author: Opinion by Judge CLIFTON

text:
    Will LOOMIS, an individual, Plaintiff-Appellant v. Jessica CORNISH, PKA Jessie J., an individual; Universal Music Group, Inc., Delaware corporation Erroneously Sued As UMG Recordings, Inc.; Universal Republic Records, a division of UMG Recordings, Inc., Defendants-Appellees
    No. 13-57093
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 8, 2016—Pasadena, California
    Filed September 2, 2016

      Michael Gross (argued), Michael Gross Law Office, St. Louis, Missouri, for Plaintiff-Appellant.
    Jeffrey M. Movit (argued) and Christine Lepera, Mitchell Silberberg & Knupp LLP, New York, New York; Elaine K. Kim, Mitchell Silberberg & Knupp LLP, Los Angeles, California; for Defendants-Appellees.
    Before: RICHARD R. CLIFTON, and SANDRA S. IKUTA, Circuit Judges, and FREDERIC BLOCK, District Judge.

       The Honorable Frederic Block, United Stales District Judge for the Eastern District of New York, sitting by designation.

   OPINION

Opinion by Judge CLIFTON

Plaintiff Will Loomis is the composer of a song called “Bright Red Chords.” He brought this lawsuit alleging .that Defendant Jessica Cornish (publicly known as Jessie J) and a team of high-profile songwriters led by Lukasz Gottwald (publicly known as Dr. Luke) stole a two-measure vocal melody from Bright Red Chords and used it as the theme for the verse melody in their hit song “Domino.” The district court granted the Defendants’ motion for summary judgment, concluding that Loomis did not' put forth any potentially admissible evidence to establish that the Domino songwriters had access to Bright Red Chords. We affirm.

I. Background

Loomis composed and recorded Bright Red Chords with his band, Loomis and the Lust, in Santa Barbara, California, in 2008, and thereafter obtained a copyright registration for the song by depositing a copy with the U.S. Copyright Office. Loomis then released Bright Red Chords on a 2009 album, Nagasha, and a 2010 album, Space Camp. He also created a music video for the song.

Bright Red Chords was Nagasha’s feature track and it garnered some attention in 2009 and 2010. For example, the Bright Red Chords video won the MTVU “Best Freshman” video award and was featured in Billboard Magazine. In addition, there was evidence presented that Bright Red Chords was distributed by Urban Outfitters as part of a corporate sampler CD and was played in a variety of name-brand clothing stores. MTV selected Loomis and the Lust as one of its best new bands of 2010, and the band won an industry-sponsored “Artist on the Verge” award, which included a $25,000 prize.

Despite these achievements, Bright Red Chords was not commercially successful. Although the band hired a radio promotions company to promote the song on a variety of radio stations and a video promotions company to disseminate the music video through multiple media platforms, Bright Red Chords did not achieve an appreciable level of national saturation. Loomis was able to provide to the district court documentation of only 46 sales of the recording.

Domino was written in June of 2011 by a five-person songwriting team. Dr. Luke and his collaborator Henry Walter created the instrumental track that became the musical bed for the song. The melody and lyrics were added in a later session at Conway Studios in Los Angeles. Jessie J created the melody in collaboration with Dr. Luke and Claude Kelly. Karl Martin Sandberg (publicly known as Max Martin) also participated in this session, and he and Dr. Luke provided additional creative contributions to the song. Defendant Universal Republic Records released Domino, and it achieved substantial commercial success.

After hearing Domino, Loomis brought suit against Jessie J and her record label alleging copyright infringement. The district court granted summary judgment in favor of the Defendants. This appeal followed.

II. Discussion

We review a grant of summary judgment de novo. Mitchell v. Washington, 818 F.3d 436, 441 (9th Cir. 2016). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether “there are any genuine issues of material fact' and whether the district court correctly applied the relevant substantive law.” Id. (quoting Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc)).

To establish copyright infringement, a plaintiff must prove two elements: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). Copyright ownership by Loomis is not in dispute in this case. The only issue is whether a reasonable jury could conclude that the Domino songwriters copied protectable elements of Bright Red Chords.

“Proof of copyright infringement is often highly circumstantial, particularly in cases involving music.” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). “Absent direct evidence of copying, proof of infringement involves fact-based showings that the defendant had ‘access’ to the plaintiffs work and that the two works are ‘substantially similar.’ ” Id. (quoting Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996)); see also Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1076 (9th Cir. 2006). In this case there was no direct evidence of copying. The summary judgment entered by the district court relied entirely on the issue of access. Specifically, the district court concluded that Loomis failed to present sufficient evidence to support a finding that Defendants had access to Loomis’s work. Although Defendants also disputed the claim that .the works were substantially similar, the district court’s order did not address that issue.

Proof of access requires “an opportunity to view or to copy plaintiffs work.” Sid and Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1172 (9th Cir. 1977), superseded on other grounds by 17 U.S.C. § 504(b). “To prove access, a plaintiff must show a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work.” Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138, 1143 (9th Cir. 2009). “Where there is no direct evidence of access, circumstantial evidence can be used to prove access either by (1) establishing a chain of events linking the plaintiffs work and the defendant’s access, or (2) showing that the plaintiffs work has been widely disseminated.” Id.

Loomis relies on both theories to challenge the summary judgment. His chain of events theory is that multiple intermediaries could have provided a copy of Bright Red Chords to the Domino songwriters. His widespread dissemination theory is that Bright Red Chords had saturated the market in Santa Barbara so thoroughly that the presence of certain Domino songwriters at a recording studio in Santa Barbara during the period of saturation created a reasonable possibility of access. We take up each in turn.

A. Access Through Intermediaries

“[E]vidence that a third party with whom both the plaintiff and defendant were dealing had possession of plaintiffs work is sufficient to establish access by the defendant.” 4 Meville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.02[A] (2015); Kamar Int’l, Inc. v. Russ Berrie & Co., 657 F.2d 1059, 1062 (9th Cir. 1981). “[T]he dealings between the plaintiff and the intermediary and between the intermediary and the alleged copier must involve some overlap in subject matter to permit an inference of access.” Meta-Film Assocs., Inc. v. MCA, Inc, 586 F.Supp. 1346, 1358 (C.D. Cal. 1984); id. at 1355-58 (citing cases where the intermediary “either was a supervisor with responsibility for the defendant’s project, was part of the same work unit as the copier, or contributed creative ideas or material to the defendant’s work,” id. at 1355-56). For example, in Kamar, we held that access was established by the fact that the defendant purchased stuffed animals from a manufacturer that had previously made stuffed animals for the plaintiff based on the plaintiffs copyrighted designs. 657 F.2d at 1060-62; see also De Acosta v. Brown, 146 F.2d 408, 410 (2d Cir. 1944) (sufficient evidence of access where plaintiff submitted her work to a literary agent who thereafter was consulted by the defendant for input on the infringing work).

By contrast, multiple courts have held that a plaintiff “cannot create a triable issue of access merely by showing ‘bare corporate receipt’ of her work by an individual who shares a common employer with the alleged copier.” Bernal v. Paradigm Talent & Literary Agency, 788 F.Supp.2d 1043, 1056 (C.D. Cal. 2010); see, e.g., Jorgensen v. Epic/Sony Records, 351 F.3d 46, 48 (2d Cir. 2003). “Rather, it must be reasonably possible that the paths of the infringer and the infringed work crossed.” Towler v. Sayles, 76 F.3d 579, 582-83 (4th Cir. 1996) (requiring a “close relationship” for the corporate receipt doctrine to apply); see also Jones v. Blige, 558 F.3d 485, 491-92 (6th Cir. 2009) (affirming summary judgment for the defendant where plaintiff submitted her work to a senior vice president at Universal because there was no evidence that the vice president had any contact with anyone involved in the creation of the allegedly infringing work).

Loomis identified several potential intermediaries through whom he alleged Defendants might have gotten access to his song.

Sunny Elle Lee worked for UMG Recordings as an Artists and Repertoire Representative. In May of 2010, Lee emailed Loomis’s mother, Kristin Loomis, who acted as administrative coordinator for the band, to request a copy of Bright Red Chords. The band furnished Lee a copy of the song. Loomis argues that this chain of events created a triable issue of access because Lee’s responsibility as an A&R representative was to “find” and “share” music. Loomis posits that because Lee was successful in her job and received a promotion, a reasonable juror could extrapolate that she provided Bright Red Chords to the Domino songwriters. He further argues that Lee’s solicitation of Bright Red Chords makes this case distinguishable from the “bare corporate receipt” cases.

