Wednesday, November 25, 2009

State of North Carolina v. EPA

Nov 24: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1225. The State of North Carolina petitions for review of the final rule of U.S. EPA removing the northern part of the State of Georgia from EPA’s regulations under its national ambient air quality standard (NAAQS) for ozone measured during a one-hour period [See 73 FR 21,528, 4/22/08]. In 1998 EPA called upon several states to revise their state implementation plans (SIPs) for attaining the NAAQS for ozone by reducing emissions of oxides of nitrogen (NOx), a precursor of ozone [63 FR 57,356, 10/27/98, NOx SIP Call].

Following the remand in Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), cert. denied, 532 U.S. 904 (2001), EPA promulgated a rule that included only the northern portion of Georgia in the NOx SIP Call under the one-hour ozone standard [69 FR 21,604, 4/21/04, Remand Rule]. Georgia’s inclusion was based on EPA’s findings in the NOx SIP Call that emissions from Georgia were significantly contributing to non-attainment of the one-hour ozone NAAQS in Birmingham, Alabama and Memphis, Tennessee.

Upon the petition of an industry coalition, an intervenor, EPA reconsidered its inclusion of Georgia in light of its determinations that recently Birmingham, and earlier Memphis, had attained the one-hour ozone standard. North Carolina now challenges the Withdrawal Rule as contrary to EPA policy requiring states’ adherence to NOx emissions budgets based on the one-hour ozone standard after the repeal of the one-hour standard, as nonconformance with the mandate in Michigan v. EPA, and as disparate treatment of Georgia without lawful justification.

The Appeals Court rules, "We do not reach the merits of these contentions because we conclude that North Carolina lacks standing, specifically that North Carolina failed to show redressability." Further, the Appeals Court says, "The Division’s [Georgia Environmental Protection Division] showing in its sur-reply that Georgia intends to use CSP credits to cover its excess emissions thus resolves the question of redressability, for North Carolina can no longer show that vacating the Withdrawal Rule and re-including northern Georgia in the NOx SIP Call is likely to redress North Carolina’s difficulty in meeting the 1997 NAAQS eight-hour
ozone standard. As counsel for North Carolina stated at oral argument, if reinstating Georgia in the NOx SIP Call would not lower Georgia’s emissions, then North Carolina has a standing problem. Accordingly, we dismiss North Carolina’s petition for lack of standing."

Access the complete opinion (
click here).

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