CLEAN WATER ACTION; ENVIRONMENTAL INTEGRITY PROJECT; SIERRA CLUB; WATERKEEPER ALLIANCE, INCORPORATED; PENNENVIRONMENT, INCORPORATED; CHESAPEAKE CLIMATE ACTION NETWORK; PHYSICIANS FOR SOCIAL RESPONSIBILITY, CHESAPEAKE, INCORPORATED; PRAIRIE RIVERS NETWORK, Petitioners
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; ANDREW WHEELER, Acting Administrator, United States Environmental Protection Agency, Respondents
Petition for Review of an Order of the Environmental
Higginbotham, Jones, and Costa, Circuit Judges.
H. Jones, Circuit Judge:
notice-and-comment rulemaking, the Environmental Protection
Agency ("EPA") reviewed and decided to
revise the earliest compliance dates for new,
stringent BAT ("best available technology economically
achievable") effluent limitations and PSES
("pretreatment standards for existing source")
concerning two waste streams from steam electric power
generating point sources that had previously been promulgated
in a 2015 Rule.
specifically, the agency postponed for two years only the
earliest compliance dates mandated by the 2015 Rule for flue
gas desulfurization (FGD) wastewater and bottom ash transport
water, while (a) retaining the 2015 Rule's BAT
limitations and pretreatment standards for other waste
streams from such power plants, and (b) not altering either
the last date for compliance (December 2023) or, pending
reconsideration, the substantive limits required by the 2015
Rule for the two postponed stream modifications. A consortium
of environmental groups has challenged the postponement,
while EPA and the intervenor, Utility Water Act Group
("UWAG"),  defend the Postponement Rule. We conclude
that the EPA had statutory authority to pass this tailored
rule, the agency explained its decision adequately, its
decision was reasonable, and it was thus neither arbitrary
nor capricious. The petition for review is DENIED.
2015 Rule represented the culmination of ten years' work
by EPA to update steam electric power generating plant
standards for compliance with the Clean Water Act, 33 U.S.C.
§ 1251 et seq., that had been in place since
1982. In that Rule, the agency, among other things, defined
much more stringent BAT limits and pretreatment standards for
seven defined wastestreams. Recognizing that power plants
would need substantial lead time to plan, fund, and build
necessary new facilities, the agency mandated in the 2015
Rule an earliest compliance date of November 2018 and
delegated to permitting authorities the flexibility to
approve individual point source compliance as feasible over a
period extending until the end of 2023.
lawsuits challenging the 2015 Rule were soon filed in the
federal courts. The petitions were consolidated by the
Judicial Panel on Multidistrict Litigation and transferred to
this court. During these preliminaries, UWAG, later
supplemented by the Small Business Administration's
Office of Advocacy, submitted petitions asking EPA to
reconsider the entire 2015 Rule and suspend its approaching
deadlines. Among other things, these petitions raised
substantial questions, based on newly discovered information,
about the extraordinary costs of implementing the 2015 Rule
and the infeasibility of EPA's proposed technology as
applied to certain power plants. Taking these petitions
seriously, EPA's Administrator determined that it was
appropriate and in the public interest to reconsider the 2015
an initial stay, a formal rulemaking procedure ensued, the
notice of which generated thousands of written comments, and
the agency conducted a public hearing on July 31, 2017. In
the end, EPA decided to adhere to most aspects of the 2015
Rule. EPA left in place the legacy wastewater limitations,
which are BAT limitations that apply to each of the regulated
wastestreams beginning on the effective dates set out in the
2015 Rule; the new and more stringent limitations and
quantitative standards (i.e., the permissible amount
of discharges); and the latest compliance date for NPDES
permitting authorities to impose those
limitations. See generally, Postponement Rule,
82 Fed. Reg. at 43, 494. But the agency also decided it must
reconsider the 2015 Rule's regulations governing two
wastestreams (FGD wastewater and bottom ash transport water)
in light of "new information not contained in the record
for the 2015 Rule." Id. at 43, 496. As support
for reconsideration, EPA cited "the inherent discretion
the Agency has to reconsider past policy decisions consistent
with the CWA and other applicable law." Id.
EPA's expressed purpose for postponing the earliest
effective compliance dates for these wastestreams during
reconsideration was to "prevent the potentially needless
expenditure of resources during a rulemaking that may
ultimately change the 2015 Rule . . . ." Id.
The agency, however, specifically declined to forecast
whether, after reconsideration, it will substantially revise
the 2015 Rule.
standard of review here is deferential, focusing on whether
the agency action is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5
U.S.C. § 706(2)(A). "If the agency's reasons
and policy choices conform to minimal standards of
rationality, then its actions are reasonable and must be
upheld." Tex. Oil & Gas Ass'n v. EPA,
161 F.3d 923, 934 (5th Cir. 1998). The reviewing court may
not "substitute its judgment for that of the
agency." Citizens to Pres. Overton Park, Inc. v.
Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824 (1971).
must provide a reasoned explanation for its revisions and
follow the same process to revise a rule as it used to
promulgate it. See Perez v. Mortg. Bankers
Ass'n, 135 S.Ct. 1199, 1206 (2015). Even "a
decision based on an administrative record of less than ideal
clarity will be upheld if the agency's path may
reasonably be discerned." United States v.
Garner, 767 F.2d 104, 118 (5th Cir. 1985). This court,
however, "'may not supply a reasoned basis for the
agency's action that the agency itself has not
given.'" Motor Vehicle Mfrs. Ass'n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct.
2856, 2867 (quoting SEC v. Chenery Corp., 332 U.S.
194, 196 (1947)).
instance, EPA went out of its way to issue a narrow
reconsideration decision, leaving intact the bulk of the 2015
Rule, and to substantiate its course of action legally
through notice-and-comment rulemaking. According to the
Petitioners, that was not enough. Petitioners fault the EPA
for issuing the Postponement Rule without legal authority
because they argue it is an unauthorized stay or the
"functional equivalent" of a stay of the 2015 Rule;
for failing to consider mandatory statutory factors before
promulgating a revision; and ...