We disagree. On the record before us, there is no evidence of a nexus between Lee and the Domino songwriters that would be sufficient to raise a triable issue of access. See Jorgensen, 351 F.3d at 53 (“Bare corporate receipt ..., without any allegation of a nexus between the recipients and the alleged infringers, is insufficient to raise a triable issue of access.”). In fact, the evidence shows the opposite. Loomis did not dispute Defendants’ statement that “[t]he five Domino Writers do not know, have never met, and have never received anything from Sunny Elle Lee.” He also did not dispute that “Lee was not part of the work unit that created Domino.” There was no evidence presented beyond mere speculation from Loomis himself to show that Lee had any role or input on any of Jessie J’s music or recordings. Therefore, it is not “reasonably possible that the paths of the infringer and the infringed work crossed.” Towler, 76 F.3d at 582.

Casey Hooper played lead guitar for Loomis and the Lust from September of 2009 to April of 2010. Hooper did not perform on the recording of Bright Red Chords, but he did perform the song live on MTV and at various shows. He left the band in April of 2010 to join Katy Perry’s band.

Loomis argues that Hooper could have provided the Domino songwriters with access to Bright Red .Chords in two ways. First, Loomis asserts that Hooper worked with Dr. Luke and Max Martin in early 2010 on a ten-day recording session for Katy Perry’s album Teenage Dream. Loomis did not testify that he had personal knowledge of Hooper’s involvement in the project. Rather, he claimed that Tucker Bodine, an owner of the studio and an assistant engineer on Teenage Dream, told him that Hooper was involved in the project.

Loomis’s argument fails because he did not submit any potentially admissible evidence that would show that Hooper was involved in the Teenage Dream sessions. See Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”). The only evidence that Loomis provided was his hearsay report of alleged statements by Bodine. See Kim v. United States, 121 F.3d 1269, 1276-77 (9th Cir. 1997) (“Because the affidavit was not based on personal knowledge and because it relied on inadmissible hearsay testimony, the district court properly rejected it.”). That is not enough to survive summary judgment.

Loomis’s second argument is that a triable issue of access was established by evidence that Hooper was involved in Katy Perry’s movie “Part of Me.” Loomis testified that the packaging from the film shows that Hooper appeared as a cast member and that he received songwriting credits on two tracks. He further testified that Dr. Luke and Max Martin are listed as co-producers of the movie. This theory is deficient because there is no evidence detailing the responsibilities of Hooper, Dr. Luke, or Max Martin with respect to the film, let alone evidence that demonstrated 'that they actually worked together and were in personal contact. Nothing in the record shows the requisite nexus between Hooper and the Domino songwriters except for Loomis’s own speculation. “[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment.” Nelson v. Pima Community College, 83 F.3d 1075, 1081-82 (9th Cir. 1996).

Loomis also argues that Sean Walsh, Bonnie McKee, Sam Hollander, and Tucker Bodine could have served as conduits between Bright Red Chords and the Domino songwriters. But Loomis did not raise these arguments before the district court in his opposition to summary judgment, so they were waived. See Alaska Airlines, Inc. v. United Airlines, Inc., 948 F.2d 536, 546 n. 15 (9th Cir. 1991) (“It is well established that an appellate court will not reverse a district court on the basis of a theory that was not raised below.”). Loomis conceded, in any event, that he did not have any admissible evidence to support these access theories.

B. Widespread Dissemination

A copyright plaintiff, alternatively, may establish a reasonable possibility of access by “showing that the plaintiffs work has been widely disseminated.” Art Attacks Ink, 581 F.3d at 1143. “The evidence required to show widespread dissemination will vary from case to case.” L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 847 (9th Cir. 2012). In most cases, the evidence of widespread dissemination centers on the degree of a work’s commercial success and on its distribution through radio, television, and other relevant mediums. See, e.g., Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1178 (9th Cir. 2003); Art Attacks Ink, 581 F.3d at 1144-45; Three Boys Music, 212 F.3d at 483.

We have also recognized a doctrinal variant that focuses on saturation in a relevant market in which both the plaintiff and the defendant participate. In L.A. Printex, we held that a triable issue of access existed where (1) the plaintiffs fabric design had saturated the fabric market for apparel vendors in Los Angeles over a four-year period, and (2) the defendant routinely participated in the Los Angeles fabric market during that period. 676 F.3d at 848. This, we held, created “a ‘reasonable possibility’ that Defendants had an opportunity to view and copy L.A. Printex’s design.” Id.; see also Peel & Co., Inc. v. Rug Market, 238 F.3d 391, 397 (5th Cir. 2001) (holding that plaintiff raised a triable issue of access as to whether its rug design “was widely disseminated among those involved in the United States rug trade”).

Loomis submits that this case is similar. He argues that Domino songwriters Dr. Luke and Max Martin were in Santa Barbara for the Teenage Dream sessions at a time when Santa Barbara was saturated with Bright Red Chords. Loomis testified that the band was receiving “tons of airplay” on local radio stations at that time, and that Mix Magazine, Billboard, and the Santa Barbara Independent newspaper had carried stories about the band’s achievements. Loomis also testified that he had deposited promotional copies of Bright Red Chords at Playback Studios in the weeks leading up to the Teenage Dream sessions, and that the studio kept copies of Mix Magazine and the Santa Barbara Independent in the break room.

The fact that Dr. Luke and Max Martin spent ten days recording an album for a major national recording artist in Santa Barbara during a period when the local music scene was saturated with Bright Red Chords does not raise a triable issue of access. Unlike the defendants in L.A. Printex, Dr. Luke and Max Martin were not participating in the relevant market — the Santa Barbara local music scene — during their brief stay in Santa Barbara. Their production responsibilities had nothing to do with listening to local radio, reading local press, or scouting local bands, and there was no evidence that they undertook any other activity in that market that created a reasonable possibility of access to Bright Red Chords. Although there was a bare possibility that they heard Bright Red Chords on the radio, or that they read about Loomis and the Lust in a magazine in the break room of Playback Studios, or that they picked up one of Loomis’s promotional CDs while at Playback, that is not enough to raise a triable issue of access. See, e.g., Nimmer, supra at § 13.02[A] (explaining that “evidence showing that Gloria Estefan was present in a room with 15,000 records, including one containing plaintiffs song” was insufficient to demonstrate access (discussing Palmieri v. Estefan, 35 U.S.P.Q.2d 1382, 1383 (S.D.N.Y. 1995))).

III. Conclusion

Plaintiffs arguments in this ease tell a story that, if adequately substantiated, might have survived summary judgment. The problem is that it was not supported by potentially admissible evidence. At bottom, the record consists primarily of Loomis’s speculations of access unsupported by personal knowledge. The other evidence did not fill the breach. The district court did not err in granting summary judgment.

AFFIRMED.

      . "Absent evidence of access, a ‘striking similarity’ between the works may give rise to a permissible inference of copying.” Baxter v. MCA., Inc., 812 F.2d 421, 423 (9th Cir. 1987). The district court noted that Loomis had not presented any evidence or argument regarding striking similarly, and Loomis has not advanced that theory on appeal.

      . We do not have the packaging from Part of Me in the appellate record, but the Internet Movie Database indicates that at least 59 individuals appeared in the movie, that at least 34 individuals received production credit, and that many others worked on the project. See http://www.imdb.com/title/tt2215719/ fullcredits?re£_=tt_cLsm#cast (last checked August 25, 2016).

      . In his reply brief, Loomis argued that evidence of Bright Red Chords's dissemination in retail chains and evidence of its multimedia publicity campaign raised a triable issue of access. Loomis waived this argument by failing to make it in his opening brief. See Cruz v. Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012). Even if it were otherwise, Loomis’s argument is belied by the fact that he was only able to document 46 sales of Bright Red Chords. See Rice, 330 F.3d at 1178 (holding that because the plaintiffs video "only sold approximately 17,000 copies between 1986 and 1999,” it could not be considered “widely disseminated” despite some evidence of national publicity).


source: Caselaw Access Project

author: TALLMAN, Circuit Judge:

license: Public Domain

text:
    HELPING HAND TOOLS; Rob Simpson, Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; Gina McCarthy, in her capacity as Administrator of the U.S. Environmental Protection Agency; Deborah Jordan, in her capacity as Director of the Air Division of U.S. Environmental Protection Agency Region IX, Respondents, Sierra Pacific Industries, Inc., Respondent-Intervenor. Center For Biological Diversity, Petitioner, v. U.S. Environmental Protection Agency; Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency; Jared Blumenfeld, in his official capacity as Regional Administrator of Region 9 of the United States Environmental Protection Agency; Deborah Jordan, in her official capacity as Director of the Air Division of Region 9 of the United States Environmental Protection Agency, Respondents, Sierra Pacific Industries, Inc., Respondent-Intervenor.
    No. 14-72553, No. 14-72602
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 19, 2016 San Francisco, California
    Filed September 2, 2016

      Kevin P. Bundy (argued), San Francisco, California; Brendan R. Cummings, Joshua Tree, California; as and for Petitioner Center for Biological Diversity.
    Andrew S. Kingdale (argued), Law Office of Andrew S. Kingdale, San Francisco, California, for Petitioners Helping Hand Tools and Robert Simpson.
    Dustin J. Maghamfar (argued); John C. Cruden, Assistant Attorney General; Environmental Defense Section, Environment & Natural Resources Division, Washington, D.C.; Brian Doster and Mark Katao-ka, United States EPA, Office of General Counsel, Washington, D.C.; Kara Christen-son, United States EPA, Region IX, Office of Regional Counsel, San Francisco, California; for Respondents.
    Joseph R. Palmore (argued) and Marc A. Hearron, Morrison & Foerster LLP, Washington, D.C.; William M. Sloan, Morrison & Foerster LLP, San Francisco, California; for RespondenNIntervenor.
    Roger R. Martella, Jr., Joel F. Visser, and James R. Wedeking, Sidley Austin LLP, Washington, D.C., for Amici Curiae American Wood Counsel and National Alliance of Forest Owners.
    Before: SUSAN P. GRABER and RICHARD C. TALLMAN, Circuit Judges, and NANCY G. EDMUNDS, Senior District Judge.

