U.S. Appeals Court Dismisses States’ Challenges to EPA MOVES Model

Source: By Jeff Barber, OPIS • Posted: Wednesday, April 20, 2016

The U.S. Court of Appeals for the District of Columbia Circuit on Friday dismissed a lawsuit filed by two Midwest states and two ethanol organizations challenging a computer model the Environmental Protection Agency uses to estimate motor vehicle emissions, saying the parties have no standing because they failed to show that the model has caused them harm.

The attorneys general for Kansas and Nebraska, joined by the Urban Air Initiative and the Energy Future Coalition, filed suit in late 2014 challenging EPA regulations they claimed would force states to use a flawed method to measure emissions from ethanol-blended fuels.

The plaintiffs argued that the computer model used by the agency, known as the Motor Vehicle Emissions Simulator for 2014 (MOVES2014), was based on “faulty and incomplete data” and “inaccurately blames ethanol for increased air pollution.”

MOVES2014 affects ethanol blending because it must be included this year in emissions calculations states use in their State Implementation Plants (SIPs), which are used to show they are in compliance with National Ambient Air Quality Standards (NAAQS). But because MOVES2014 indicates that higher ethanol blends raise emissions of NAAQS pollutants, such as particulates, nitrous oxides and total hydrocarbons, the plaintiffs claimed the model will discourage blending above the 10% level widely in use today.

In dismissing the petition, the court found that the plaintiffs lack standing because they had failed to demonstrate the regulations had injured them.

“We first address petitioners’ standing and, finding none, have no occasion to reach the merits of the case. Petitioners’ standing primarily turns on whether parts of Kansas and Nebraska will exceed EPA’s latest [NAAQS] … concerning the maximum permissible concentration levels for ozone in the air.”

Kansas and Nebraska, the court said, “maintain that they will soon be in nonattainment for ozone and therefore will be required to develop SIPs, and in doing so must use the MOVES2014 model, which will injure them in several different ways.”

But the court said the states’ claims involve alleged “future injuries,” under which plaintiffs face a “significantly more rigorous burden to establish standing.”

The future injury “in question here is the likelihood of state petitioners’
nonattainment designations; without such designations, they will not have to uses MOVES2014 to develop nonattainment SIPs,” the court said.

The court added that much of the data that Kansas and Nebraska will use to determine if they will need to develop SIPs “does not yet exist.” EPA, the court said, plans to use data from 2014 through 2016 for the initial area designation decision that will be made in October 2017, but the data that is available and final — so far only for 2014 — shows that Kansas and Nebraska’s ozone levels will not exceed the NAAQS.”

The appeals court also dispensed with petitioners’ secondary standing claims, calling them “similarly too speculative.”

“Petitioners maintain that some unidentified ‘neighboring states’ will use MOVES2014, which will lead those states to limit ethanol blending in their fuels, which ‘may’ increase emissions of harmful pollutants, and therefore damage the health and welfare of the citizens of Kansas and Nebraska. …
Equally hypothetical is the petitioners’ belief that other states’ use of the model will lead to a nationwide decrease in demand for ethanol, thereby depressing the price of ethanol, and then the corn from which it is made, which will decrease Kansas and Nebraska’s tax revenue.”

Although the petitioners “focus on convincing us that decreased air quality and lost tax revenue are cognizable injuries, they miss the point that they have not provided the requisite evidence of these pernicious effects to survive the summary judgment standard. The ways in which they claim MOVES2014 injures them are far too remote, at least at this point in time.”

An EPA spokesman said MOVES “is a state-of-the-science emission modeling system that estimates emissions for mobile sources at the national, county and project level for criteria pollutants, greenhouse gases and air toxics. EPA is pleased with the court’s decision to dismiss the case,” and added that the agency “uses the best science and information available to inform our models and we will continue this practice with the MOVES model going forward.”

In a Monday statement, the Urban Air Initiative called the court’s ruling a “temporary setback,” saying that it means that Kansas and Nebraska “will have to wait until they (or another state) are in nonattainment with the new ozone standard before the court will consider the merits of their challenge to the
MOVES2014 model.”

“That could happen as soon as October … when the states submit their proposed nonattainment designations to EPA. UAI is confident that when the court does consider petitioners’ arguments, it will agree that EPA was required to give public notice and an opportunity for public comment on the model before forcing it on the states. The MOVES2014 model is rife with well-document errors that EPA would have been required to correct through the ordinary notice-and-comment process that it has used for vehicle emissions models in the past,” the organization added.

Jennifer Rapp, a spokeswoman for Kansas Attorney General Derek Schmidt, said the AG’s office “is disappointed at the court’s holding that states lack standing to bring this much-needed challenge. We will review the decision carefully to determine next steps.” Nebraska Attorney General Doug Peterson’s office on Monday said he had no comment on the ruling at this time.