IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT EME HOMER CITY GENERATION, L.P., ) ) Petitioner, ) ) v. ) No. 11-1302 (and ) consolidated cases) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, et al., ) ) Respondents. )

______________________ ___________________) EPA’S CONSOLIDATED OPPO SITION TO REMAINING

MOTIONS FOR STAY PENDING JUDICIAL REVIEW OF EPA’S TRANSPORT RULE
IGNACIA S. MORENO Assistant Attorney General DAVID S. GUALTIERI JON M. LIPSHULTZ JESSICA O’DONNELL NORMAN L. RAVE Environmental Defense Section Environment and Natural Resources Div. United States Department of Justice P.O. Box 23986 Washington, DC 20026-3986 (202) 514-4767
OF COUNSEL SONJA RODMAN BYRON BROWN STEPHANIE HOGAN United States Environmental Protection Agency 1200 Pennsylvania Ave., N.W. Washington, DC 20460 DATED: December 1, 2011 USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 1 of 84ii TABLE OF CONTENTS
TABLE OF AUT HORITIES ....................................................................................... iii
INTRODUCTI ON ....................................................................................................... 2 BACKGROU ND ......................................................................................................... 3 STANDARD OF REVIEW ......................................................................................... 10 SUMMARY OF AR GUMENT ................................................................................... 11 ARGUMENT ............................................................................................................... 19 I. PETITIONERS HAVE NO LIKELIHOOD OF SUCCE SS ON THE MERITS ............................................................................................. 19
A. EPA Has Statutory Aut hority to Promulgate the Transport Rule FIPs. ............................................................................... 19 B. EPA Used an Appropriate A pproach For Defining the Amount of Each State’s Significant C ontribution. ............................ 24
C. EPA Gave Adequate Notice of the Final B udgets... ............................... 32 D. EPA Properly Based Its Identification of Downwind Nonattainment an d Maintenance Areas on Air

Quality Modeling. ................................................................................... 38 E. EPA Adequately Cons idered Transmission Constraints and Localized Grid Reliability Issues. ................................ 42
F. The Budgets for the Stat e of Wisconsin Are Not in Error ..................................................................................................... .... 47 G. The Transport Rule Reasona bly Applies to Emissions in 2012.................................................................................................... .. 48 USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 2 of 84iii II. THE PETITIONERS WILL NOT BE IRREPARABLY HARMED ABSE NT A STAY OF THE RULE ............................................... 52 A. No Petitioner Has Show n a Realistic, Let Alone Imminent, Threat to Reliable Electricity Generation. ............................. 53 B. Incurring Additional Econo mic Costs to Comply With the Rule Does Not C onstitute Irreparable Injury. .......................... 66
III. A STAY WOULD HARM THIRD PARTIES AND IS CO NTRARY TO THE PUBL IC INTEREST ................................................... 69 A. Staying the Rule and Leav ing CAIR in Place Pending Judicial Review Would Deprive the Public of Substantial Air Quality a nd Health Ben efits. .......................................... 70 B. EPA’s Revisions Proposal Has No Bearing on Whether a Stay is in the Public In terest. ................................................................ 74 CONCLUSI ON ............................................................................................................ 75 ATTACHMENTS Attach. No. Declaration of Sam Napolitano (Dec. 1, 2011) 1 Status of CAA 110(a)(2)(D )(i)(I) SIPs Final Rule TSD (July 2011), EPA-HQ-OAR-2009-0491-4527 2 Declaration of Brian S. Timin (Dec. 1, 2011) 3 Comment by Entergy Servs., Inc. (Oct. 1, 2010), EPA-HQ-OAR -2009-0491-2847 (excerpts) 4 Resource Adequacy and Rel iability in the IPM Projections for the Transport Rule TSD (June 2011), EP A-HQ-OAR-2009-0491-4455.1 5 Transport Rule Primary Response to Comments (June 2011), EPA-HQOAR-2009-0491-4513 (excerpts) 6 USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 3 of 84iv TABLE OF AUTHORITIES CASES: A.O. Smith Corp. v. FTC , 530 F.2d 515 (3d Cir. 1976) ............................................................................... 11, 66 American Coke & Coal Chems. Inst. v. EPA , 452 F.3d 930 (D.C. Ci r. 2006) ........................................................................... 32, 35 American Hospital Ass’n v. Harris , 625 F.2d 1328 (7th Ci r. 1980) ........................................................................... 11, 66 Appalachian Power Co. v. EPA , 249 F.3d 1032 (D.C. Cir. 2001) ............................................................................... 44 Auer v. Robbins , 519 U.S. 452 (19 97) ................................................................................................. 10 Chevron U.S.A., Inc. v. NRDC , 467 U.S. 837 (19 84) ................................................................................................. 10 Center for Biological Diversity v. DOI , 563 F.3d 466 (D.C. Cir. 2009) ................................................................................. 68
Cuomo v. NRC , 772 F.2d 972 (D.C. Cir. 1985) ..................................................................... 10, 11, 63 *Michigan v. EPA , 213 F.3d 663 (D.C. Cir. 2000) ............................................ 6, 7, 8, 22, 28, 29, 30, 39 Motor Vehicle Mfrs. Ass’n v. St ate Farm Mut. Auto. Ins. Co. , 463 U.S. 29 (198 3) ................................................................................................... 10 Northeast Md. Waste Disposal Auth. v. EPA , 358 F.3d 936 (D.C. Cir. 2004) ................................................................................. 36