       The Honorable Nancy G. Edmunds, Senior United States District Judge for the Eastern District of Michigan, sitting by designation.

   OPINION

TALLMAN, Circuit Judge:

Helping Hand Tools (“Helping Hand”) and Center for Biological Diversity (“Center”) petition for review of a final decision of the United States Environmental Protection Agency (“EPA”) granting Sierra Pacific Industries (“Sierra Pacific”) a prevention of significant deterioration (“PSD”) permit for construction of a new biomass-burning power plant at its lumber mill in California. Plaintiffs contend that EPA issued the PSD permit in violation of the Clean Air Act, 42 U.S.C. §§ 7401-7671q. This is the first time we have reviewed EPA’s doctrine of “redefining the source.” It also appears to be the first time that EPA’s framework for evaluating the best available control technology for greenhouse gas emissions from facilities burning biomass fuels is considered by any circuit in the United States. We hold that EPA did not act arbitrarily or cápriciously in granting a PSD permit to Sierra Pacific pursuant to that framework.

I

Sierra Pacific owns and operates a lumber manufacturing facility in Anderson, California, situated at the northern end of the Central Valley in Shasta County. On March 29, 2010, Sierra Pacific filed an application for a PSD permit with EPA in order to construct a new cogeneration unit at its mill. The new unit was designed to burn biomass fuels in a boiler to produce steam used to turn turbine blades to generate 31 megawatts of electricity and to heat existing lumber dry kilns. Fuel for the unit would come primarily from wood wastes from Sierra Pacific’s own lumber mills, as well as other readily available sources of agricultural and urban wood wastes. The new boiler replaces a smaller existing boiler at the Anderson Facility. The smaller boiler could burn only 60,000 bone-dry tons (“BDT”) of the 160,000 BDT of wood waste the Anderson Facility annually produces. The new boiler has the increased capacity to burn up to 219,000 BDT of wood waste. Additionally, the boiler will utilize natural gas for the limited purpose of startup, shutdown, and flame stabilization.

To understand the process by which Sierra Pacific sought approval by EPA to build the new boiler and the resulting litigation that ensued first requires an examination of the statutory and regulatory framework underlying the permitting process and then an examination of how EPA employed that process with Sierra Pacific’s particular permit application.

A

The Clean Air Act establishes a comprehensive program for controlling and improving air quality. As part of this program, 42 U.S.C. §§ 7470-7479 require new and modified major emitting facilities, like Sierra Pacific’s new boiler, to seek a PSD permit prior to construction. Id. § 7475(a). These permits are required in geographical regions designated to meet particular national ambient air quality standards. Id. § 7471. Critically, in order to obtain a PSD permit, the applicant must demonstrate that the proposed facility utilizes the best available control technology (“BACT”) for every pollutant subject to regulation by the Clean Air Act. Id. § 7475(a)(4). BACT is defined as

an emission limitation based on the maximum degree of reduction of each pollutant subject to regulation ... from any major emitting facility, which [EPA], on a case-by-case basis, ... determines is achievable for such facility through application of production processes and available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for control of each such pollutant.

Id. § 7479(3). In every case-by-case analysis, EPA will consider “energy, environmental, and economic impacts and other costs.” Id.

In 1990, in the absence of any clear guidance from Congress on how to evaluate BACT for a particular pollutant, EPA developed a five-step, “top-down” approach. See Environmental Protection Agency, New Source Review Workshop Manual, Chapter B (1990) (hereinafter “NSR Manual”). PSD permit applicants must engage in this analysis for every regulated pollutant with a significant emissions increase. Id. at B.4.

Briefly, the top-down analysis begins at Step 1 when the applicant lists all available control technologies. Id. at B.5. Control technologies are those technologies that have “a practical potential for application to the emissions unit and the regulated pollutant under evaluation.” Id. This list is meant to be comprehensive and include all options applicable to the particular pollutant even though the option may be eliminated in later steps. Id. at B.5-7. At Step 2, the applicant eliminates any technically infeasible options and must clearly document why the particular control option cannot be used. Id. at B.7. At Step 3, the applicant ranks the remaining control options against each other in order of overall effectiveness. Id. at B.7-8. Then, based on this ranking, at Step 4, the applicant evaluates each control option to consider the energy, environmental, and economic impacts. Id. at B.8. If the top candidate is unfavorable for any of these reasons then the applicant evaluates the impacts of the next available control option. Id. at B.8-9. The most effective control option that is not eliminated at Step 4 is then chosen as BACT at step 5. Id. at B.9.

EPA supplemented the top-down approach as it applied to greenhouse gases in March 2011 when it issued new guidance. See Environmental Protection Agency, PSD and Title V Permitting Guidance for Greenhouse Gases (2011) (hereinafter “GHG Permitting Guidance”). At the same time, EPA issued more specific BACT guidance for carbon dioxide emissions from facilities that use biomass as a primary fuel source. See Environmental Protection Agency, Guidance for Determining Best Available Control Technology for Reducing Carbon Dioxide Emissions from Bioenergy Production (2011) (hereinafter “Bioenergy BACT Guidance”). The Bioenergy BACT Guidance describes how each step of the five-step BACT analysis should be approached when a facility proposes to use mostly biomass as a fuel. Id. at 10-11. It does not supersede prior guidance, id. at 4, and agencies must still consider each PSD application on a case-by-case basis, id. at 5. ■

EPA promulgated a more particular BACT framework because carbon dioxide emissions from biomass fuels participate in the carbon cycle differently than other fuels, and biomass fuel stocks replenish more quickly than fossil fuel stocks. Id. at 6. Trees are a classic example of this phenomenon in nature. The short regenerative time means that new growing plant matter, biomass carbon stocks, can absorb excess carbon dioxide from the atmosphere more quickly than fossil fuel carbon stocks. Id. Additionally, photosynthesis from a well-managed biomass carbon stock, such as a well-managed forest, can act as a carbon sink, thereby decreasing the net carbon dioxide released from burning biomass as fuels. Id. “Biogenic [carbon dioxide] emissions are distinct from other regulated pollutants at bioenergy facilities because, unlike other pollutants and other [greenhouse gases], [carbon dioxide] emissions can participate directly in the global carbon cycle through photosynthesis.” Id. at 7. Therefore, EPA modified the steps of the traditional BACT analysis in particular ways to account for the unique properties of biomass.

Of particular relevance, at Step 1, EPA notes that “it will be important to address the extent to which the BACT analysis for [greenhouse gases] should include” an evaluation of other fuel types. Id. at 15. However, if utilization of biomass is the primary purpose of the project, then the agency can rely on that purpose to determine that another fuel would redefine the project. Id. If a facility relies primarily on biomass as fuel, the options at Step 1 “may be limited to (1) utilization of biomass fuel alone, (2) energy efficiency improvements, and (3) carbon capture and sequestration.” Id.

Skipping to Step 4, the Bioenergy BACT Guidance notes that the traditional Step 4 analysis is “an environmental, economic, and energy impacts analysis that includes both direct and indirect (i.e., collateral) considerations.” Id. at 18. EPA emphasizes that indirect environmental impacts and benefits are better suited to analysis in Step 4, id. at 21, and burning different biomass fuel stocks will not have a differential impact on emissions at the facility but at the forest or region where the biomass fuel is taken, id. at 22.

In holding that facilities like Sierra Pacific’s were subject to PSD permit requirements for greenhouse gas emissions, the Supreme Court expressly refrained from deciding whether to approve or endorse EPA’s current approach for determining BACT for greenhouse gases. Util. Air Regulatory Grp. v. EPA, — U.S. —, 134 S.Ct. 2427, 2449, 189 L.Ed.2d 372 (2014). To our knowledge, no other court has evaluated EPA’s approach. We examine it here as it was used to grant Sierra Pacific its PSD permit.

