United States Court of Appeals, District of Columbia Circuit
Argued May 6, 2014.
On Petition for Review of Final Action of the United States Environmental Protection Agency.
Thomas Cmar argued the cause for petitioners. With him on the briefs were Abigail Dillen and Jocelyn D'Ambrosio.
Norman L. Rave Jr., Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief was Robert G. Dreher, Acting Assistant Attorney General.
Norman W. Fichthorn argued the cause for intervenors. With him on the brief were E. Carter Chandler Clements, Aaron M. Flynn, and Leslie S. Ritts.
Before: HENDERSON, ROGERS and TATEL, Circuit Judges. Opinion for the court filed by Circuit Judge ROGERS, with whom Judge Henderson and Judge Tatel join.
Rogers, Circuit Judge :
On November 19, 2012, the Assistant Administrator of the Environmental Protection Agency issued a memorandum to regional directors on the " Next Steps for Pending Redesignation Requests and State Implementation Plan Actions Affected by the Recent Court Decision Vacating the 2011 Cross-State Air Pollution Rule." The Memorandum stated that certain pending state submissions could proceed based on emissions reductions under a rule this court had invalidated but temporarily left in effect pending its replacement. Petitioners challenge the Memorandum on procedural and substantive grounds. The court lacks jurisdiction to consider their challenge because petitioners fail to show they suffer injury that is imminent or certain as a result of the Memorandum, and therefore they lack standing to sue. Accordingly, we dismiss the petition for review.
The Clean Air Act (" CAA" ), 42 U.S.C. § 7410(a)(1), requires each State to submit for approval by the EPA an implementation plan (" SIP" ) specifying how national primary and secondary ambient air quality standards (" NAAQS" ) will be implemented and maintained within the State. To redesignate an area from non-attainment to attainment of the applicable NAAQS, EPA must determine that " the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions." Id. § 7407(d)(3)(E)(iii) (emphasis added). In States containing " mandatory class I Federal areas," such as national parks and wilderness areas, the SIP must include such " measures as may be necessary to make reasonable progress toward meeting the national goal" of remedying impairment of visibility caused by manmade pollution, including requiring that certain emitting sources use the " best available retrofit technology" (" BART" ) to control emissions, and a 10-15 year strategy for making reasonable progress. Id. § 7491(a), (b)(2). EPA regulations allow an " emissions trading program or other alternative" to BART so long as the alternative " achieve[s] greater reasonable progress" than BART. 40 C.F.R. § 51.308(e)(2).
Under the CAA's good-neighbor provision, 42 U.S.C. § 7410(a)(2)(D)(i)(I), a SIP must also include " adequate provisions" prohibiting emissions activity within the State from " contribut[ing] significantly to nonattainment in, or interfer[ing] with maintenance by, any other State with respect to any such [NAAQS]." The Clean Air Interstate Rule (" CAIR" ), 70 Fed. Reg. 25,162 (May 12, 2005), was designed to carry out the good-neighbor provision. It was initially vacated by this court in North Carolina v. EPA, 531 F.3d 896, 929-30, 382 U.S.App. D.C. 167 (D.C. Cir. 2008), but, upon reconsideration, was " allow[ed] . . . to remain in effect until it is replaced by a rule consistent with our opinion [because this] would at least temporarily preserve the environmental values covered by CAIR," North Carolina v. EPA, 550 F.3d 1176, 1178, 384 U.S.App. D.C. 70 (D.C. Cir. 2008); see also id. at 1178-79 (Rogers, J., concurring in granting rehearing in part). The subsequent Cross-State Air Pollution Rule (the " Transport Rule" ), 76 Fed. Reg. 48,208 (Aug. 8, 2011), was to replace CAIR, but it was also vacated by this court, see EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38, 402 U.S.App. D.C. 383 (D.C. Cir. 2012), cert. granted, 133 S.Ct. 2857, 186 L.Ed.2d 907 (2013); see also id. at 38-61 (Rogers, J., dissenting). The court instructed " EPA [to] continue administering CAIR pending the promulgation of a valid replacement," id. at 38 (majority opinion).
The Memorandum of November 19, 2012, " communicate[d] . . . [EPA's] intent with regard to a range of actions potentially affected by" this court's decision in EME Homer City . Mem. at 1. It stated that " [c]ertain state submittals awaiting approval . . . may be partly dependent on the assurance of ongoing regional NOx and SO2 emission reductions" based on " the expectation that [the Transport Rule] . . . would be fully implemented." Id. With regard to pending " attainment SIPs, redesignation requests, and associated maintenance SIPs," the Memorandum stated that " based on th[e] direction from the Court [in EME Homer City to 'continue administering CAIR'], . . . it will be appropriate to rely on ...