Posted on November 18, 2020 by David Flannery

As I review USEPA’s current proposal to address the Good Neighbor provisions of the Clean Air Act (CAA) with respect to the interstate transport of ozone-related air pollutants  (85 Fed. Reg. 68964; October 30, 2020), I keep recalling the phrase – “If at first you don’t succeed, try, try again.”

USEPA has been addressing the Good Neighbor provision of the CAA over the last 20 years through a number of rulemakings. For a complete history of these various rulemakings see: These rulemakings have included the NOx SIP Call (which addressed the 1979 ozone National Ambient Air Quality Standard (NAAQS)), the Clean Air Interstate Rule (CAIR) (which addressed the 1997 ozone NAAQS), and the Cross-State Air Pollution Rule (CSAPR) (which established the Group 1 Trading Program to address the 1997 ozone NAAQS).

USEPA’s more recent efforts to address the Good Neighbor requirements with respect to the 2008 ozone NAAQS, however, have taken on an added level of complexity with now two failed rulemakings.

The first of these failures involved the CSAPR Update Rule promulgated in 2016. In that rule, USEPA sought to impose short-term emission controls that could be implemented by the start of the 2017 ozone season. The result was the creation of a Group 2 Trading Program to impose a set of emission reductions on electricity generating units in 22 states based upon the optimization of controls that were already installed. On September 13, 2019, the D.C. Circuit remanded the CSAPR Update Rule to USEPA finding that it was a partial rule that did not eliminate all upwind significant contribution to downwind nonattainment or maintenance areas in the attainment year of 2021. Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019).

The second attempt involved the CSAPR “Close Out” Rule promulgated in 2018 in which USEPA found that no additional emissions reductions from upwind states were any longer necessary because USEPA air quality projections for 2023 showed that there were no remining nonattainment or maintenance areas by that date. A mere 18 days after it had remanded the CSAPR Update Rule, the D.C. Circuit vacated the CSAPR Close Out Rule by reaffirming that the attainment date that should have been used by EPA for its analysis was 2021 – not 2023.  New York v. EPA, 781 Fed App’x 4 (D.C. Cir. 2019)

As a result of the remand in the Wisconsin case, USEPA has now proposed the Revised CSAPR Update rule as the third attempt to specify the obligations of upwind states to avoid significantly contributing to downwind air quality nonattainment or interfering with air quality maintenance of the 2008 ozone NAAQS. In an effort to determine a complete remedy in response to the Wisconsin remand, EPA has examined air quality and emission control data in 2021 and has proposed a Group 3 Trading program to impose a new round of emission reductions from electric generating units in 12 states while inviting comments on the possibility of imposing emissions reductions on other source categories.  The comment period on this proposal will close on December 14, 2020.

All of which causes me to recall yet another phrase, as I wonder whether “the third time will be the charm.” 

Waiting for Godot . . . Oops! The Decision’s Finally Out

Posted on August 29, 2012 by Andrea Field

The Cross-State Air Pollution Rule (Transport Rule) [76 Fed. Reg. 48208] adopted by EPA in mid-2011 -- requires sources in the eastern U.S. to reduce their emissions substantially.  Numerous states and industry groups challenged the rule in the D.C. Circuit, and many of the petitioners asked the court to stay the rule pending litigation.  One motions panel of the court stayed the Transport Rule in late 2011, and then a subsequent panel directed that all briefing in the case be completed -- and oral argument be held -- within approximately 100 days after the stay was issued.     

That the case was put on such a tight briefing schedule led many litigants to speculate that the court wanted to resolve the case quickly and would issue its decision within 60 days of the April 13, 2012 oral argument.  When mid-June came and went with no decision, many of those same litigants then predicted the decision would come by mid-July so as not to interfere with the judges’ summer vacations.  In support of their mid-July prediction, they also claimed that the head of EPA’s Air Office, Gina McCarthy, agreed with them.  In early July, Ms. McCarthy had indeed told some state regulators that the court would issue its decision on Friday, July 13, but she had quickly added that her prediction should not be taken too seriously because she had been wrongly predicting the imminent issuance of the decision for the past thirty days.  Nonetheless, several in the media reported her prediction as gospel, prompting all involved to stay glued to the D.C. Circuit’s website on Friday, July 13. 

As one of those waiting for the court to issue its opinion on the Transport Rule, I was reminded of a similar waiting game in which I was involved in 1997.  In May of that year, I had argued a case before a three-judge panel in the Fourth Circuit, where I had found one judge to be sympathetic to my argument, one judge to be antagonistic (but nicely so, because this was the Fourth Circuit after all), and the third judge to be a cipher.  As soon as oral argument ended, my client started bombarding me daily with the same question:  when would the court issue its decision?  I couldn’t answer that question (no matter how often I was asked), but I thought retired Fourth Circuit Judge James Marshall Sprouse might have insights into the court’s decision-making process.  He had been gracious enough  – and patient enough -- to help me prepare for oral argument in my case (and to help me persuade the client to eliminate some of the more bombastic points from the argument).   

