regulation establishes two ways that a state can

compare a 309 program to BART. The state can use the two quantitative

methods stated in § 51.308(e)(3) or apply a qualitative standard (the clear

weight of evidence). See 71 Fed. Reg. at 60,622 (“With respect to the use

of a ‘weight of evidence’ approach as an alternative to the methodology of

section 51.308(e)(3), we support the use of such a test as an alternative to

the methodology set forth in section 51.308(e)(3).”).

      The participants chose the qualitative standard, which was

permissible under the EPA’s interpretation of its regulations. See Fed.

Express Corp. v. Holowecki, 552 U.S. 389, 397 (2008) (“Just as we defer to

an agency’s reasonable interpretations of [its authorizing] statute when it

issues regulations in the first instance, . . . the agency is entitled to further



                                       30
deference when it adopts a reasonable interpretation of regulations it has

put in force.” (citation omitted)).

      ii.   Qualitative v. Quantitative Factors

      The environmental groups argue that even if § 51.308(e)(3) did not

furnish the exclusive methodology, the participants should not have relied

on qualitative factors because:

      (1)   the EPA sought comment on, but did not adopt, a “qualitative”
            means of evaluating whether an alternative program was better
            than BART, and

      (2)   when adding a “clear weight of the evidence” standard, the
            EPA identified only quantitative emissions and visibility data
            as appropriate for a better-than-BART determination.

      These arguments do not suggest arbitrariness or capriciousness by the

EPA. Both arguments depend on the environmental groups’ interpretation

of the EPA regulations. The EPA expressly concluded that a participant

could use the “clear weight of the evidence” standard. When using this

standard, however, the EPA sanctioned consideration of “all available

information.” 11 There was no prohibition against the consideration of

qualitative evidence.


11
     In its final rule adding the “clear weight of the evidence” standard as
one means of determining that an alternative program was better than
BART, the EPA clarified:
      “Weight of evidence” demonstrations attempt to make use of all
      available information and data which can inform a decision
      while recognizing the relative strengths and weaknesses of that
      information in arriving at the soundest decision possible.
                                      31
      It is true that the EPA provided examples that are quantitative. See

Final Rule, Regional Haze Regulations; Revisions to Provisions Governing

Alternative to Source-Specific BART Determinations, 71 Fed. Reg. 60,612,

60,622 (Oct. 13, 2006). But the EPA pointed out that these examples were

not exhaustive and that the determination should be based on “all available

information and data which can inform a decision while recognizing the

relative strengths and weaknesses of that information in arriving at the

soundest decision possible.” Id.

      Because this language supports the EPA’s interpretation of its

regulation, we do not regard the use of qualitative factors as arbitrary or



      Factors which can be used in a weight of evidence
      determination in this context may include, but not be limited to,
      future projected emissions levels under the program as
      compared to under BART, future projected visibility conditions
      under the two scenarios, the geographic distribution of sources
      likely to reduce or increase emissions under the program as
      compared to BART sources, monitoring data and emissions
      inventories, and sensitivity analyses of any models used. This
      array of information and other relevant data may be of
      sufficient quality to inform the comparison of visibility impacts
      between BART and the alternative program. In showing that an
      alternative program is better than BART and when there is
      confidence that the difference in visibility impacts between
      BART and the alternative scenarios are expected to be large
      enough, a weight of evidence comparison may be warranted in
      making the comparison. The EPA will carefully consider the
      evidence before us in evaluating any [state implementation
      plans] submitted by States employing such an approach.
Final Rule, Regional Haze Regulations; Revisions to Provisions Governing
Alternative to Source-Specific BART Determinations, 71 Fed. Reg. 60,612,
60,622 (Oct. 13, 2006) (emphases added).
                                      32
capricious. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 397

(2008).

      c.    The Qualitative Factors

      The EPA relied on four factors that could be considered

“qualitative”:

      (1)   The trading program included sources not subject to BART
            regulation;

      (2)   the trading program discouraged emissions from new sources
            more effectively than a BART regime would have done;

      (3)   the trading program included an aggregate cap on emissions,
            which would have decreased emissions more effectively than
            BART; and

      (4)   the trading program encouraged earlier reductions than under a
            BART regime.

