1. Clean Air Act Litigation Update State Air Director Meeting May 2015
Keri N. Powell
Senior Attorney for Air Counseling
U.S. EPA Region 4

2. D.C. Circuit Partially Vacates EPA’s 2012 Ozone NAAQS Implementation Rule Natural Resources Defense Council v. EPA (D.C. Cir., Dec. 23, 2014)
Schedule of attainment deadlines— which effectively gave areas an additional year to comply—exceeded EPA’s authority under the Clean Air Act.
Revocation of the 1997 NAAQS for transportation conformity purposes alone is contrary to the Clean Air Act.

3. Sixth Circuit Vacates EPA’s PM2
Sixth Circuit Vacates EPA’s PM2.5 Redesignations of the Ohio and Indiana Portions of the Cincinnati-Hamilton Area Sierra Club v. EPA (6th Circuit, March 18, 2015)
Court vacated redesignations because EPA not permitted to approve a redesignation request without first approving reasonably available control measures.
Rejected Sierra Club argument that EPA could not consider emission reductions obtained through cap-and-trade programs to be “enforceable.”
Left redesignation of Kentucky portion intact because Sierra Club failed to comment on this during the rulemaking.

4. D.C. Circuit Dismisses Challenges to Greenhouse Gas Rules for Cars & Trucks Delta Construction v. EPA (D.C. Cir., April 24, 2015)
Challenge to coordinated rules governing greenhouse gas emissions and fuel economy of cars and trucks issued by EPA and the National Highway Traffic Safety Administration.
Court dismissed challenges on basis that Petitioners lacked standing to sue.

5. D.C. Circuit Strikes Down Portions of Rules Governing Reciprocating Internal Combustion Engines (RICE) State of Delaware Department of Natural Resources v. EPA (D.C. Cir., May 1, 2015)
Held that EPA acted arbitrarily and capriciously when it authorized backup generators to operate for up to 100 hours per year without emissions controls in emergency demand-response programs.

6. D.C. Circuit Amends Judgment in GHG Permitting Rule Cases in Accordance with Supreme Court’s UARG Decision.
Vacated EPA’s GHG permitting regulations to the extent they require stationary sources to obtain a PSD or Title V permit based solely on their GHG emissions.
Vacated regulations to the extent they require the agency to onsider phasing-in of lower GHG emission thresholds.
Left undisturbed EPA’s rules governing application of the BACT requirement to GHG emissions from “anyway” sources.
Background:
Stationary sources cannot be required to obtain a Clean Air Act permit based solely on their greenhouse gas emissions.
EPA reasonably determined that the Clean Air Act requires best available control technology for greenhouse gases for sources otherwise subject to Prevention of Significant Deterioration review.

7. Supreme Court Reviewing Mercury & Air Toxics Standards (MATS Rule) Michigan v. EPA (cert. granted Nov. 25, 2014; argued March 25, 2015)
Rule sets emission limits for coal- & oil-fired electric generating units.
Addresses mercury, filterable particulate matter (surrogate for toxic metals) and hydrogen chloride (surrogate for acid gases).
In White Stallion Energy Center v. EPA (D.C. Cir., April 15, 2014), D.C. Circuit rejected challenges from industry and environmental petitioners, giving deference to what it said are the EPA’s reasonable decisions.

8. Question Presented to the Supreme Court Regarding the MATS Rule:
Whether EPA's interpretation of "appropriate" in 42 U.S.C. § 7412(n)(1)(A) is unreasonable because it refused to consider a key factor (costs) when determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.
Background on Litigation Over Mercury & Air Toxics Rule White Stallion Energy Center v. EPA (D.C. Cir., April 15, 2014)—D.C. Circuit upheld rule.
Rule sets emission limits for coal- & oil-fired electric generating units.
Addresses mercury, filterable particulate matter (surrogate for toxic metals) and hydrogen chloride (surrogate for acid gases).
D.C. Circuit rejected challenges from industry and environmental petitioners, giving deference to what it said are the EPA’s reasonable decisions.

9. Decisions to Watch For…
State of North Carolina v. EPA, No (D.C. Cir.) (petition for review of EPA’s PM2.5 Increments Rule (argued April 14, 2015).
Mississippi Commission on Environmental Quality v. EPA, No (D.C. Cir.)(challenge to designations for the 2008 ozone NAAQS)(argued October 21, 2014)
Michigan v. EPA, No (Sup. Ct)(Supreme Court review of D.C. Circuit decision upholding the Mercury Air Toxics Standards (MATS) (argued March 25, 2015)
Consolidated argument before the D.C. Circuit in three cases challenging EPA’s authority to promulgate the CAA 111(d) GHG EGU Rule. Murray Energy v. EPA (Extraordinary Writs case); Murray Energy v. EPA, No (Challenge to Proposed Rule); West Virginia v. EPA, No (Challenge to Settlement Agreement)(argued April 16, 2015).