Gamely consulting his crystal ball and taking into account that the case had been argued so late in the term, Judge Sprouse suggested that (1) if there was no dissent, then the court might issue its decision by the end of July; (2) if one judge dissented, then there might be a delay of another one to two months; and (3) if each of the three judges wrote a separate opinion or if one of the jurists was trying to be Solomon-esque -- finding areas of agreement and areas of disagreement with each of the other two judges on the panel -- then there might not be a decision until well into the fall.  Judge Sprouse was spot on in my case:  the decision -- which fell into Category 3 -- was issued in late October 1997.

Back to the present now.  The D.C. Circuit issued its decision on the Transport Rule on August 21, 2012.  In an opinion by Judge Brett Kavanaugh, joined by Judge Thomas Griffith, the court held that the Transport Rule exceeds EPA’s statutory authority in two respects, by (1) requiring upwind states to reduce emissions by more than their own significant contributions to nonattainment in other states, and (2) failing to allow states the initial opportunity to implement the emission reductions required by the Transport Rule.  Judge Rogers wrote a stinging dissent.

I leave it to my ACOEL colleague Dave Flannery and his more detailed description of the decision below.  I will add only that although Judge Sprouse passed away eight years ago, the timing of the decision was just what he might have predicted.

Interstate Air Transport Rule Vacated by the D.C. Circuit

Posted on August 28, 2012 by David Flannery

EPA was handed a setback in its efforts to establish aggressive controls on the energy industry in general, and the electric power industry in particular, when the D.C. Circuit issued its August 21, 2012 decision vacating the Cross-State Air Pollution Rule (CSAPR).  EME Homer City Generation LP v. EPA, Case. No. 11-1302.

Significantly, the D.C. Circuit’s order not only vacated and remanded CSAPR, but also directed EPA to continue administering the previously-in-effect Clean Air Interstate Rule (CAIR) pending the promulgation of a valid replacement for CSAPR. 

In a 2 to 1 decision, the court ruled that CSAPR exceeded EPA’s authority in two areas: 

     a.    CSAPR impermissibly required upwind states to reduce more than their “significant contribution” to  downwind non-attainment; and
     b.    CSAPR deprived upwind states of the initial opportunity to implement any required emission reductions by immediately imposing a Federal Implementation Plan. 

Significantly, the opinion of the court sets forth a roadmap for the development of a CSAPR replacement rule. This is accomplished by the court’s establishing “several red lines that cabin EPA’s authority.” In many cases the court offers specific examples of the types of calculations that EPA would have to make in order to determine permissible emission reductions. These “red lines” and example calculations are summarized below: 

     1.    EPA cannot force an upwind state to reduce more than its own contribution to a downwind state minus what level EPA determines to be insignificant. 

Example:  If 3 units were set at the level of insignificance and an upwind state’s contribution to nonattainment in a downwind state is 30 units, then the most reduction that could be required of the upwind state would be 27.

     2.    EPA’s authority to force reductions on upwind states ends at the point where the downwind state achieves attainment.

     3.    The extent to which an upwind state’s contribution is significant depends on the relative contribution to nonattainment of other upwind states.  The obligation to reduce emissions in the upwind states must be allocated “in proportion to the size of their contributions to downwind non-attainment.” 

Example 1:  Assume that the relevant national ambient air quality standard (NAAQS) is 100 units, that the ambient level of the at-issue pollutant in downwind state A is 150 units, and that state A is contributing 90 units to that overall concentration.  Assume also that three upwind states are each contributing 20 units to the total ambient concentration in downwind state A.  Under those circumstances, downwind state A is entitled to at most 50 units of relief -- with the 3 upwind states each contributing 16 2/3 units. 

Example 2:  If the scenario in Example 1 were changed only to the extent that the upwind states contributed 10, 20 and 30 units respectively, the upwind states would be obligated to reduce their contributions by 8 1/3, 16 2/3 and 25 units, respectively. 

Example 3:  If the air quality measurement in Example 1 was 180 units and downwind state A contributed 120 of those units, with 3 upwind states contributing 20 units each, then downwind state A is entitled to at most 60 units of relief to be distributed proportionately among the upwind states.

     4.    EPA may consider costs, but only to further lower an individual state’s emission reduction obligation.  EPA may do this in a way that benefits some upwind states more than others.  The objective of reducing the control obligation of an upwind state would be to prevent exorbitant costs from being imposed on certain upwind states. 

     5.    EPA must ensure that the combined obligations of the various upwind states do not produce more control than necessary for the downwind state to achieve the NAAQS. 

Example:  If state A reduces 5,000 tons of NOx to achieve its largest downwind emission reduction obligation while state B reduces 2,000 tons for the same purpose, and if EPA modeling then shows that “all downwind non-attainment” would be resolved if the combined reduction of the two states were 10% lower, then EPA would be obligated to reduce the emissions reduction obligation of the upwind states by 10%.


The court’s ultimate holding on this aspect of the CSAPR decision is: 

States are obligated to prohibit only those “amounts” of pollution “which will . . . contribute significantly” to downwind attainment problems – and no more.  Because the Transport Rule exceeds those limits, and indeed does not really try to meet those requirements, it cannot stand.