Joint App. at 31-32. These considerations provided a reasonable basis for

the EPA’s approval of the 309 program.

      i.    Emission Reductions from Non-BART Sources

      In concluding that the 309 program would outperform BART, the

EPA relied in part on inclusion of “all sources with emissions greater than

100 tons/year of [sulfur dioxide].” See id. at 516. The threshold for

regulation under BART would have been much higher. See 40 C.F.R.

§ 51.301 (stating that sources are eligible for BART if they can emit 250

tons of sulfur dioxide per year, were built between 1962 and 1977, and fall

within one of the specified source categories).


                                      33
     The environmental groups criticize the EPA for considering potential

reductions in emissions involving non-BART sources. The groups argue

that rather than consider non-BART sources, the EPA should have confined

its analysis to BART-eligible sources.

     We disagree. The environmental groups are relying on regulatory

language applicable to the first step of the better-than-BART analysis (the

determination of the BART benchmark), not the comparison of BART to

the alternative program.

     Under 40 C.F.R. § 51.308(e)(2)(i), subsections “A” through “C”

outline the requirements to determine the BART benchmark, the first step

of the better-than-BART determination. 40 C.F.R. § 51.308(e)(2)(i)(A)-

(C). Subsection “D” addresses the second step: “[a]n analysis of the

projected emissions reductions achievable through the trading program or

other alternative measure.” Id. § 51.308(e)(2)(i)(D). And, as previously

discussed, subsection “E” states how one compares the relative successes

of the alternative program and BART, the third and final step in the better-

than-BART analysis. Id. § 51.308(e)(2)(i)(E) (requiring a comparison of

“the trading program or other alternative measure” with BART).

     Accordingly, the environmental groups are mistaken. The EPA could

reasonably read “D” and “E” to allow comparison of BART to the entirety

of the alternative program (including the non-BART-eligible sources).



                                     34
Thus, the EPA acted reasonably when it considered non-BART sources at

the second and third steps of the better-than-BART determination.

     ii.   Emission Reductions from New Sources

     The environmental groups also argue that the EPA incorrectly

considered emission reductions from new sources. New sources would not

be subject to BART because they would have been built after 1977. See id.

§ 51.301. The groups contend that new sources are already subject to

regulations that are more effective than a cap on emissions in the 309

program. We reject this contention.

     As the environmental groups state, new sources of emissions are

independently regulated by the Clean Air Act. 42 U.S.C. §§ 7411, 7475,

7503; see United States v. DTE Energy Co., 711 F.3d 643, 644-45 (6th Cir.

2013) (“New Source Review [under the Clean Air Act] forbids the

construction of new sources of air pollution without a permit.”). Thus,

even without the trading program, new sources would need to show that

they meet emission standards based on the “best available control

technology.” 42 U.S.C. § 7475(a)(4). But, the EPA could reasonably

conclude that the 309 program would go beyond the existing regulatory

process in reducing emissions from new sources.

     The environmental groups contend that a cap would prove

meaningless by allowing new sources to obtain allocations equaling the

maximum emissions already allowed. We disagree.

                                      35
      Under the new-source regulatory scheme, new-source emissions were

limited but not capped. The EPA set out to establish a cap through

approval of 309 programs. With caps, the EPA expected polluters to adopt

voluntary measures to reduce emissions. Joint App. at 431-32, 438. The

EPA coupled this strategy with regulation for new sources. Id. This two-

fold strategy for new sources had a reasonable foundation: The EPA hoped

to reduce emissions for new sources by regulating them and encouraging

voluntary reductions in emissions. Id. at 31-32.