B

EPA’s consideration of Sierra Pacific’s permit application took place in two phases. During the first phase in September 2012, EPA proposed to issue a PSD permit to Sierra Pacific that required the use of add-on control technologies and inherently lower-emitting controls as BACT for the pollutants analyzed. EPA did not consider BACT for greenhouse gases because it was not then required. EPA accepted Sierra Pacific’s cap on natural gas use of no more than 10% of the total fuel required, because it was to be used only for limited purposes during startup, shutdown, and flame stabilization.

After public comment, EPA issued the PSD permit, and Helping Hand petitioned the Environmental Appeals Board (“the Board”) for review. On July 18, 2013, the Board remanded the PSD permit to EPA for further proceedings on a single ground — that EPA had abused its diseretion in not holding a public hearing. The Board held that EPA did not abuse its discretion in approving the permit on all other issues, two of which are relevant to the current petition before us.

First, the Board held that EPA did not abuse its discretion by declining to consider the inclusion of solar power as a fuel source or a greater percentage of natural gas because, it would impermissi-bly redefine the source. In making this determination, the Board reviewed the administrative record and determined that the primary purpose of the project was to allow Sierra Pacific “to put to use the hundreds of thousands of bone-dry tons of wood waste the company has in the Shasta County region, for the production of lumber and electricity.” The Board then held that “requiring [Sierra Pacific] to burn fewer tons of wood waste so that it could generate solar power or burn more natural gas instead would plainly disrupt the project’s ‘basic business purpose’ of using as much surplus biomass as possible” to get rid of the byproduct and to generate steam to dry lumber in kilns and produce electricity for use on site and for sale to the electrical grid.

Second, the Board held that EPA did not abuse its discretion in limiting the mix of fuel to 90% biomass and 10% natural gas. The Board held that Sierra Pacific’s prudent use of natural gas for startup, shutdown, and flame stabilization was a valid reason to limit the quantity of natural gas used and “not evidence of a project design ‘derived for reasons of air quality permitting.’ ”

The second phase of consideration occurred when, just a few days before the Board’s decision, the District of Columbia Circuit Vacated EPA’s rule deferring BACT determinations for greenhouse gases emitted from facilities like Sierra Pacific’s boiler. See Ctr. for Biological Diversity v. EPA, 722 F.3d 401, 412 (D.C. Cir. 2013). As a result, EPA conducted a supplemental BACT analysis on Sierra Pacific’s new biomass facility. EPA considered public comments on the supplemental analysis, and the Center contended that EPA could not consider the burning of biomass fuel alone as a control option at Step 1 and should have directly compared the environmental impacts of different biomass fuel stocks at Step 1.

EPA nonetheless issued a final PSD permit notice on April 25, 2014. The Center appealed to the Board and the Board dismissed for lack of jurisdiction because, in its July 2013 decision, the Board specifically stated that, pursuant to 40 C.F.R. § 124.19(l)(2)(iii), it would not require or accept an appeal after the remand. Helping Hand and the Center then filed the petitions for review now before us. Because all available administrative remedies have been exhausted, we have jurisdiction under 42 U.S.C. § 7607(b)(1).

II

EPA’s decision is reviewed under the Administrative Procedure Act and may be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 496-97, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004). EPA must “articulate[ ] a rational connection between the facts found and the choice made.” Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir. 2003) (alteration in original) (quoting Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001)).

“[W]e do not simply review whether it was arbitrary or capricious” for the Board to reject a petitioner’s claims that EPA clearly erred. Citizens for Clean Air v. EPA, 959 F.2d 839, 845-46 (9th Cir. 1992). “Rather, we conduct a deferential review of the entire agency action,” including whether approval of the PSD permit is based on a clearly erroneous finding of fact or conclusion of law. Id. at 846.

III

First, we address the claims raised by Helping Hand that EPA was required to consider solar power and a greater natural gas mix as clean fuel control technologies in the BACT analysis. This is an issue of first impression in our circuit, but our opinion is guided by well-reasoned decisions of the Board and the Seventh Circuit. Because EPA properly took the requisite hard look at Sierra Pacific’s proposed design and the key purpose of burning its own biomass waste, we hold that EPA reasonably concluded that consideration of solar or increased natural gas would disrupt that purpose and redefine the source.

A

Though failure to consider all available control alternatives in a BACT analysis constitutes clear error, EPA does not have to consider control alternatives that would “redefine the source.” See, e.g., In re Desert Rock Energy Co., 14 E.A.D. 484, 526 (E.A.B. 2009); see also NSR Manual-at B.13. In essence, a control alternative redefines the source if it requires a complete redesign of the facility. In a classic and simple example, a coal-burning power plant need not consider a nuclear fuel option as a “cleaner” fuel because it would require a complete redesign of the coal-burning power-plant. See Sierra Club v. EPA, 499 F.3d 653, 655 (7th Cir. 2007). Considering control technologies is rarely so simple, however, and EPA engages in a two-step process to determine whether a control technology will redefine the source.

First, “the permit applicant initiates the process and ... defines the proposed facility’s end, object, aim or purpose — that is the facility’s basic design.” In re Prairie State Generating Co., 13 E.A.D. 1, 22 (E.A.B. 2006), aff'd sub nom Sierra Club, 499 F.3d 653; accord Desert Rock, 14 E.A.D. at 530; In re N. Mich. Univ. Ripley Heating Plant, 14 E.A.D. 283, 301-02 (E.A.B. 2009) (hereinafter “NMU”). The purpose must be “objectively discernable.” Prairie State, 13 E.A.D. at 22. Additionally, the applicant’s proposed definition “must be for reasons independent of air permitting” and cannot be motivated by cost savings or avoidance of risks. Id. at 23 n.23; see also Desert Rock, 14 E.A.D. at 530; NMU, 14 E.A.D. at 302 n.28.

Second, EPA takes a “hard look” at the proposed definition to determine which design elements are inherent to the applicant’s purpose and which elements can be changed to reduce pollutant emissions without disrupting the applicant’s basic business purpose. Desert Rock, 14 E.A.D. at 530 (remanding a permit back to the agency because it failed to take a “hard look” when the agency determined a particular technology would redefine the source even though the applicant had considered the technology in its application); see also Prairie State, 13 E.A.D. at 25-26; NMU, 14 E.A.D. at 302. This determination and “[r]efining [of] the statutory definition of ‘control technology’ ... to exclude redesign is the kind of judgement by an administrative agency to which a reviewing court should defer.” Sierra Club, 499 F.3d at 655. Our examination of this two-step process for Sierra Pacific’s PSD permit is guided significantly by the reasoning of our sister circuit in Sierra Club in which it denied the petition arising from Prairie State.

When a fuel source is co-located with a facility, EPA need not consider in the BACT analysis fuel sources that are not readily available, because it would redefine the source. Prairie State, 13 E.A.D. at 28. There, Prairie State Generating Company filed an application for a PSD permit with EPA to build a coal-burning electrical plant in southern Illinois. Id. at 4-5. The proposed facility was a “mine-mouth” plant in which the plant is located at the site of the coal mine which fuels it. Id. at 16. However, the mine only produced high-sulfur coal which emits more sulfur dioxide pollution than low-sulfur coal from other outlying mines. Id. at 15. EPA did not list low-sulfur coal as a control technology in Step 1 of the BACT analysis, however, because low-sulfur coal would have to be shipped in by rail from long distances. Id. EPA explained that “it would be inconsistent with the scope of the project to use coal from other regions of the country.” Id. at 16.

In making this determination, EPA noted that “the project that must be addressed when evaluating BACT is the project for which an application has been submitted.” Id. In this instance, the construction of a “mine-mouth” plant. Id. EPA found that “use of a particular coal supply is an inherent aspect of the proposed project.” Id. EPA broadly considered alternative coal supplies but rejected a more detailed analysis because it was beyond the scope of the project. Id. at 18.

The ultimate dispute before the Board lay in determining how to define the basic purpose of the project and whether Prairie State could include use of coal from a particular source as part of that purpose. Id. at 21-22. “The permit issuer must be mindful that BACT, in most cases, should not be applied to regulate the applicant’s objective or purpose for the proposed facility.” Id. at 23. The Board specifically rejected petitioners’ assertion that the facility’s business purpose must be viewed broadly as the production of electricity from coal because “we have frequently recognized that an electric generating facility’s purpose may be more narrowly defined.” Id. at 25. The Board held that, in defining the scope of a project, EPA could consider if a particular fuel source was an inherent part of the project design. See id. (“It has also been long-standing EPA policy that certain fuel choices are integral to the electric power generating station’s basic design.” (citing NSR Manual at B.13)).