_______________ *Authorities upon which we chiefly rely. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 4 of 84v Nken v. Holder , 129 S. Ct. 1749 (200 9) ....................................................................................... 10, 11 *North Carolina v. EPA , 531 F.3d 896 (D.C. Cir. ), on reh’g in part , 550 F.3d 1176 (D.C. Cir. 2008 ) .................................................... 8, 9, 13, 28, 30, 39, 40, 49, 62, 73 *North Carolina v. EPA , 550 F.3d 1176 (D.C. Cir. 2008) ....................................................................... 8, 9, 49 Small Refiner Lead Phase-Down Task Force v. EPA , 705 F.2d 506 (D.C. Cir. 1983) ................................................................................. 35 United States v. Michigan , 940 F.2d 143, 164-66 (6 th Cir. 1991) ...................................................................... 55 Virginia v. EPA , 108 F.3d 1397 (D.C. Cir.), modified on other grounds , 116 F.3d 499 (D.C. Cir. 1997) ................................................................................. 22 Winter v. NRDC , 555 U.S. 7 ( 2008) ..................................................................................................... 11 *Wisconsin Gas Co. v. FERC , 758 F.2d 669 (D.C. Cir. 1985) .........................................................11, 65, 66, 67, 68 STATUTES: Clean Air Act, 42 U.S.C. §§ 7401-7671q: 42 U.S.C. § 1857c-5(a )(2)(E) (1 970) ......................................................................... 5 Sections 108-109, 42 U.S.C. §§ 7408, 7409 .............................................................. 4 Section 110(a), 42 U.S.C. § 7410(a) ........................................................................ 4 Section 110(a)(1), (k)(2), (3), 42 U.S .C. § 7410(a)(1), (k)(2), (3) .......................... 21 Section 110(a)(2)(D), 42 U.S.C. § 7410(a) (2)(D) ..................................................... 6 USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 5 of 84vi Section 110(a)(2)(D)(i)(I), 42 U.S .C. § 7410(a)(2)( D)(i)(I) .................................... 28 Section 110(a)(2)(D)(i)(I), 42 U.S.C . § 7410(a)(2)(D )(i)(I) (1990) .......................... 6 Section 110(a)(2)(E), 42 U.S.C. § 7410(a)(2)(E) ( 1977) ...................................... 5, 6 Section 110(c)(1), 42 U.S.C . § 7410(c)(1) .................................................... 4, 20, 21 Section 110(k)(5), 42 U.S .C. § 7410(k)( 5) .............................................................. 20 Section 307(d)(8), 42 U.S.C . § 7607(d)(8) ........................................................ 11, 15 Section 307(d)(9)(A), 42 U.S .C. § 7607(d)(9 )(A) ................................................... 10 FEDERAL REGISTERS: 62 Fed. Reg. 60,318 (Nov. 7, 1997)........................................................................... 7 63 Fed. Reg. 57,356 (Oct. 27, 1998) .......................................................................... 7 70 Fed. Reg. 21,147 (A pr. 25, 2005) ....................................................................... 21 70 Fed. Reg. 25,162 (M ay 12, 2 005) ......................................................................... 8 71 Fed. Reg. 25,328 (A pr. 28, 2006) ....................................................................... 21 75 Fed. Reg. 53,613 (Sept. 1, 2010) ............................................................ 33, 34, 43 75 Fed. Reg. 66,055 (O ct. 27, 2010) ........................................................................ 33 76 Fed. Reg. 1109 (Jan . 7, 2011) ....................................................................... 33, 34 76 Fed. Reg. 40,662 (J uly 11, 2 011) ........................................................................ 38 76 Fed. Reg. 48,208 (Aug. 8, 2011)............ 2, 9, 10, 23-26, 28, 30, 31, 33, 37-41, 45 49-51, 55, 60, 63,67, 68, 70 76 Fed. Reg. 63,860 (Oct . 14, 2011) .................................................................. 55, 75 USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 6 of 84vii LEGISLATIVE MATERIALS: H.R. Rep. No. 95-294 (1977), reprinted in 4 A Legislative History of the Clean Air Act Amendments of 1977 (Comm. Print 1978) (“1977 Legis. Hist.”) .................................................................................................. 5 S. Rep. No. 95-127, reprinted in 3 1977 Legis. Hist. 1415 ....................................... 5 S. Rep. No. 101-228 (1989), reprinted in 5 Legislative History of the Clean Air Act Amendments of 1990 (“1990 Legis. Hist.”) ................................................. 6 S. Debate on H.R. Conf. Rep. No . 101-952 (1990), reprinted in 1 1990 Legis. Hist . at 1106 .................................................................................................... 6 USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 7 of 84Pursuant to the Court’s Orders of November 14 and 28, 2011, Respondent United States Environmental Protection Agency (“EPA”) hereby opposes the ten motions for a stay pending judicial re view filed in Nos. 11-1360, 11-1363, 11- 1372, 11-1373, 11-1374, 11-1378, 11-13 79, 11-1392, 11-1 393, and 11-1394, 1 and responds to the seven responses in support of motions for a stay pending judicial review filed in Nos. 11-1329 and 11-1364. 2 For the reasons discussed herein, as well as in EPA’s prior responses, all the stay motions should be denied.