      According to the environmental groups, the cap is ineffective

because it accommodated construction of all projected new electric

generating units proposed, which renders the “cap” on future sources no

better than the new-source regulatory scheme. Id. at 212, 432. Under the

309 program, however, the 2018 milestone continues as an emission cap

for sulfur dioxide until the participants obtain approval of revised

implementation plans. Accordingly, any post-2018 growth will be limited

unless a revised implementation mandates otherwise. In view of this

strategy by the EPA, its consideration of new sources was not arbitrary or

capricious.

      iii.    “Mass-Based Cap” on Sulfur-Dioxide Emissions

      The environmental groups also contend that:

      (1)     the EPA improperly relied on the purported benefits of a
              “mass-based cap” on sulfur-dioxide emissions,


                                      36
      (2)   the mass-based cap cannot outperform BART because the cap
            assumes that sources were operating at 85% capacity when
            many of those sources were actually operating at lower
            capacity,

      (3)   setting the assumption of capacity so high allows sources to
            actually increase emissions, and

      (4)   BART would reduce emission rates across all operations even
            when they are operating at less than full capacity.

The EPA disagreed and had a reasonable foundation for its disagreement.

Id. at 31-32.

      The Western Regional Air Partnership designed the mass-based cap

to allow for an increase in operating capacity at existing sources in light of

a projected increase in electrical needs. By setting the assumed capacity at

85%, designers of the program established room for sources to adapt to

future needs. The EPA approved the mass-based cap only after concluding

that a cumulative limit on emissions would be more effective than BART.

      It is true that a source’s presumptive capacity may be higher than the

actual capacity at any given time. But this possibility does not render the

EPA action arbitrary or capricious. The participants followed the concept

stated by the Western Regional Air Partnership, setting a cap based on

projected increases in electrical needs and accommodation of future

growth. Id. at 32. Based in part on the Air Partnership’s analysis, the

EPA determined that the 309 program would be better than a BART system

of regulation. Id. This determination was not arbitrary or capricious.


                                      37
     iv.     Early Emission Reductions

     In 1996, the Transport Commission recommended that the market

trading program “contain specific provisions to encourage and reward early

emission reductions, including reductions achieved before 2000.” Id. at

437 (internal quotation marks omitted). Following this recommendation,

the participants provided additional allocations to sources that reduce

emissions ahead of schedule.

     In its 2010 report, the Western Regional Air Partnership concluded

that participants in the trading program had decreased sulfur-dioxide

emissions:

     ●       25% between 1990 and 2000 in the nine states eligible to
             participate in the 309 program, and

     ●       an additional 31% between 2000 and 2008 in the participating
             states.

Id. at 438. The Western Regional Air Partnership attributed these

reductions to the 2003 implementation plans.

     The environmental groups question the connection between the early

reductions and the 309 program. But the EPA never attributed the early

reductions to the 309 program. Instead, the EPA simply said that it could

not discount the possibility of a causal relationship. For example, when

approving the 309 program, the EPA stated that it could not “discount that

the 2003 309 [state implementation plan] submittal may have already

influenced sources to upgrade their plants before any case-by-case BART

                                     38
determination under Section 308 may have required it.” Final Rule,

Approval and Promulgation of State Implementation Plans; Wyoming, 77

Fed. Reg. 73,926, 73,930 (Dec. 12, 2012).

      In oral argument, the EPA acknowledged that it was aware of the

early reductions, but did not explicitly attribute them to the 309 program.

Instead, the EPA argued that proof of a causal relationship was

unnecessary. Oral Arg. 31:45-35:29. We agree: The EPA was not

required to prove a causal relationship between the already-achieved

emission reductions and the decade-long progression of the 309 program.

Rather, in its better-than-BART determination of the 309 program, the EPA

had to predict whether the alternative program would yield greater

reductions than a fully-implemented BART regime. See 40 C.F.R.

§ 51.308(e)(2)(i).

      The existing reductions tended to support the soundness of a strategy

encouraging early reductions through the 309 program. The EPA had no

need to go further by proving actual causation between the strategy and the

early reductions. Thus, the EPA did not act arbitrarily or capriciously in

considering the early-reduction incentives.

      d.    Summary

      The approval of the participants’ better-than-BART determination

was not arbitrary or capricious, and we reject the criticism of the EPA’s



                                     39
reliance on qualitative factors and application of the “clear weight of the

evidence” standard.