Additionally, the Board rejected the petitioners’ argument that a purpose that includes a particular fuel source “would allow a permit applicant to avoid all BACT review by including its preferred fuel ... and hide behind the claim that requiring anything different would unlawfully ‘redefine’ the proposed source.” Id. at 27. Because Prairie State could narrowly define its purpose as burning a particular fuel source, EPA needed only to review the facility proposed, and that meant reviewing a facility that burned co-localized high-sulfur coal. The Board examined EPA’s review of the proposed facility and was satisfied that EPA had taken a hard look at whether further emissions reductions were possible. Id. Therefore, the Board concluded, EPA did not err when it “determined that consideration of low-sulfur coal, because it necessarily involves a fuel source other than the co-located mine, would require Prairie State to redefine the fundamental purpose or basic design of its proposed Facility” and, as a result, EPA properly rejected low-sulfur fuel from Step 1 of the BACT analysis. Id. at 28.

In denying the petition arising out of Prairie State, the Seventh Circuit noted that the Board and EPA were struggling to draw the line between where “control technology ends and redesign of the ‘proposed facility’ begins.” Sierra Club, 499 F.3d at 655. The court noted that if EPA had to consider all clean fuels, it would be required to consider a nuclear plant rather than a coal-fired one, and it was clearly not required to do that. See id. (“That approach would invite a litigation strategy that would make seeking a permit- for a new power plant a Sisyphean labor, for there would always be one more option to consider.”). Because it was not as clear cut, the Seventh Circuit characterized its case as lying on the borderline between control technology and redesign. Id. at 656.

That borderline, defining the distinction between considering alternative fuels to be control technologies or to redefine the facility, is a product of EPA’s framework for evaluating BACT. The Seventh Circuit therefore held that “it makes sense to let the EPA, the author of the underlying distinction, draw it, within reason.” Id. at 655. In the facility proposed in Sierra Club, the court noted that, in isolation, the difference between low-sulfur and high-sulfur coal as a fuel source is a difference in control technology. Id. at 657. But “the difference between a plant co-located with a coal mine and a plant that obtains its coal from afar” is a difference in design. Id. Therefore, the Seventh Circuit upheld the BACT determination because EPA reasonably drew the line between control technology and redefining the source. Id.

The reasoning of Prairie State and Sierra Club has been applied to subsequent cases from the Board. In NMU, relating to the construction of a power plant on a college campus, the Board remanded a PSD permit back to the agency when it rejected the assertion that considering a different proportion of a coal and wood fuel mix would impermissibly redefine the source. 14 E.A.D. at 301-03. Particularly, the Board noted that NMU locked onto a particular fuel combination ' without any logic or data to justify the choice. Id. at 303; see also id. at 297 (“[Although the record reflects that other coal ... will produce the lowest sulfur emissions, [the agency] proceeds without explaining why these sources are unavailable or not technologically feasible.”). Notably relevant to the current appeal, NMU did not fully analyze the possibility of natural gas as a fuel source when the permit application stated that it would be used for boiler startup and as a backup fuel source. Id. at 297 n.17; see also In re Cash Creek Generation LLC, 2009 WL 7513857 (E.P.A. 2009) (remanding the permit to the applicant because the record was insufficient to justify a determination that an exclusive use of natural gas, a secondary fuel for the project, would impermissibly redefine the source).

B

Adopting the two-step analysis promulgated by the Board and approved by the Seventh Circuit, we must now determine whether EPA erred in determining that using solar power or a greater natural gas mix in Sierra Pacific’s proposed facility would impermissibly redefine the source.

First, we look at how Sierra Pacific itself defined its facility. In its application description, Sierra- Pacific explicitly stated that it intended to build a power plant “that would burn biomass fuels in a boiler to produce steam that would be used to generate electricity and to heat existing lumber dry kilns at the facility.” Sierra Pacific then went on to define more particularly that its biomass fuel source would come from the existing Sierra Pacific mills, in-forest materials from timberlands owned by Sierra Pacific, and other readily available sources of agricultural and urban wood wastes. Sierra Pacific would use natural gas only for the limited purposes of startup, shutdown, and flame stabilization. Capped at 10%, Sierra Pacific estimated its annual usage of natural gas to be significantly below that limit.

Next, we must determine if EPA took the appropriate “hard look” at how Sierra Pacific defined the facility and whether EPA appropriately determined that the burning of biomass was an inherent element of the facility or whether it could be changed to reduce emissions. In the PSD permit issued by EPA, the project description stated that fuel for the power plant would be generated on-site or received from other local sources to produce steam in the new facility. The steam was then to' be used to dry lumber and to power a steam turbine to generate electricity for use onsite or for sale to the northern California power grid.

Helping Hand argues that the Board improperly deferred to Sierra Pacific’s purpose of “burning biomass ‘as much as possible’ ” and read “clean fuels” out of the Clean Air Act. Sierra Pacific’s purpose, according to Helping Hand, is only to generate steam for lumber drying kilns and to make electricity. However, Sierra Pacific’s purpose need not be so limited, see Prairie State, 13 E.A.D. at 25, and Helping Hand concedes that “Sierra Pacific arguably can have a basic business purpose of ‘primarily’ burning a dirtier fuel that is readily available to it.” Just as the Prairie State facility was co-located with its fuel source, a high-sulfur coal mine, Sierra Pacific’s facility is co-located with its fuel source, waste from its lumber manufacturing operations. Therefore, EPA took a “hard look” at the record and how Sierra Pacific defined its facility and reasonably determined that use of a co-located fuel source was an inherent part of the facility’s design.

Having determined that biomass fuel was an inherent part of the design, we finally examine whether the two proposed alternative clean fuels were control alternatives that should have been considered or would impermissibly redefine the source; keeping in mind the deference EPA must be afforded in making such a determination. Like the petitioners in Sierra Club, Helping Hand essentially argues that “if a plant is capable — with redesign— of burning a clean fuel, it must undergo a ‘best available control technology’ analysis.” 499 F.3d at 656. Requiring a solar component just because it is a cleaner fuel than biomass is the same as requiring Sierra Pacific to consider the nuclear option. See id. Sierra Pacific and EPA are not required to take on the “Sisyphean” task of considering every possible clean fuel alternative. See id. at 655. Therefore, EPA properly dismissed solar as a control technology.

The Board noted, correctly, that consideration of a greater natural gas mix was a closer question. Sierra Pacific’s proposed project falls on the borderline discussed in Sierra Club. However, unlike the applicant in Sierra Club, Sierra Pacific is not considering two fuel sources as control options: one an off-site “clean” fuel, one an on-site “dirty” fuel. In this instance, Sierra Pacific has access to two on-site fuel sources: “clean” natural gas and “dirty” biomass. Though this typically would suggest that Sierra Pacific must consider a greater mix of natural gas, even when an alternative fuel is available, it need not be considered at Step 1 if it disrupts the business purpose. GHG Permitting Guidance at 28 (“[G]reater utilization of a fuel that the applicant is already proposing to use in some aspect of the project design should be listed as an option in Step 1 unless it can be demonstrated that such an option would disrupt the applicant’s basic business purpose for the proposed facility.”). Here, a greater use of natural gas would disrupt Sierra Pacific’s intent to burn the biomass waste it produces from mill operations.

Notably, unlike the facilities in NMU and Cash Creek, Sierra Pacific does not propose to use natural gas as a “secondary” or backup fuel source but only for strictly limited purposes. And unlike the facilities in NMU and Cash Creek, Sierra Pacific gave valid reasons for imposing a 10% cap: that its purpose was to burn as much of its own biomass waste as possible, and that it expected to burn much less than 10% natural gas because it was being used for such a limited purpose. Burning natural gas is therefore incidental to Sierra Pacific’s business purpose of using its on-site source of biomass as fuel for the new facility. Declining to consider greater use of an incidental fuel is not arbitrary, capricious, or an abuse of discretion.

Drawing the line between- control technology and redefining the source is a technical determination to which a court should defer to EPA, see Sierra Club, 499 F.3d at 655, and there was sufficient justification in the record for EPA to determine that primarily burning biomass from Sierra Pacific’s own wood waste, a co-localized source, was an inherent aspect of the facility’s design. Requiring EPA and Sierra Pacific to consider solar power, a completely different fuel source, or a greater percentage of natural gas, an incidental fuel source, would redefine the source. EPA did not act arbitrarily or capriciously and Helping Hand’s petition is denied.

IV

Next we address the claims raised by the Center in response to the supplemental greenhouse gas BACT analysis. The Center contends that EPA could not consider burning of biomass fuel alone as a control option at Step 1 and that it erred in weighing the effects of different biomass fuel stocks at Step 4 instead of directly comparing them at Step 1. Because EPA was largely relying on its own guidance, acting at the frontiers of science, we defer to the agency’s determination. See Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)

A

We review questions of statutory interpretations of the Clean Air Act by the two-step process of Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Vigil v. Leavitt, 381 F.3d 826, 833-34 (9th Cir. 2004). If Congress has not directly spoken to the precise issue, or the statute is silent or ambiguous, the court must determine if the agency’s construction is permissible. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. When Congress has not provided clear guidance in a statute, an agency may fill the gap and its construction is to be given “controlling weight unless ... arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844, 104 S.Ct. 2778 (deferring to EPA’s interpretation of “source” in the Clean Air Act); see also EPA v. EME Homer City Generation, L.P., — U.S. —, 134 S.Ct. 1584, 1603-07, 188 L.Ed.2d 775 (2014) (deferring to EPA’s interpretation of “amount” in the Good Neighbor Provision of the Clean Air Act).

