Governors' Biofuels Coalition

Law360, New York (October 15, 2015, 7:24 PM ET) — Kansas and Nebraska urged the D.C. Circuit on Wednesday to reject the U.S. Environmental Protection Agency’s stance that its vehicular emissions model is not subject to judicial review, challenging an argument that the official release of the “substantively flawed model” is only a policy statement.

The states cited the EPA’s admission that the model’s official notice “contains language that sounds compulsory” and rejected its contention that it simply paraphrases language in the Clean Air Act and prior regulations in reiterating their call for the D.C. Circuit to grant their petition for review and vacate the model.

The model, called the Motor Vehicle Emissions Simulator or MOVES2014, is aimed at non-California state implementation plans and transportation conformity analyses. The EPA’s October 2014 official notice kicked off a two-year grace period before it must be used in new regional emissions and hot-spot analyses.

“If this court were to adopt EPA’s position, the agency would be able to avoid notice and comment on all its scientific judgments, simply by promulgating broad placeholder rules and then filling in the operative contents later through ‘policy statements’ that are immune to public comment and judicial review,” the brief said. “That is not the law.”

Kansas and Nebraska lodged their request in December and alleged that the vehicular emissions model incorporates several flaws from the fuel effects study on which it is based. The pair have concerns that the study blames ethanol for increased emissions and discourages its use, saying the study manipulated the fuels by adding more toxic components, and it didn’t use actual market fuels.

The states have also argued that the EPA rolled out the model without providing the public an opportunity to comment, in violation of the Administrative Procedure Act, and noted that the official notice does not meet any of the limited exceptions to escape the APA’s requirements. They are joined in their petition by the Energy Future Coalition and Urban Air Initiative.

Still, the EPA has maintained that the model doesn’t constitute a final agency action subject to judicial review or a notice-and-comment rule-making period. Instead, the agency said the model is a nonbinding technical tool, and the states can raise objections in future SIP submissions. The EPA has also argued that Kansas and Nebraska’s standing theories are inadequate — a point the pair moved to address on Wednesday.

“Under current law … the states will be required to submit state implementation plans based on the MOVES2014 model,” the brief said. “The official release of the model thus directly regulates the states, constraining their policy choices and imposing compliance costs, as well as dirtying their air and diminishing their tax revenues.”

A representative for the EPA did not immediately comment on Thursday.

The petitioners are represented by C. Boyden Gray, Adam J. White and Adam R.F. Gustafson of Boyden Gray & Associates. Kansas is also represented by Derek Schmidt, Jeffrey A. Chanay and Burke W. Griggs of the Kansas Attorney General’s Office. Nebraska is also represented by Doug Peterson, Dave Bydalek and Justin D. Lavene of the Nebraska Attorney General’s Office.

The EPA is represented by Justin D. Heminger of the U.S. Department of Justiceand Susmita Duby of the EPA.

The case is State of Kansas et al. v. EPA et al., case number 14-1268, in the U.S. Court of Appeals for the District of Columbia Circuit.

 

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