Last week, New York, Maryland, New Hampshire, Rhode Island, Vermont, and Massachusetts filed a joint motion with the D.C. Circuit, seeking to intervene in Wisconsin v. EPA and requesting prompt implementation of the EPA’s Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS (CSAPR Update). The states’ joint motion is the latest filing in litigation challenging EPA’s September 2016 CSAPR Update, which sets new summer-time nitrogen oxide (NOx) emissions budgets for 22 eastern states.
Since the Update was published in the Federal Register, states, industry groups, and environmental groups have filed sixteen petitions for review which have since been consolidated. Wisconsin, the named petitioner in the lead case, filed a non-binding statement of issues on December 29, 2016, arguing that EPA: (1) made unjustified assumptions in modeling ozone levels, (2) failed to properly account for ozone contributions emanating from other countries, (3) violated the Good Neighbor Provision by applying the same treatment to maintenance areas as non-attainment areas, (4) failed to provide adequate relief for downwind states that can’t comply with National Ambient Air Quality Standards (NAAQS) due to ozone generated outside their borders, and (5) impermissibly established a baseline for good neighbor determinations in Western States.
The Northeast State intervenors argue that they have “a direct and substantial interest” in upholding the CSAPR Update. They allege that their states have been unable to meet ozone NAAQS despite imposing air quality standards more stringent than those required by federal law. Those initiatives have been insufficient in large part, they argue, because of pollution from upwind sources. The states contend that the CSAPR Update will significantly improve air quality, and materially assist their efforts to comply with the “health-protecting NAAQS.” Any decision invalidating the rule, they conclude, would deny them the upwind pollution reductions needed to assist in meeting their legal obligations under the Clean Air Act.
The American Lung Association, Appalachian Mountain Club, Environmental Defense Fund, and Sierra Club also filed a joint motion to intervene on December 23, 2016, citing a reduction in ambient ozone concentrations as a “major human health imperative.” They argue that weakening or vacating the CSAPR Update would threaten the health of the organizations’ members, as well as diminish their use and enjoyment of their property and natural resources.
A full list of parties is provided below.
Petitions for Review of CSPAR Update:
| Party(ies) | Case No. |
| (LEAD CASE) States of Wisconsin, Alabama, Arkansas, Ohio, and Wyoming | 16-1406 |
| State of Texas, Texas Commission on Environmental Quality | 16-1428 |
| Murray Energy Corporation | 16-1429 |
| Western Farmers Electric Cooperative | 16-1432 |
| Utility Air Regulatory Group* | 16-1435 |
| Midwest Ozone Group | 16-1436 |
| Indiana Energy Association, Indiana Utility Group | 16-1437 |
| City of Ames, Iowa | 16-1438 |
| Luminant Generation Company, LLC; Big Brown Power Company, LLC; Luminant Mining Company, LLC; La Frontera Holdings, LLC; Oak Grove Management Company, LLC; Sandow Power Company, LLC | 16-1439 |
| Mississippi Power Company | 16-1440 |
| The Ohio Utility Group; AEP Generation Resources Inc.; Buckeye Power, Inc.; The Dayton Power and Light Company; Duke Energy Ohio, Inc.; Dynergy Commercial Asset Management, LLC; First Energy Solutions; Ohio Valley Electric Corporation | 16-1441 |
| Wisconsin Paper Council, Wisconsin Manufacturers and Commerce, Wisconsin Industrial Energy Group, Wisconsin Cast Metals Association | 16-1442 |
| Sierra Club, Appalachian Mountain Club | 16-1443 |
| Oklahoma Gas and Electric Company | 16-1444 |
| Prairie State Generating Company, LLC | 16-1445 |
| State of Delaware Department of Natural Resources & Environmental Control | 16-1448 |
Intervenors in Support of Petitioners in 16-1406 et al.:**
Murray Energy Corporation
Intervenors in Support of Respondent-EPA in 16-1406 et al.:
American Lung Association
Appalachian Mountain Club
Environmental Defense Fund
Sierra Club
Movant-Intervenors in Support of Respondent-EPA in 16-1406 et al.:
Commonwealth of Massachusetts***
Environmental Committee of the Florida Electric Power Coordinating Group, Inc.
State of Maryland***
State of New Hampshire***
State of New York***
State of Rhode Island***
State of Vermont***
* Utility Air Regulatory Group also moved to intervene in support of respondent in Case No. 16-1443 (Sierra Club v. EPA) and No. 16-1448 (Del. Dep’t of Nat. Res. & Envtl. Control v. EPA). They also filed a separate petition for review of EPA’s final rule providing notice of the availability of data on NOX allowance obligations in Case No. 16-1410. That case has been consolidated with the Wisconsin v. EPA proceedings in docket 16-1406.
** Cedar Falls Utilities has moved to intervene pending a determination EPA’s motion to dismiss or transfer Cedar Falls Utilities’ Eighth Circuit CSAPR Update Petition for Review.
*** Excluding Case No. 16-1443 (Sierra Club v. EPA) or No. 16-1448 (Del. Dep’t of Nat. Res. & Envtl. Control v. EPA).
