Urban Air Initiative calls court decision on MOVES Model a temporary setback

Source: By Kim Trinchet, Urban Air Initiative • Posted: Thursday, April 21, 2016

Colwich, KS, April 20, 2016:  The effort to stop the U.S. Environmental Protection Agency (EPA) from implementing a model that unfairly blames ethanol for increased emissions hit a “temporary setback”, according to officials from the Urban Air Initiative (UAI) in response to action by the U.S Court of Appeals for the D.C. Circuit.

Last week the court dismissed the lawsuit filed by UAI along with the State of Kansas, the State of Nebraska, and the Energy Future Coalition to require EPA to stop the Motor Vehicle Emissions Simulator for 2014 (MOVES2014 Model) from being implemented. The court dismissed the petition on grounds that Kansas and Nebraska do not yet have standing to challenge the computer model, which states are required to use to meet air quality standards.

The Court did not rule on the claims that the model’s estimates of ethanol’s emissions effects are fundamentally flawed and that EPA failed to invite and consider public comment on the model as required by the Administrative Procedure Act.

Instead, the Court held that the States had not “at this point in time” demonstrated the required “injury” to establish a “case or controversy” that federal courts may resolve, because Kansas and Nebraska are not yet required to use the model. Only States designated as being in “nonattainment” with EPA’s National Ambient Air Quality Standards (NAAQS) are required to develop state implementation plans (SIPs) based on MOVES2014.

UAI president David VanderGriend noted that the Court also acknowledged that the States’ standing barrier may be temporary and that “a factual development, such as a nonattainment designation” would allow the Court to consider the States’ challenge to MOVES2014 in the future.

“In what seems like twisted logic, the States are prevented from attempting to get ahead of an expensive problem they know they will eventually experience because of new ozone standards,” said Mr. Vander Griend.  “However, this is simply a delay, a temporary setback. The court left open the opportunity to hear the case in the future. With science on our side, we will continue to work towards getting the model stopped and improved in order to give ethanol a fair chance in the marketplace.”

According to attorney Adam Gustafson with Boyden Gray and Associates, this ruling preserves the Court’s ability to strike down the model in a subsequent case. If the parties had not filed suit when they did, there’s a chance that a later challenge would have been dismissed because it would have been deemed too late to file. But after last week’s decision, it is now clear that a State will have standing to challenge MOVES2014 after its air quality data makes its nonattainment status clear.

UAI believes that when the Court does consider their arguments, it will agree that EPA was required to give public notice and an opportunity for comment on the new model—as it has done in the past—before forcing the States to use it.