1 The referenced stay motions ar e: (1) No. 11-1373, Environmental Committee of the Florida Electric Power Coordinati ng Group (document 1335573) (filed Oct. 14, 2011) (“FL Utils. Mot.”) ; (2) No. 11-1379, Municipal Electric Authority of Georgia (document 1335586 ) (filed Oct. 14, 2011) (“GA Utils. Mot.”); (3) No. 11-1374, Kansas City Board of Public Utilities (document 1337158) (filed Oct. 21, 2011 ) (“KS Utils. Mot.”); (4) No. 11-1378, Ames, Iowa (document 1337266) (filed Oc t. 24, 2011) (“Ames Mot.”); (5) No. 11-1393, Wisconsin (document 1337415) (filed Oct. 24, 2011) (“WI Mot.”); (6) No. 11- 1394, Dairyland Power Coop. (docum ent 1337439) (filed Oct. 24, 2011) (“Dairyland Mot.”); (7) No. 11-1360, En tergy Corp. (document 1338085) (filed Oct. 26, 2011) (“Entergy Mot.”); (8) No . 11-1363, Wisconsin Elec. Power Corp. (document 1339374) (filed Nov. 1, 2011) (“ We Energies Mot.”), (9) No. 11-1392, Ohio (document 1342027) (as re-filed Nov. 15, 2011) (“OH Mot.”); (10) No. 11- 1372, Indiana (document 1341729 (filed Nov. 14, 2011) (“IN Mot.”). 2 The referenced responses are: (1 ) Michigan (document 1337338) (filed Oct. 24, 2011) (“MI Resp.”); (2) Georgia (document 1339038) (filed Oct. 31, 2011) (“GA Resp.”); (3) Southern Company, et al. (document 1339073) (filed Oct. 31, 2011) (“Southern Co. Resp.”); (4) Al abama, Mississippi, et al. (document 1339054) (filed Oct. 31, 2011 ) (“AL/MS Resp.”); (5) the Utility Air Regulatory Group (document 1338754) (filed Oct. 31, 2011) (“UARG Resp.”); (6) Putnam County Georgia (Amicus) (document 1339074) (filed Oct. 31, 2011) (“Putnam Amicus Resp.”); and (7) American Elec tric Power (documen t 1340481) (filed Nov. 7, 2011) (“AEP Resp.”). USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 8 of 842 INTRODUCTION These consolidated petitions for revi ew challenge EPA’s Cross-State Air Pollution Rule, informally referred to herein as the “Transport Rule.” 3 The Transport Rule builds on the success of prior actions EPA has taken since the 1990s to address the interstate transport of air pollutants, a very serious -- and previously somewhat intractable -- public health and welfare issue. The rule focuses on control of emissions of nitr ogen oxides (“NOx”) and sulfur dioxide (“SO 2 ”) to address interstate contributio ns to nonattainment of (and difficulties maintaining) the national ambient air quality standards (“NAAQS”) for ozone and fine particulate matter (“PM 2.5 ” 4 ), two widespread air pollution problems that cause a variety of serious health effects (such as bronchitis, asthma, heart attacks, and death). The Transport Rule will achieve dramatic h ealth benefits for over 240 million people living in the eastern half of the United States. 5