      B.    “Critical Mass” of Participating States in 309 Program

      We must also address the soundness of the 309 program based on the

number of states and tribes refusing to participate. Six out of the nine

eligible states refused to participate, as did every one of the 211 eligible

tribes. Joint App. at 426, 652. The environmental groups argue that

without greater participation, the 309 program was doomed to fail. The

EPA acted reasonably in rejecting this argument.

      1.    Timeliness

      The EPA contends that this challenge was not raised in a timely

manner. For this contention, the EPA characterizes the challenge as an

attack on the Regional Haze Rule.

      We disagree with this characterization. The environmental groups

are not questioning the absence of a critical mass requirement in the

Regional Haze Rule. Instead, the groups are contending that the

participating states are too few to satisfy the statutory goal of reasonable

progress. The groups’ contention addresses the EPA’s approval, rather

than the validity of the Regional Haze Rule. This contention is timely.




                                      40
      2.    The Absence of a Statutory or Regulatory Requirement of
            Minimum Participation

      Though the argument is timely, it is invalid because neither the Clean

Air Act nor the EPA regulations require participation by a certain number

of states or tribes. See 40 C.F.R. § 51.309(a), (e).

      Without a statutory or regulatory requirement, the environmental

groups rely on the EPA’s proposed 2002 rulemaking. There the EPA

stated:

            The requirements in 40 CFR 51.309, if revised, will be
      the product of a substantial effort by many States, Tribes,
      Federal agencies, and other interested parties, extending over a
      number of years from the work of the [Grand Canyon Visibility
      Transport Commission] to that of the [Western Regional Air
      Partnership]. The EPA recognizes, however, that the States and
      Tribes do have the option of implementing the regional haze
      rule under 40 CFR 51.308 rather than 40 CFR 51.309. Because
      the objective of 40 CFR 51.309 is to provide a regional
      approach to protecting air quality at the 16 Class I areas on the
      Colorado Plateau, EPA believes that there must be a “critical
      mass” of States participating for 40 CFR 51.309 [state
      implementation plans] to be approvable.

Proposed Rule, Proposed Revisions to Regional Haze Rule to Incorporate

Sulfur Dioxide Milestones and Backstop Emissions Trading Program, 67

Fed. Reg. 30,418, 30,420 (May 6, 2002); see also Final Rule, Revisions to

Regional Haze Rule to Incorporate Sulfur Dioxide Milestones and

Backstop Emissions Trading Program, 68 Fed. Reg. 33,764, 33,770 (June

5, 2003) (“The EPA continues to believe, as discussed in the proposal, that




                                      41
judgments on the issue of ‘critical mass’ are best left to the [Western

Regional Air Partnership].”).

      Later in this proposed revision, however, the EPA indicated that it

would “defer to the [Western Regional Air Partnership’s] judgment on the

issue of ‘critical mass,’ and . . . request[ed] comment on this proposal.”

67 Fed. Reg. at 30,427. And the Western Regional Air Partnership did not

require participation by a minimum number of states or tribes. See Joint

App. at 174-267. 12 Accordingly, the EPA did not impose such a

requirement. See 77 Fed. Reg. at 24,769-70 (“Section 51.309 does not

require the participation of a certain number of States to validate its

effectiveness.”).

12
      Instead, the Air Partnership proposed further study on the number
and diversity of sources needed to make the program viable:

            The Annex has been developed based on the Grand
      Canyon Visibility Transport Commission recommendations,
      which assumed that all of the states and tribes in the transport
      region would participate in the program. The regional haze
      rule establishes two paths for states: implement the
      Commission recommendations, including the backstop trading
      program under §309; or develop an independent plan under
      §308. An important issue still to be addressed is the effect on
      the trading program if one or more states and tribes do not
      choose to participate. Will there be enough sources or enough
      diversity in the program to create a viable market? Will the
      administrative costs of the program be justifiable with a
      smaller group of states and tribes? To address these questions,
      the [Western Regional Air Partnership] needs to evaluate the
      economics of the program, and determine the critical mass that
      is needed to create a viable program.