“[T]he weight that we are to give an administrative interpretation not intended by an agency to carry the general force of law is a function of that interpretation’s thoroughness, rational validity, and consistency with prior and subsequent pronouncements.” Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1068 (9th Cir. 2003) (en banc). However, when an agency is acting “within its area of special expertise, at the frontiers of science,” the court should “be at its most deferential.” Baltimore Gas & Elec. Co., 462 U.S. at 103, 103 S.Ct. 2246; see also Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163, 1174 (9th Cir. 2004) (“Where scientific and technical expertise is necessarily involved in agency decision-making, ... a reviewing court must be highly deferential to the judgment of the agency.”).

What level of deference we must show EPA’s BACT guidance is unclear. The publications are not intended to carry the force of law because EPA must still analyze each application on a case-by-case basis. However, all the publications were promulgated by EPA in order to bring meaning to the BACT statute which Congress has not defined any further than it did in 42 U.S.C. §7479(3). EPA promulgated these policies specifically to carry out Congress’s intent. We need not resolve the issue here, however, because, as discussed below, under either standard EPA’s actions were neither arbitrary nor capricious.

B

Ultimately, the Center’s concerns are not particular to the Sierra Pacific permit but attack the Bioenergy BACT Guidance. The Bioenergy BACT Guidance builds on the NSR Manual that EPA has used for decades and proposes a more detailed analysis for a particular pollutant — greenhouse gas emissions from biomass fuels— because the emissions from this particular fuel source have unique environmental consequences. Nothing prohibits EPA from refining its top-down BACT approach for particular pollutants — particularly when the refinement is heavily dependent upon the agency’s own scientific expertise. Following the Bioenergy BACT Guidance is therefore thorough, rational, and consistent with EPA’s prior practice. See Wilderness Soc’y, 353 F.3d at 1068. And as explained above, we must defer to EPA agency expertise and not disturb the analysis set forth in the Bioenergy BACT Guidance.

In particular, the Center contends that utilization of biomass fuel alone cannot be considered a control technology for the burning of biomass fuel at Step 1 of the BACT analysis because it does not “control” biomass emissions. EPA argues, however, that the option is used as a baseline to which all other options are compared and is not inconsistent .with the traditional top-down approach. Moreover, EPA did not ultimately choose this option but selected other control technologies including: combustion of specific biomass fuel stocks; energy efficient design, operation, and maintenance; and employing good combustion practices and efficient operation as a cogeneration unit. In the end, EPA chose the same control measures as five other facilities. Providing a baseline in the BACT analysis does not make the ultimate determination arbitrary, capricious, or even unreasonable.

The Center further argues that the effect of burning different biomass fuel stocks should be considered at Step 1 of the analysis. EPA does not disagree in theory. But EPA currently lacks the scientific data at this time to make such a quantitative determination and is actively collecting the data to do in the future the type of analysis desired by the Center. See Bioenergy BACT Guidance at 23. Furthermore, because the same amount of carbon dioxide will be released at the facility no matter which biomass fuel stock is burned, any difference in environmental consequences is indirect. Id. at 22. Therefore, consistent with the NSR Manual, these indirect environmental impacts and benefits are better suited to analysis in Step 4.

Acknowledging the differences in the environmental impact of different biomass fuel stocks, however, EPA responded to the Center’s comment by clarifying the fuel restrictions in the final permit. Notably, Sierra Pacific and EPA were particularly proactive in ensuring the appropriate fuel restrictions were written into the PSD permit. Sierra Pacific’s initial application contemplated the use of co-localized mill waste as well as in-forest materials from Sierra Pacific’s timber operations and other readily available agricultural and urban wood wastes.

The environmental impact report (“EIR”) prepared by EPA noted that there were different estimates of the type of biomass fuel blend Sierra Pacific planned on using, ranging from 100% mill wastes to a blend supplementing mill wastes with biomass from forest-harvesting operations, forest-thinning operations, agricultural waste from the Sacramento Valley, and urban wood waste. EPA therefore conducted the EIR assuming a “worst-case” scenario in which 35% of the biomass used was not co-localized with the facility. The supplemental Statement of Basis and Ambient Air Quality Impact Report also assumed a biomass fuel mix of 75% mill residue arid 25% in-forest residues, agricultural residues, and urban wood residues.

Based on the EIR, EPA drafted a PSD permit restricting fuel to “clean cellulosic biomass” allowing Sierra Pacific to burn an extensive list of biomass fuels at the facility. Sierra Pacific commented on the draft asking for more restrictive limitations on the types of biomass fuel it would be allowed to use in its facility because it was more consistent with the original application. EPA adopted Sierra Pacific’s modifications in another draft of the permit, which was then further modified in response to the Center’s comments.

Though it was not prepared at the time to compare the environmental impacts of sawmill residue versus other biomass wastes, EPA ensured that Sierra Pacific would not log timber solely for the purpose of using it as biomass for the new facility. EPA limited Sierra Pacific to only the particular biomass fuels readily available to the facility: mill residues, untreated wood debris from urban areas such as pallets and crates, agricultural crops and residues, forest residues, and non-merchantable forest biomass. The only trees that can be burned in Sierra Pacific’s facility, therefore, are those that would be removed from the forest anyway as part of Sierra Pacific’s ongoing forest management and forest-thinning operations.

Though the Center argues that EPA is equipped to proceed with a quantitative analysis of different biomass fuel stocks at Step 1, EPA says it cannot do that based on the current state of the science. Because the agency is acting at the frontiers of science, we must defer. See Baltimore Gas & Elec., 462 U.S. at 103, 103 S.Ct. 2246. The Center does not clearly explain how EPA’s analysis here is not thorough, rational, and consistent with EPA’s prior guidance on BACT. Sierra Pacific is restricted to the forms of biomass waste readily available to it and cannot clear cut forests just to produce electricity for its lumber mills. EPA did consider the environmental impacts of different biomass fuel stocks, just not in the manner or the level of detail the Center would prefer. Because we must defer to EPA’s interpretation of BACT and its scientific expertise, EPA’s analysis is not arbitrary, capricious, or an abuse of discretion, and we deny the Center’s petition.

V

Sierra Pacific’s application went through an extensive process to issue a reasoned PSD permit for its new biomass burning boiler. EPA properly defined the project and rejected control technologies that redefined the project with thoughtful and reasonable explanations. The Bioenergy BACT Guidance EPA applied to the greenhouse gas emissions from Sierra Pacific’s new facility is rational and thoroughly consistent with EPA’s prior guidance. The guidance relies extensively on the continually evolving analysis of the- environmental effect of different biomass fuels in the ever-developing field of climate-change science. It is not our place to interfere with EPA’s expertise when the record shows that its endeavors were reasonable.

Costs are awarded to Respondents.

The petitions for review are DENIED.

      . Cogeneration units produce both electrical power and heat. See, e.g., In re N. Mich. Univ. Ripley Heating Plant, 14 E.A.D. 283, 285 (E.A.B. 2009).

      . Used interchangeably with the terms "bioenergy” and "biogenic,” biomass fuels include wood waste such as chips and bark from sawmill operations, forest residue, agricultural residue, crops, grasses, standing trees, and waste from landfills or water treatment. 76 Fed. Reg. 43,490-01, 43,493 (July 20, 2011).

      . A BDT is 2,000 pounds of wood pulp with a zero percent moisture content.

      . Flame stabilization is necessary when optimal operations of the boiler are upset by fuel variability, such as from burning wet wood waste fuel. At these times, the optimal combustion of the wood waste is not occurring and natural gas is used to stabilize combustion and to maximize efficiency by returning the boiler to desired high temperature operations.

      . "Greenhouse gases" are considered a single pollutant comprised of the aggregate of carbon dioxide, nitrous oxide, methane, hydro-fluorocarbons, perfluorocarbons, and sulfur hexafluoride.

      . Though the extent to which EPA can require particular facilities to comply with BACT requirements for greenhouse gases has been heavily litigated, the Supreme Court recently held that "EPA's decision to require BACT for greenhouse gases emitted by sources otherwise subject to PSD review is” permissible. Util. Air Regulatory Grp. v. EPA, — U.S. —, 134 S.Ct. 2427, 2448, 189 L.Ed.2d 372 (2014). The cogeneration power plant proposed by Sierra Pacific is such a facility and neither party disputes EPA's authority to regulate greenhouse gas emissions from that facility.