3 The final rule was publicly released in July 2011 and published in August 2011. See 76 Fed. Reg. 48,208 (Aug. 8, 2011); see generally http://www.epa.gov/airtransport/actions.html

. 4 The “ 2.5 ” in this acronym refers to the size of fine particulate matter, i.e. , 2.5 microns or less. Other EPA regulations, not at issue here, address relatively more coarse particulate matter up to 10 microns (“PM 10 ”). 5 See 76 Fed. Reg. at 48,308-10 (1 in 20 de aths in the U.S. is attributable to PM 2.5 and ozone exposure). The PM 2.5 aspects of the Trans port Rule will, based on 2014 modeling, annually reduce betwee n 13,000 and 34,000 deaths, 15,000 nonfatal heart attacks, 8,700 incidences of chronic bronchitis, 8,500 hospital admissions, and 400,000 cases of aggrav ated asthma; ozone aspects of the Transport Rule will reduce, during the summer ozone season, 27-120 premature USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 9 of 843 States and utilities whose “upwind” emissions of NOx and SO 2 have been documented by EPA to contribute to “downwind” ozone and PM 2.5 pollution problems in other States have now filed nineteen motions 6 to stay the Transport Rule pending judicial review on the mer its, claiming, among other things, that if not stayed, the rule will cause them immine nt and irreparable harm that they could not possibly have antici pated or planned for. 7 As EPA has explained in the nine responses it has filed to date, and as will be further explained herein, these allegations are meritless and, as a whole, represent little more than an unjustified attempt by these States and utilities to ev ade their long-overdue obligations under the Clean Air Act (“CAA” or “Act”). BACKGROUND One of the most important components of the Act is the establishment of NAAQS by EPA. These are science-based standards that set limits on certain

