Environmental Protection Agency's (EPA) Clean Air Interstate Rule (CAIR) Memo Escapes Challenge in D.C. Circuit; Petition Dismissed on Standing Grounds
On June 13, 2014, the United States Court of Appeals for the District of Columbia (“D.C. Circuit”) dismissed, for failure to demonstrate standing, petitioners’ challenge to the United States Environmental Protection Agency’s (“EPA”) memorandum regarding implementation of the 2005 Clean Air Interstate Rule (“CAIR”) after the Transport Rule had been vacated. Sierra Club v. EPA, No. 13-1014, 2014 U.S. App. LEXIS 11002 (D.C. Cir. Jun. 13, 2014).
EPA has made a number of efforts to implement the “good neighbor provision” of the Clean Air Act, including CAIR and more recently the 2011 Cross-State Air Pollution Rule (the “Transport Rule”). When EPA re-designates an area from non-attainment to attainment with the national ambient air quality standards (“NAAQS”) it must “determine that ‘the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from [the State Implementation Plan (SIP)].’” Sierra Club, at *2 (emphasis in original). Further, under the good neighbor provision, EPA must determine that each SIP includes “adequate provisions” to ensure that emissions in that state will not “contribute significantly to nonattainment in, or interfere with maintenance by, any other State….” Id. at 3.
When the D.C. Circuit vacated CAIR in 2008, the court on rehearing allowed it to “remain in effect until it is replaced by a rule consistent with [the court’s] opinion.” North Carolina v. EPA, 531 F.3d 896, 929-30 (D.C. Cir. 2008),reh’g granted, 550 F.3d 1176, 1178. In response to the court’s decision, EPA promulgated the Transport Rule in 2011, but this was vacated by the D.C. Circuit in 2012. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012), rev’d, 134 S. Ct. 1584 (2014). However, the court stated that EPA may continue to administer CAIR until a valid replacement is promulgated. Id. Just two months ago, the United States Supreme Court reversed the D.C. Circuit’s vacatur of the Transport Rule. EME Homer,134 S. Ct. at 1609-10.
Soon after the D.C. Circuit vacated the Transport Rule, on November 19, 2012, EPA issued a memorandum entitled “Next Steps for Pending Redesignation Requests and State Implementation Plan Actions Affected by the Recent Court Decision Vacating the 2011 Cross-State Air Pollution Rule” (the CAIR Memo). The CAIR Memo stated that, for pending attainment SIPs, redesignation requests, and associated maintenance SIPS, “it will be appropriate to rely on CAIR emission reductions aspermanent and enforceable for certain actions in certain circumstances.’”Sierra Club, at *4-*5 (emphasis in original). The CAIR Memo also allowed the approval of specific proposed state regional haze plans that rely on CAIR standards. Id. at *5.
D.C. Circuit Case and Implications
Petitioners challenged the CAIR Memo on the grounds that it is (1) “a legislative rule that required a notice-and-comment rulemaking process;” and (2) “arbitrary and capricious and contrary to law in allowing regions to rely on temporary emissions reductions from CAIR rather than demonstrating ‘permanent and enforceable’ reductions.” Id. at *6. The court did not reach these arguments because the court determined that petitioners did not have standing.
The petitioners, which were environmental organizations, claimed they had “associational standing” because at least one of their members would have standing to sue, the interests they sought to protect were germane to the organizations’ purposes, and participation of individual members was not required. To show that one member had standing, the petitioners had to show that the member had “(1) suffered an injury in fact that is concrete and particularized, and actual or imminent, not conjectural or hypothetical, (2) the injury is fairly traceable to the challenged action, and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable [judicial] decision. Id. at *8-*9 (internal quotations omitted). The petitioners claimed that two members were located in areas that EPA proposed to re-designate under the CAIR Memo, and those members “fear[ed]” that these areas may no longer achieve NAAQS when CAIR is replaced by another program allowing increased emissions from other states. Because these areas are currently achieving NAAQS, the court determined that these claims were merely speculative and did not support standing. Id. at *14-*15. The other petitioners asserted that they had standing because some of their members visit national parks and under the CAIR Memo, EPA may approve regional haze plans that implement CAIR emissions reductions as an alternative to using best available retrofit technology with the result that greater pollution may be allowed in class I areas including national parks. The court rejected this argument as well: since the CAIR Memo can be interpreted to authorize only one pending haze plan in Connecticut, and none of the petitioners’ members that claimed injury claimed to visit national parks in Connecticut, petitioners have not shown that “one of their members is suffering an injury-in-fact.” Id.
As noted above, the vacatur of the Transport Rule was recently overturned by the U.S. Supreme Court and the case was remanded for further proceedings to consider issues such as whether EPA’s process of imposing federal implementation plans on states with approved SIPs under CAIR (but subsequently disapproved under the Transport Rule) is proper.See EME Homer, 134 S. Ct. at 1609-10. While the ultimate effects of this decision are still unknown pending the D.C. Circuit’s proceedings on remand, the validation of the Transport Rule provides the resolution of nearly a decade of contentious proceedings surrounding interstate air pollution.