Joint App. at 234.
                                      42
     3.    The Environmental Groups’ Arguments on the Soundness of
           the EPA’s Conclusion

     The environmental groups argue that not enough states are

participating to allow reasonable progress because:

     ●     the three states participating in the 309 program contribute
           only a small percentage of the sulfur dioxide in Utah’s Class I
           areas and the Colorado Plateau, and

     ●     sources in the three participating states could shift emissions to
           unregulated sources.

     The arguments do not render the EPA’s determination arbitrary or

capricious because states remain regulated under BART when they decline

to participate in the 309 program. With continued regulation under BART,

the EPA reasonably concluded that the 309 program could work effectively

even without participation from heavy polluters. Joint App. at 29-30.

     The environmental groups challenge the factual basis for this

conclusion because:

     ●     the 3 states generating the greatest emissions (Nevada,
           California, and Arizona) chose not to participate,

     ●     the 309 program excludes dozens of coal-fired power plants,

     ●     the 309 program encompasses only 15 coal-fired power plants,
           and

     ●     the participating states contribute only 36% of the sulfur-
           dioxide emissions over the Colorado Plateau.

     These factual arguments do not undermine the reasonableness of the

EPA’s prediction. Notwithstanding exclusion of many heavy polluters, the

EPA legitimately predicted that the 309 program would make “reasonable

                                     43
progress” toward improvement of visibility over the Colorado Plateau. Id.

The excluded sources would still be regulated, though not under the 309

program.

      The environmental groups counter that:

      ●     the exclusions prevent the 309 program from qualifying as a
            “regional” program, and

      ●     the existence of a regional program is necessary for the EPA to
            satisfy the statutory and regulatory purposes.

Pet’rs’ Reply Br. at 46-47 (citing 42 U.S.C. § 7492(c)). We disagree.

      Section 7492 states that “[w]henever . . . the current or projected

interstate transport of air pollutants from one or more States contributes

significantly to visibility impairment in class I areas located in the affected

States, the Administrator may establish a transport region for such

pollutants that includes such States.” 42 U.S.C. § 7492(c)(1) (emphasis

added). Accordingly, the statutory authorization of regional programs does

not require a minimum number of participating states. See id.

      The environmental groups also assert that exclusion of major coal-

fired power plants from the nonparticipating states would lead sources in

the three participating states to shift emissions to unregulated sources.

Pet’rs’ Opening Br. at 51. To illustrate this assertion, the environmental

groups refer to power plants owned by PacifiCorp. PacifiCorp could shift

emissions from power plants in Wyoming and Utah (states participating in

the 309 program) to power plants in Arizona and Colorado

                                      44
(nonparticipating states). This shift would allow PacifiCorp to comply

with the milestones established in the 309 program while increasing

emissions in the nonparticipating states. According to the environmental

groups, this shift would impede the overall reduction of emissions in the

region and could even worsen visibility.

     As support, the environmental groups cite the EPA’s statements in

the Clean Air Interstate Rule:

           Inclusion of all units substantially in the electricity sales
     business minimizes the potential for shifting utilization, and
     emissions, from regulated to unregulated units in that business
     and thereby freeing up allowances, with the result that total
     emissions from generation of electricity for sale exceed the
     [Clean Air Interstate Rule] emissions caps. The fact that units
     in the electricity sales business are generally interconnected
     through their access to the grid significantly increases the
     potential for utilization shifting.