deaths, 240 hospital admissions for resp iratory problems, 86 emergency room admissions for asthma, 160,000 days of re stricted activity for individuals, and 51,000 days of school absences for children). 6 We generally refer herein to the nine stay motions to which EPA previously responded simply as the “[Na me of Party] Motion.” 7 Of course, the terms “upwind” and “downwind” are somewhat imprecise, since most “upwind” contributors to pol lution problems in downwind States are themselves affected by emissions transp orted from other Stat es, and many have nonattainment or mainte nance problems of their own. In fact, as explained herein, the overlapping and criss-crossing nature of pollution contribution linkages is part of the reason why the determination of ea ch State’s “significant contribution” is best made using a mixed air quality and cost approach. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 10 of 844 pollutants in the ambient air that EPA de termines are requisite to protect public health and welfare. See 42 U.S.C. §§ 7408, 7409. States then have the responsibility to adopt state implementati on plans -- “SIPs” -- to maintain good air quality in “attainment” areas and to brin g “nonattainment” areas into compliance with the NAAQS. Id. § 7410(a). If States do not, EPA must adopt a federal implementation plan -- or “FIP” -- to address these deficiencies. Id. § 7410(c)(1). A significant confounding factor in th is regulatory process is that NAAQS nonattainment and main tenance problems in many States are in part caused by emissions transported from other States, often over vast distances. This is particularly true for ozone and PM 2.5 , which are the two NAAQS pollutants central to the Transport Rule. Wh en a State’s pollution problems are caused in part by unchecked emissions from neighboring States , it means that the “downwind” State must regulate its own emissions sources mu ch more stringently to compensate, and in some cases, there is no feasible action the downwind State can take on its own to attain and maintain the NA AQS. Absent effective fe deral control, individual States often have little economic or political incentive to impose regulatory controls (and attendant costs) on pollution sources within their States solely to address air quality problems in downwind States. Congress recognized and expressly addressed these issues from the outset. In the 1970 version of the Act, Congress required all SIPs to have provisions for USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 11 of 845 “intergovernmental cooperation” to assure their emissions would not interfere with attainment or maintenance of the NAAQS in other States. 42 U.S.C. § 1857c5(a)(2)(E) (1970). When this “cooperatio n” approach proved in effective, Congress amended the statute in 1977 to require, mo re directly, that all SIPs contain provisions prohibiting emissions from par ticular stationary sources that “will prevent” attainment or ma intenance of the NAAQS in downwind States. 42 U.S.C. § 7410(a)(2)(E) (1977). In adding thes e (and related) new provisions in 1977, Congress recognized the scant incentive that upwind States had to control their interstate pollution contributions and made clear its intent that the burdens of air pollution control be shared mo re equitably among the States. 8 By 1990, there was an even greater awareness that certain air pollution problems, particularly in the eastern Unite d States, were unlikely to be successfully

8 For example, the House Committee vi ewed existing law as “an inadequate answer to the problem of interstate air pollution.” H.R. Rep. No. 95-294, at 330 (1977), reprinted in 4 A Legislative History of th e Clean Air Act Amendments of 1977 (“1977 Legis. Hist.”), at 2797 (Comm. Print 1978 ). The House Report stressed that one of the problems under the existing law was that its effectiveness depended largely on “prevention or abatemen t” by upwind States that in reality had little “incentive and need to act.” Id. Similarly, the Se nate Committee Report criticized the lack of effective “interst ate abatement procedures” and “interstate enforcement actions” under existing la w, which the Comm ittee viewed as “resulting in serious ine quities among several States, where one State may have more stringent implementation plan require ments than another State.” S. Rep. No. 95-127, at 41, reprinted in 3 1977 Legis. Hist. 1415. Accordingly, the new provisions were “intended to equalize the positions of the States with respect to interstate pollution by making a source at least as responsible for polluting another State as it would be for polluting its own State.” Id. at 1416. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 12 of 846 addressed without enhan ced control of interstate pollution transport. 9 Further, the statutory criterion established in 1977 proved difficult to meet. In a number of decisions EPA had found that it could not be demonstrated that upwind pollution contributions by particular sources we re “prevent[ing]” NAAQS attainment downwind. See Michigan v. EPA , 213 F.3d 663, 674 (D.C. Cir. 2000) (discussing this history). For these reasons, in the 1990 CAA amendmen ts, Congress added and strengthened a number of provisions re lating to interstate pollution transport, including (as pertinent here) a signifi cant change to section 110(a)(2)(D), 42 U.S.C. § 7410(a)(2)(D), which extended th e reach of that provision beyond a single stationary source to cover multiple sources and other emissions activities that “contribute significantly” to downwind nonattainment or maintenance problems (as opposed to the former sta ndard of “will prevent” attainment). 10