Even as EPA considers its next steps in the wake of the decision, states and regulated sources will begin to focus on how to develop and implement a program to address interstate air quality that satisfies the new ground rules that have been established by the court.

BRIEFING IN COMPLEX CASES: The More You Have To Say, The Fewer Words You May Have To Say It

Posted on January 30, 2012 by Andrea Field

On August 8, 2011, EPA published its very lengthy Cross-State Air Pollution Rule (CSAPR).  An indication of CSAPR’s complexity -- and its unpopularity with those affected by it -- is that its promulgation prompted states, cities, labor unions, industry trade associations, and individual industry sources to submit to EPA 62 requests for administrative reconsideration and to file 45 petitions for judicial review of the rule.  Because CSAPR is a Clean Air Act rule of “nationwide scope and effect,” under § 307(b), the 45 petitions challenging that rule had to be filed in the D.C. Circuit. 

The focus of my article today is not the content of CSAPR (though there is much in the final rule that is a cause for concern), but rather on some of the procedural difficulties faced by large groups of appellants challenging a complex EPA rule in the D.C. Circuit.  In particular, my focus is on the restrictions placed by the court on the number and length of briefs that can be filed in a case that involves 45 aligned petitioners who say they have over 55 substantive issues that they want to raise in their principal briefs. 

Under Rule 28.1(e) of the Federal Rules of Appellate Procedure (FRAP), an “appellant’s principal brief . . . is acceptable if . . . it contains no more than 14,000 words . . ..”  In a case involving only one appellant challenging a simple agency rule, the D.C. Circuit has appropriately interpreted FRAP 28.1(e) as allowing that one appellant to file a principal brief not to exceed 14,000 words.  But what happens when dozens of aligned petitioners challenge an extremely lengthy and complex agency rule?  And what happens when -- fearing the “speak now or forever hold your peace” aspects of Clean Air Act § 307(b) -- those numerous aligned appellants must address scores of different aspects of the final rule? 

In Alabama Power Co. v. Costle, the first complex Clean Air Act case brought in the D.C. Circuit, the court came up with an innovative -- and effective -- way of allowing the aligned petitioners to present their concerns.  In that case, the court’s Chief Staff Counsel oversaw a process that allowed the aligned petitioners to file a joint statement of the case and a reasonable number of separate, reasonable-length issue briefs.  (In an interview with Business Week during the litigation, the three judges hearing that case commented favorably upon the approach that their Chief Staff Counsel had developed.) 
In the decades following the Alabama Power litigation, however -- as the number and complexity of EPA rules has grown, spawning more lawsuits by increasingly larger numbers of appellants -- the D.C. Circuit has taken steps that have reduced substantially the number and length of briefs that parties can file.  Typically, motions panels on the court direct aligned petitioners, even very large numbers of aligned petitioners, to file just one -- or at most two -- 14,000-word briefs.  And perhaps they will allow a short additional brief to be filed by intervenors and amicus curiae in support of petitioners.  But rarely (if ever) will the D.C. Circuit take the hands-on approach that it did in Alabama Power, i.e., being actively involved in figuring out what the key issues are and ensuring that enough space is devoted to the briefing of each such issue.  Thus, it was not a surprise when, on January 18, 2012, the D.C. Circuit issued a briefing order in the CSAPR litigation, authorizing the 45 aligned petitioners to file “no more than two briefs, not to exceed a combined total of 28,000 words” and allowed intervenors and amicus curiae in support of petitioners to file just one joint “not to exceed 7,000 words[.]” 

Most appellants in these kinds of cases understand (and may even empathize with) the desire of the reviewing judges not to have to read dozens of lengthy briefs addressing the inner workings of labyrinthine Clean Air Act programs.  However, as EPA develops ever-more-complex regulatory programs -- programs that, under the terms of Clean Air Act § 307(b),  must be challenged upon promulgation -- petitioners are in a bind.  Aware that there will be a limit on the amount of space they will have in which to explain a challenged EPA program and to articulate why parts of that program are unlawful, petitioners must often choose to brief only a few issues, thus perhaps waiving their rights to challenge other program elements that are of concern. 

Conspiracy theorists among us might be questioning whether court limits on briefing serve as motivation to EPA to make new regulatory programs even more complex.  In particular, such individuals wonder whether EPA rule drafters are now producing more complicated rules because they know that the more complex new rules are, the less likely it is that rule challengers will -- under current court procedures -- be able to present their concerns fully to the reviewing court. 

This surely had to have been in the mind of one attorney who several years ago had to present oral argument in the D.C. Circuit on an issue which had to be briefed in very few words.  During argument, she was told by one of the judges that she might well have a good point, and it was just too bad that the point had not been developed more fully in her brief.  The advocate in that case is to be commended for not losing her cool and condemning a system under which words per petitioner seem to be allocated in inverse proportion to the complexity of the case(s) before the court.  But she was almost certainly thinking something along those lines.

And speaking of lines, I offer the following lines of verse to make this point: 

The rules produced by EPA
Have caused concerns for years.
But parties once thought courts would hear
Their views with open ears.
In complex cases of today,
Those ears are closed, I fear.
It seems the more you want to say,
The less the courts will hear.