Final Rule, Rule to Reduce Interstate Transport of Fine Particulate Matter

and Ozone (Clean Air Interstate Rule), 70 Fed. Reg. 25,162, 25,277 (May

12, 2005) (emphasis added). 13


13
      The D.C. Circuit Court of Appeals struck down the Clean Air
Interstate Rule, reasoning that it violated the statutory prohibition against
contribution of pollution in downwind states from sources within the
upwind states. North Carolina v. EPA, 531 F.3d 896, 908 (D.C. Cir.
2008); see North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008)
(en banc) (deciding to leave the Clean Air Interstate Rule in place until the
EPA could promulgate additional regulations). The D.C. Circuit Court of
Appeals reached this conclusion because the cap-and-trade program in the
Clean Air Interstate Rule would not “assure that upwind states will abate
their unlawful emissions as required by section 110(a)(2)(D)(i)(I).” North
Carolina, 531 F.3d at 906. Essentially, the D.C. Circuit Court of Appeals
agreed that upwind states participating in the regional trading program
                                     45
      The environmental groups overlook a vital distinction: Even when a

state does not participate in the 309 program, it must comply with

§ 51.308. Accordingly, approval was not arbitrary or capricious based on

the refusal of 6 states and 211 tribes to participate.

      4.    Inconsistency and a Lack of Explanation

      The environmental groups argue that the EPA changed its position

regarding the “critical mass” of participating states without sufficient

explanation. See Pet’rs’ Opening Br. at 53. We reject this argument.

      An unexplained deviation from past practice can render an agency’s

decision arbitrary and capricious, but inconsistency with past practice “is

not a basis for declining to analyze the agency’s interpretation[s].” Nat’l

Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981

(2005). “[I]f the agency adequately explains the reasons for a reversal of

policy, ‘change is not invalidating.’” Id. (quoting Smiley v. Citibank

(S.D.), N.A., 517 U.S. 735, 742 (1996)).

      The EPA never stated, one way or the other, whether a critical mass

of participating states was necessary for the success of a 309 program.

Instead, the EPA explicitly deferred to the judgment of the Western

Regional Air Partnership, which did not make a recommendation on


could trade emissions with other states to avoid the statutory duty to
reduce emissions. Id. Here, however, the environmental groups do not
assert that shifting of emissions between sources would allow the
participating states to avoid their statutory duties.
                                      46
whether to require a minimum number of states. See 67 Fed. Reg. at

30,427; Joint App. at 174-267. Because the EPA did not render an opinion

on the critical-mass requirement, its approval of the 309 program was not

arbitrary and capricious based on an alleged inconsistency with prior

policy.

      C.     Emissions from the Escalante Coal Plant in New Mexico’s
             Implementation Plan

      The environmental groups also challenge the EPA’s approval of New

Mexico’s implementation plan in areas beyond the Class I areas subject to

the 309 program. In this challenge, the groups argue that the EPA did not

account for emissions from the state’s second-largest non-BART coal

plant, the Escalante coal plant. 42 U.S.C. § 7491(b)(2)(B); 40 C.F.R.

§ 51.308(d)(1), (3). We reject this argument.

      1.     Background

      The environmental groups’ argument requires examination of the

regulatory and factual setting for New Mexico’s implementation plan.

      a.     Reasonable Progress Goals in § 51.308(d)(1)

      The regulations require states to establish reasonable progress goals

through deciviews that would: (1) improve visibility during the most

impaired days, and (2) ensure no degradation in visibility on the least

impaired days. 40 C.F.R. § 51.308(d)(1). The related analysis involves

two steps.


                                     47
      In the first step, states consider four factors:

      (1)    the cost of compliance;

      (2)    the time necessary for compliance;

      (3)    the energy and non-air quality environmental impacts of
             compliance; and

      (4)    the remaining useful life of any potentially affected
             sources.

Id. § 51.308(d)(1)(i)(A).

      In the second step, states determine the rate of required progress by

comparing the baseline visibility conditions to natural visibility conditions

that are expected by 2064. Id. § 51.308(d)(1)(i)(B). In this step, the state

considers:

      ●      what progress is needed to obtain natural visibility conditions
             by 2064, and

      ●      what would be needed for the duration of the implementation
             plan.

Id.

      If the state determines that it cannot reach the uniform rate of

progress, it must demonstrate that a slower rate of progress is reasonable

and that the greater rate of progress is unreasonable. Id.

