A Michigan state appeals court has upheld a state permit issued under the Clean Air Act (CAA) to the City of Holland, Michigan. Natural Res. Def. Council v. Mich. Dep’t of Envtl. Quality, No. 310036 (Mich. Ct. App. 3/21/13). The Natural Resources Defense Council (NRDC) asserted that the permit for replacement of a boiler at an existing power plant was not authorized by law because state regulators did not properly consider alternative fuels as part of their identification of the “best available control technology” (BACT) for the unit. NRDC asserted that the state was required to follow a top-down BACT-identification approach that the U.S. Environmental Protection Agency (EPA) has published. Under that approach, the potential control methods are listed according to which is most stringent, and the most stringent is considered BACT unless the permittee makes an appropriate demonstration to eliminate it from consideration.
The appellate court recognized that the state did not follow the “top-down” approach, but said that the CAA gives states broad authority in assessing BACT and that such determinations should not be overturned unless they are not based on a reasoned analysis. The court found the state’s analysis of alternative fuels to be adequate.