      . Steps 2 and 3 are conducted in the same manner as promulgated in the NSR Manual. Bioenergy BACT Guidance at 16-17.

      . To illustrate the point, burning a dead tree that has fallen in the forest, instead of a live tree, will have a different impact on the environment. Burning the dead tree releases the same amount of carbon dioxide into the atmosphere that would be released anyway as the tree decomposed. But the emissions occur faster and at the facility, not in the forest. Burning the live tree, which uses carbon dioxide for photosynthesis, removes a carbon dioxide absorbing source from the forest and also releases carbon dioxide emissions at the facility. The facility emits carbon dioxide in either case but the environmental impact at the forest — the benefit of removing a carbon dioxide emitting decomposing tree or the harm in removing a carbon dioxide absorbing live one — are an indirect result of burning biomass fuel at the facility. However, a comparison of different biomass fuel stocks, such as comparing the effects of burning mill waste to the effects of burning a dead tree, is a much more technical endeavor that EPA is actively trying to calculate at present. Bioen-ergy BACT Guidance at 23. The problem, according to the agency, is the current inability of the available science to quantify the tradeoff. Id. Where the agency is acting on the frontiers of developing science, our deference is at its highest level. Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983).

      . At the time, EPA had issued a rule deferring regulation of biogenic carbon sources in order to examine the science behind biogenic carbon dioxide emissions from stationary sources like power plants. See Ctr. for Biological Diversity v. EPA, 722 F.3d 401, 407 (D.C. Cir. 2013). The District of Columbia Circuit later vacated this rule. Id. at 412.

      . Though not disputed by EPA, because this is the first time the case is before an Article III court, Helping Hand and the Center must establish standing. See Sierra Club v. EPA, 762 F.3d 971, 976 (9th Cir. 2014). We are satisfied that, through the declarations of its members, both Helping Hand and the Center have associational standing to bring the current petition. See id. at 976-78 (discussing that ''[a]n association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right” and further discussing the factors demonstrating that the individual members had standing to pursue Clean Air Act claims (internal quotation marks omitted)).

      . This conclusion is supported by evidence in the record that Sierra Pacific produces more waste than could be consumed by the proposed generator.

      . Petitioners seize upon Sierra Pacific’s admission that it limited natural gas to 10% to avoid the nitrous oxide limiting requirements of the New Source Performance Standards ("NSPS”). See 40 C.F.R. § 60.44b(d). Limiting natural gas to avoid a nitrous oxide emission limit is not a design decision "independent of air permitting.” The Board erroneously held that such a self-imposed cap was acceptable because it was "federally enforceable.” Deciding whether or not to impose a cap of 10% natural gas to avoid NSPS requirements does not exclude consideration of greater utilization of natural gas in the BACT analysis. See NSR Manual at B.12 (“The only reason for comparing control options to an NSPS is to determine whether the control option would result iij an emissions level less stringent than the NSPS.”). Though troubling, this error does not ultimately undermine the key fact that Sierra Pacific's basic business purpose and facility design is to use a co-localized source of biomass fuel, its own wood wastes, to generate steam and electricity for its mill and limited use of natural gas is incidental to that purpose. For that reason, any error in justifying the 10% cap is harmless.


author: GRABER, Circuit Judge:

text:
    David Bernard CLARK, Petitioner-Appellant, v. Charles L. RYAN, Director of the Arizona Department of Corrections, Respondent-Appellee.
    No. 15-15531
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted August 12, 2016—San Francisco, California
    Filed September 2, 2016

      Sandra L. Slaton (argued) and Kristin Roebuck, Horne Slaton PLLC, Scottsdale, Arizona, for Petitioner-Appellant.
    Andrew S. Reilly (argued), Assistant Attorney General, Capital Litigation Section; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondent-Appellee.
    Before: MICHAEL DALY HAWKINS and SUSAN P. GRABER, Circuit Judges, and JAMES V. SELNA, District Judge.

       The Honorable James V. Selna, United States District Judge for the Central District of California, sitting by designation.

   OPINION

GRABER, Circuit Judge:

Petitioner David Bernard Clark appeals the district court’s denial of his petition for a writ of habeas corpus. Petitioner contends that an Arizona Court of Appeals’ decision that Arizona’s modern sex offender registration statute, Ariz. Rev. Stat. § 13-3821, is not an ex post facto law is both contrary to and involves an unreasonable application of clearly established federal law. Reviewing the district court’s decision de novo, Pollard v. White, 119 F.3d 1430, 1433 (9th Cir. 1997), we affirm.

In 1982, Petitioner pleaded guilty to sexual misconduct, a Class 2 felony in Arizona, arising from an incident in which he engaged in sex with a fourteen-year-old, which is below the legal age of consent, when he was eighteen years old. As punishment, he received and completed a four-year term of probation. Arizona enacted its modern sex offender registration statute in 1983, Ariz. Rev. Stat. § 13-3821, requiring Petitioner to register as a sex offender because of his prior conviction for sexual misconduct. See State v. Henry, 224 Ariz. 164, 228 P.3d 900, 904 (Ariz. Ct. App. 2010) (noting that, between 1978 and 1983, Arizona was without a sex offender registration statute).

In December 2009, Petitioner was arrested in Cochise County, Arizona, for failing to comply with the statute. In January 2010, he pleaded guilty to a charge of failure to register as a sex offender, a Class 4 felony, and was sentenced to a stipulated prison term of three and one-half years. Petitioner filed a petition for post-conviction relief with the state trial court, arguing that his conviction violated the Ex Post Facto Clause of the United States Constitution. The state trial court rejected that claim on the merits, relying on Henry, 228 P.3d at 908. In Henry, the Arizona Court of Appeals held that Arizona Revised Statute section 13-3821 did not violate the right against ex post facto punishment protected by the United States or the Arizona Constitution. Id. Henry applied the United States Supreme Court’s decision in Smith v. Doe I, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), which upheld Alaska’s sex offender registration statute against an ex post facto challenge. Henry, 228 P.3d at 906-08. In Petitioner’s case, the Arizona Court of Appeals followed Henry to hold that Petitioner’s conviction was not an ex post facto violation. Petitioner appealed that decision to the Arizona Supreme Court, which denied review.

Petitioner then filed a federal petition for writ of habeas corpus. The district court denied the petition, holding that the state court did not apply Smith unreasonably to the facts of this case.

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AED-PA”), habeas relief is available if the last reasoned state court decision — here, the decision of the Arizona Court of Appeals— was contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). “A state court’s decision can involve an ‘unreasonable application’ of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see also Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (noting that AED-PA is a “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt” (citation and internal quotation marks omitted)).

Here, the Arizona Court of Appeals relied on its earlier decision in Henry. Whether or not its decision was contrary to, or an unreasonable application of, Supreme Court authority thus necessitates that we examine Henry’s logic.

The Ex Post Facto Clause of the United States Constitution “forbids the application of any new punitive measure to a crime already consummated.” Kansas v. Hendricks, 521 U.S. 346, 370, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (internal quotation marks omitted). When determining whether a state’s sex offender registration statute violates the Ex Post Facto Clause, courts must first, “ascertain whether the legislature meant the statute to establish civil proceedings. If the intention of the legislature was to impose punishment, that ends the inquiry.” Smith, 538 U.S. at 92, 123 S.Ct. 1140 (citation and internal quotation marks omitted). “If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive,” courts must then “examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” Id. (internal quotation marks and brackets omitted).

In Smith, the United States Supreme Court held that Alaska’s Sex Offender Registration Act, which established a registration and public notification scheme similar to Arizona’s, was “nonpunitive, and its retroactive application does not violate the Ex Post Facto Clause.” Id. at 105-06, 123 S.Ct. 1140. The Court reached its conclusion by reasoning that “the intent of the Alaska Legislature was to create a civil, nonpunitive regime,” id. at 96, 123 S.Ct. 1140, and that the respondents could not show “that the effects of the law negate Alaska’s intention to establish a civil regulatory scheme,” id. at 105, 123 S.Ct. 1140.

The first step in analyzing legislative intent thus requires courts to “ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Id. at 93, 123 S.Ct. 1140 (internal quotation marks omitted). Henry did just that, citing the law’s regulatory, nonpunitive aim: “The purpose of' the [Department of Public Safety’s] internet sex offender website is to provide sex offender information to the public.” Henry, 228 P.3d at 905 (alteration in original) (quoting 1998 Ariz. Sess. Laws, ch. 291, § 5). Moreover, Henry noted that an earlier decision of the Arizona Court of Appeals had found that “the legislature furnished ample indication that it intended to protect communities, not punish sex offenders” through the registration requirements. Id. (quoting Ariz. Dep’t of Pub. Safety v. Superior Court, 190 Ariz. 490, 949 P.2d 983, 988 (Ariz. Ct. App. 1997)). Specifically, the earlier decision found a “regulatory objective” in the registration requirements — the legislature’s desire to protect the public from repeat sex offenders. Ariz. Dep’t of Pub. Safety, 949 P.2d at 988.