§ 51.308(d)(1)(ii).

      b.     New Mexico’s Reasonable Progress Goals

      In its plan, New Mexico applied the four-factor analysis and

determined that the uniform rate of progress would not be reasonably


                                       48
achievable. Final Rule, Approval and Promulgation of State

Implementation Plans; New Mexico, 77 Fed. Reg. 70,693, 70,701-02 (Nov.

27, 2012). This determination required the state to demonstrate that its

slower rate of progress would be reasonable under the four-factor analysis

articulated in § 51.308(d)(1)(i)(A). New Mexico complied with this

requirement in part based on the Western Regional Air Partnership’s

analysis.

      At New Mexico’s request, the Western Regional Air Partnership

conducted an additional source-specific analysis of three petroleum

refineries in New Mexico. Joint App. at 411. New Mexico used this

source-specific analysis to argue that it could not achieve natural visibility

conditions by 2064. Id. at 564. To defend its less ambitious goal, New

Mexico pointed to natural causes of pollution (such as local wildfires) and

predicted improvement in visibility during the most impaired days and

preservation of existing visibility on the best days. Id. at 563-64.

      This reasoning prompted criticism. In response, New Mexico said it

would “examine and consider implementing additional emission reductions

in the [state implementation plan] analysis for 2013.” Id. at 508. As

promised, New Mexico analyzed emissions from additional power plants.

Id.




                                      49
        c.   The Escalante Coal Plant

        Though New Mexico expanded its analysis, it did not examine

emissions at the Escalante Coal Plant. That omission gives rise to the

present challenge.

        The Escalante Coal Plant is a 250-megawatt coal-fired power plant

outside of Albuquerque, New Mexico. The environmental groups allege

that the omission proves fatal because this plant “emits thousands of tons

per year of haze-causing nitrogen oxides and is located within 200 miles of

at least 5 of New Mexico’s Class I areas located outside of the Colorado

Plateau.” Pet’rs’ Opening Br. at 57. The EPA counters that the Escalante

plant’s emissions are far lower than the emissions from the only BART

source in New Mexico (the San Juan Generating Station). Resp.’s Br. at 54

n.13.

        2.   Waiver

        The EPA contends that the environmental groups did not exhaust this

allegation because they did not cite § 51.308(d)(1), (3) or urge the need for

analysis of the Escalante plant. Resp.’s Br. at 53-54. We disagree.

        In comments to the EPA, the environmental groups asserted:

              EPA’s proposal relies on the [Western Regional Air
        Partnership’s] general, non-source specific analysis of potential
        reasonable progress source categories. See, Docket EPA-R06-
        2009-0050-0014, Appendix E. The [Western Regional Air
        Partnership’s] general source category analysis fails to identify
        any specific New Mexico sources that may be subject to
        reasonable progress controls. Id. The [Western Regional Air

                                       50
     Partnership’s] general source analysis is also factually
     incorrect.      Table 6-1 of the [Western Regional Air
     Partnership’s] analysis indicates that there is no [particulate
     matter, sulfur dioxide, or nitrogen oxide] emissions from coal
     fired boilers in New Mexico. Id. at p. 340. To the contrary,
     coal fired boilers at SJGS, Escalante coal plant, Raton coal
     plant, and Four Corners all emit significant quantities of these
     criteria pollutants. Thus, reliance on the [Western Regional
     Air Partnership] general source report for approval of the New
     Mexico [state implementation plan] is arbitrary and capricious
     due to its factual inaccuracy.

Joint App. at 753.

     This comment put the EPA on notice of the current argument

regarding the Escalante plant. As the EPA points out, the environmental

groups did not argue that New Mexico was required to analyze the

Escalante plant. But the comment alerted the EPA to the issue. See S.

Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 891 (D.C. Cir. 2006)

(“[C]ommenters must be given some leeway in developing their argument

before this court, so long as the comment to the agency was adequate

notification of the general substance of the complaint.”). The commenter

was alleging a need to address emissions from all industrial sources in New

Mexico, including the Escalante plant.

