States lose to EPA in court fight over emissions model

Source: Robin Bravender, E&E reporter • Posted: Sunday, April 17, 2016

A federal court on Friday shot down states’ challenge to a U.S. EPA model to estimate vehicle emissions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected the challenge from Kansas and Nebraska, finding that the states didn’t sufficiently show they were harmed by EPA’s model and therefore didn’t have legal “standing” to sue.

“Petitioners have not satisfied their burden at this stage in the litigation,” said the judgment issued by the court today dismissing the states’ petition.

Kansas and Nebraska, along with two nonprofit groups, argued that EPA’s model was illegal because the agency failed to give the public notice and an opportunity to comment before requiring states to use it to demonstrate they’re in compliance with air pollution laws.

EPA’s model, titled the Motor Vehicle Emissions Simulator for 2014 (MOVES2014), “compelled states implementing the agency’s air quality standards to use a vehicular emissions model so deeply flawed that its ethanol-related estimates reflect the opposite of what happens in reality,” the states and nonprofits told the judges in a brief. They argued that the model was “arbitrary and capricious” and should be rejected.

But the judges sided with EPA, which had urged the court to dismiss the case on procedural grounds because the states and groups failed to demonstrate standing by showing they’d been threatened with imminent and concrete injury.

Kansas and Nebraska said certain areas within their states may be in nonattainment with the ozone air pollution standard EPA set in October. But EPA won’t make initial attainment designations until October 2017, and initial data show ozone levels in Kansas and Nebraska won’t exceed those limits.

“The future injury in question here is the likelihood of state petitioners’ nonattainment designations; without such designations, they will not have to use MOVES2014” to develop state cleanup plans, the judges said. “With the only evidence showing no impending nonattainment designation, petitioners’ primary standing theory fails.”

The nonprofit petitioners — the Energy Future Coalition and Urban Air Initiative Inc. — had offered no argument or evidence for why they independently had standing to sue, the court said.

The judgment was issued by two Democratic appointees — Judges Patricia Millett and Robert Wilkins — and Senior Judge A. Raymond Randolph, a Republican appointee.

Click here to read the court’s order.