From the facts that Arizona’s sex offender registration scheme was enacted within the criminal code and that noncompliance with the registration requirements can result in punishment, it does not necessarily follow that the legislature’s intent was punitive. In Smith, the Supreme Court expressly stated that “[t]he location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one.” 538 U.S. at 94, 123 S.Ct. 1140. The Court also held that Alaska’s registration statute, which likewise contained criminal penalties for noncompliance, was nonpunitive. Id. at 102, 123 S.Ct. 1140. It was thus not unreasonable for the Arizona Court of Appeals to conclude that Arizona’s regulatory scheme is intended to be civil and nonpunitive.

Turning next to the question whether a law’s punitive effects outweigh its regulatory purposes, courts consider a nonexhaustive set of factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Smith, 538 U.S. at 97, 123 S.Ct. 1140. Smith identified the factors most relevant to the sex offender registration inquiry as being whether, in its necessary operation, the regulatory scheme: (1) has been regarded in our history and traditions as a punishment; (2) imposes an affirmative disability or restraint; (3) promotes the traditional aims of punishment; (4) has a rational connection to a nonpunitive purpose; or (5) is excessive with respect to this purpose. Id.

There are two possible ways to consider whether the Arizona decision unreasonably applies Smith. One way is to examine the state court’s application of each nonexclusive Smith factor. The other is to view the state court’s decision as a whole, without parsing each factor. Either way, we conclude that Henry does not apply Smith unreasonably. We will begin by discussing each factor.

1. Regarded as Punishment in History and Traditions

The Henry court considered this factor. Although the Arizona Supreme Court had previously held sex offender registration to be a traditional form of punishment, that holding was “undermined by Smith,” which held that “[o]ur system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment.” Henry, 228 P.3d at 906 (quoting Smith, 538 U.S. at 98, 123 S.Ct. 1140; citing State v. Noble, 171 Ariz. 171, 829 P.2d 1217, 1223 (1992)).

Petitioner contends that the registration requirements of the Arizona statute, unlike the Alaska scheme in Smith, “go beyond the mere dissemination of factual information” and are analogous to public shaming. Specifically, he argues that Internet use has increased since the Supreme Court decided Smith in 2003; the Arizona statute requires registrants to provide online identifiers; and website identification will likely facilitate harassment of registrants, as evidenced by the recent adoption of cyber-stalking and cyber-harassment laws in Arizona.

Although Internet use has indeed increased since the Supreme Court decided Smith in 2003, the Court specifically considered the vast “geographic reach of the Internet” in its decision. The Court reasoned that “[widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.” Smith, 538 U.S. at 99, 123 S.Ct. 1140. Thus, the Henry court’s analysis under this factor was not unreasonable.

2. Imposing Affirmative Disability or Restraint

Henry acknowledged that “Arizona’s scheme is even more analogous to probation or supervised release than the Alaska scheme addressed in Smith.” Henry, 228 P.3d at 906-07. The decision, however, went on to note that “Arizona’s supreme court previously has upheld our sex offender registration system as regulatory despite its codification in ... our criminal code; its enforcement solely through criminal prosecution; and its designation of registration violations as felony offenses.” Id. at 907 (citing Noble, 829 P.2d at 1218-19). The decision also emphasized that the Arizona legislature “has taken steps to tailor the statutes to serve more precisely their nonpunitive ends.” Id. For example, mandatory notification is required only for offenders who are deemed to pose a high risk to the community, some provisions limit public disclosure of an offender’s online identifiers, and courts are allowed to terminate both registration and community-notification requirements for sex offenders younger than age 22. Id. (citing Ariz. Rev. Stat. §§ 13-3821(H), 13-3825(0 & (L), and 13-3827(A), (D) & (E)). Taking the Arizona Supreme Court’s decision in Noble and the statute’s registration exceptions into account, it was not unreasonable for the Henry court to conclude that the statute is not so burdensome as to impose an affirmative disability or restraint.

3.Promoting Traditional Aims of Punishment

Henry does not expressly consider this factor. Nonetheless, this factor does not weigh heavily in favor of a conclusion that the punitive effects of Arizona’s registration statute outweigh its regulatory purposes.

The Supreme Court in Smith downplayed the importance of this factor: “To hold that the mere presence of a deterrent purpose renders ... sanctions criminal would severely undermine the Government’s ability to engage in effective regulation.” 538 U.S. at 102, 123 S.Ct. 1140 (internal quotation marks and ellipsis omitted). The Court also noted that, because the length of reporting requirements under the Alaska law were “reasonably related to the danger of recidivism, .[the law] is consistent with the regulatory objective.” Id. Moreover, although Henry does not expressly discuss this factor, it does list various exceptions to the notification and registration requirements depending on the offender’s level of risk or age. 228 P.3d at 907. Those exceptions undermine Petitioner’s claim that the statute applies to all offenders indiscriminately. Similarly, the exceptions support a conclusion that, much like the Alaska law in Smith, Arizona’s reporting requirements are reasonably related to the danger of recidivism.

4. Rational Connection to Nonpuni-tive Purpose

Smith notes that a law’s “rational connection to a nonpunitive purpose is a most significant factor” in the determination that the law’s effects are consistent with a regulatory objective because they are non-punitive. 538 U.S. at 102, 123 S.Ct. 1140 (internal quotation marks and brackets omitted). Much like the law at issue in Smith, Arizona’s registration statute clearly has “a legitimate nonpunitive purpose of public safety ... advanced by alerting the public to the risk of sex offenders.” Id. at 102-03, 123 S.Ct. 1140 (internal quotation marks omitted); see also Henry, 228 P.3d at 907 (noting that the registration and notification exceptions that apply depending on the offender’s level of risk or age allow “the statutes to serve more precisely their nonpunitive ends”). Therefore, as it did in Smith, this factor weighs heavily in favor of a determination that the registration scheme’s punitive effects do not outweigh its regulatory purposes.

5. Excessive With Respect to Nonpuni-tive Purpose

Unlike the Alaska statutory scheme analyzed in Smith — which required registration for only 15 years when the offender had been convicted of a nonaggravated offense — all offenders over the age of 22 must register for life in Arizona. See Doe v. New Hampshire, 167 N.H. 382, 111 A.3d 1077, 1100 (2015) (“We find the lifetime duration of the registry in particular to be excessive, when considered with all of the act’s other impositions.”). The Henry court was troubled by the Arizona legislature’s removal of regulations that limited disclosure, noting that the statutory scheme “now specifically requires broad community disclosure ... for most classes of offenders.” 228 P.3d at 908. Despite those concerns, though, Henry held that Arizona’s and Alaska’s statutory schemes were “not meaningfully distinguishable.” Id. Taking into account the Arizona statute’s registration and notification exceptions, which depend on the offender’s level of risk or age, the state court’s conclusion was not unreasonable.

6. Remaining Factors

Smith counsels that “[t]he two remaining Mendoza-Martinez factors — whether the regulation comes into play only on a finding of scienter and whether the behavior to which it applies is already a crime— are of little weight” in cases such as this one. Smith, 538 U.S. at 105, 123 S.Ct. 1140; see also id. (“The regulatory scheme applies only to past conduct, which was, and is, a crime. This is a necessary beginning point, for recidivism is the statutory concern.”). Thus, those factors do little to support Petitioner’s claim.

We turn next to an overall consideration of Henry in light of Smith. Considering all the relevant factors, taken together, the Arizona Court of Appeals was not unreasonable in holding that the statute’s punitive effects fail to outweigh its regulatory purposes. The state court’s decision in the present case is neither contrary to, nor does it unreasonably apply, the relevant Supreme Court precedent, Smith.

AFFIRMED.

      . Petitioner does not contend that the facts of this case are meaningfully different from those in Henry.

      . Petitioner does not argue that the mere failure to discuss every factor renders the Arizona court's decision contrary to, or an unreasonable application of, Supreme Court law. Nor would such an argument succeed in view of the fact that the Mendoza-Martinez factors are “neither exhaustive nor disposi-tive,” Smith, 538 U.S. at 97, 123 S.Ct. 1140 (quoting United States v. Ward, 448 U.S. 242, 249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)).

      . Petitioner contends that this case is distinguishable from Smith because he is challenging his criminal conviction for failing to register, rather than merely challenging the registration requirements. This distinction is not a meaningful one for present purposes. See United States v. Elkins, 683 F.3d 1039, 1043-45 (9th Cir. 2012) (relying on Smith to reject the defendant's claim that his prosecution under the Federal Sex Offender Registration and Notification Act violated the Ex Post Facto Clause).