     The groups’ failure to cite § 51.308(d)(1), (3) is not fatal. The

environmental groups discussed the reasonable progress goal, and this

discussion provided “‘adequate notification of the general substance of the

complaint.’” Natural Res. Def. Council v. EPA, 571 F.3d 1245, 1259 (D.C.

Cir. 2009) (quoting S. Coast Air Quality Mgmt. Dist., 472 F.3d at 891).

                                    51
      3.    Consideration of the Escalante Plant

      Citing 40 C.F.R. § 51.308(d)(3)(iv), the environmental groups

contend that New Mexico’s reasonable-progress analysis should have

included an analysis of the Escalante plant 14 instead of relying solely on:

(1) the Western Regional Air Partnership’s general, non-source specific

analysis of potential controls for eight source categories, which did not

include the Escalante plant, and (2) source-specific analyses for three New

Mexico petroleum refineries.

      The environmental groups contend that New Mexico had “to

undertake a ‘source-specific’ analysis to determine whether to require

measures, such as installation of new air pollution control technology, to

achieve the reasonable progress goals.” Pet’rs’ Opening Br. at 55. In

support, the groups cite § 51.308(d)(1)(i)(A), the subsection outlining the

four factors to be considered in the reasonable-progress analysis. See 40

14
       In their opening brief, the environmental groups make a source-
specific argument regarding the Escalante plant. See, e.g., Pet’rs’ Opening
Br. at 54 (“EPA’s approval of the New Mexico [state implementation plan]
also was arbitrary because New Mexico failed to evaluate whether
emissions reductions from the Escalante coal plant were necessary to
achieve reasonable progress.”). In their reply brief, however, the groups
attempt to expand their argument, stating that New Mexico failed to
properly consider all electric generating units (as a category) for non-309
program Class I areas. See, e.g., Pet’rs’ Reply Br. at 56. This source-
category argument was not raised in the environmental groups’ opening
brief; thus, we will not consider this argument. See Silverton Snowmobile
Club v. U.S. Forest Serv., 433 F.3d 772, 783 (10th Cir. 2006) (“[W]e have
held that ‘[t]he failure to raise an issue in an opening brief waives that
issue.’” (quoting Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1174
(10th Cir. 2005))).
                                      52
C.F.R. § 51.308(d)(1)(i)(A). As the EPA points out, however, this

subsection does not require a source-specific analysis.

     Rather, the “source-specific” language originates in

§ 51.308(e)(2)(i)(C), which discusses the better-than-BART analysis. See

40 C.F.R. § 51.308(e)(2)(i)(C). This subsection is distinct from the four

factors in § 51.308(d)(1) that govern the determination of reasonable

progress. Accordingly, we reject the environmental groups’ argument that

the EPA had to engage in a source-specific analysis for a reasonable-

progress determination. Nothing in the Regional Haze Rule or the Clean

Air Act required New Mexico to conduct a four-factor analysis of the

Escalante plant.

     Two parts of the Regional Haze Rule allowed New Mexico to rely on

the Western Regional Air Partnership’s four-factor analysis. First,

§ 51.308(d)(3)(iii) permits a state conducting a reasonable-progress

determination to “rely[] on technical analyses developed by the regional

planning organization.” 40 C.F.R. § 51.308(d)(3)(iii). Second, § 51.309

allows states to base determinations of reasonable progress “on

assessments conducted by the States and/or a regional planning body.” Id.

§ 51.309(g)(1). Under both subsections, New Mexico could base their

determination of reasonable progress on the Western Regional Air

Partnership’s assessments.



                                     53
      Neither the Clean Air Act nor the Regional Haze Rule requires

source-specific analysis in the determination of reasonable progress. Thus,

the EPA’s approval of New Mexico’s plan was not rendered arbitrary or

capricious based on the alleged failure to conduct a four-factor analysis of

the Escalante coal plant.

IV.   Conclusion

      The EPA did not act arbitrarily or capriciously when it approved the

participants’ implementation plans. Thus, we deny the petitions for

review.




                                     54