9 See S. Comm. on Env’t & Public Work s, Clean Air Act Amendments of 1989, S. Rep. No. 101-228, at 48 (1989), reprinted in 5 Legislative History of the Clean Air Act Amendments of 1990, at 8388 (“1990 Legis. Hist.”). See also Lautenberg, S. Debate on H.R. Conf. Rep. No. 101-952 (1990), reprinted in 1 1990 Legis. Hist. at 1106 (“In New Jersey, the Department of Environmental Protection says that on some days even if we shut down the entire State, we would be in violation of some health standards b ecause of pollution coming over from other states.”); S. Rep. No.101-228, at 49 (1989), reprinted in 5 1990 Legis. Hist. at 8389 (similar statement regarding New York City). 10 Compare 42 U.S.C. § 7410(a)(2)(E) (1977) (“prohibiting [emissions from] any stationary source within the State . . . which will . . . prevent attainment or maintenance by any other Stat e”) (emphasis added), with 42 U.S.C. § 7410(a)(2)(D)(i)(I)(1990) (“prohib iting, consistent with th e provisions of this title, any source or other type of emissions activity within the State . . . which will . . . USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 13 of 847 Following enactment of the 1990 CA A amendments, States and EPA began an effort to address interstate contribut ions to ozone nonattainment in a cooperative and comprehensive fashion. 11 Although this process ultimately did not yield a consensus among EPA and all the States involved, the air quality modeling and other technical work of the group provided much of the foundation for EPA’s 1998 “NOx SIP Call.” That rule required 22 States and the District of Columbia to adopt additional restrictions on the em issions of nitrogen oxides (“NOx”) to address their interstate contributions to ozone nonattainment and established a mechanism to address such contributio ns -- the NOx Budget Trading Program.
See 63 Fed. Reg. 57,356 (Oct. 27, 1998). This Court upheld the NOx SIP Call in most significant respects in Michigan v. EPA , 213 F.3d 663 (D.C. Cir. 2000). The Court found that EPA acted permissibly in utilizing “a very low threshold of contribution,” based on emi ssions data and air quality modeling, to determine which upwind/downwind linkages were sufficien t to warrant inclusion of particular
contribute significantly to nonattainment in, or interf ere with maintenance by, any other State”) (emphasis added). 11 In 1995, 37 States east of the Rockie s, along with representatives from EPA, industry and environmental groups, form ed the Ozone Transport Assessment Group (“OTAG”) to study interstate ozone pollution and develop solutions to the problem. 63 Fed. Reg. 57,356, 57, 361 (Oct. 27, 1998). OTAG conducted comprehensive studies of interstate ozone formation and transport, and considered means to mitigate the problem. OTAG conc luded that reductions in emissions of oxides of nitrogen were necessary to addr ess interstate ozone transport, but its members could not reach consensus on sp ecific control recommendations. 62 Fed. Reg. 60,318, 60,320 (Nov. 7, 1997). USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 14 of 848 States in the SIP Call. 213 F.3d at 675. On ce the universe of such “contributing” States was determined, the Court also uph eld EPA’s decision to base each State’s NOx emissions “budget” primarily on an anal ysis of the amount of emissions that could be controlled in a highly cost-eff ective manner, which was intended, among other things, to ensure that States woul d have to make the same minimum degree of investment in addressing pollution problems to which they collectively contribute. Id. at 675-79. In 2005, EPA largely replaced the NOx SIP Call with the Clean Air Interstate Rule, or “CAIR.” See 70 Fed. Reg. 25,162 (May 12, 2005). 12 While similar in many respects to the NOx SIP Ca ll, CAIR also addr essed interstate contributions to PM 2.5 pollution problems thro ugh annual NOx and SO 2 emission limitations. The Court invalidated CAIR in North Carolina v. EPA , 531 F.3d 896 (D.C. Cir. 2008). 13 North Carolina re-affirmed Michigan ’s general acceptance of a cost-effectiveness analysis, but it held that , due to CAIR’s relatively broad trading provisions and other features, the rule did not adequately assure that each upwind State would, in fact, eliminate those em issions that contribute significantly to downwind nonattainment in other States. Id. at 907-08. The Court also held that

12 While the NOx SIP Call requirements remained in place, the NOx Budget Trading Program established in the NOx S IP Call was sunsetted and replaced with the CAIR NOx ozone seas on trading program. 13 The Court initially vacated CAIR, id. at 930, but on rehearing remanded the rule without vacatur. North Carolina v. EPA , 550 F.3d 1176 (D.C. Cir. 2008). USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 15 of 849 EPA did not adequately coordinate CAIR ’s regulatory deadlines with the NAAQS attainment deadlines facing the “downwin d” States whose NAAQS attainment and maintenance problems the rule wa s designed to address. Id. at 911-12. Finally, although the Court ultimately agreed to leav e CAIR in place as an interim measure to avoid undue regulatory disruption and adverse environmental effects, it also stressed, in unequivocal terms, that the Court’s forbearance would not be “indefinite” and that EPA must act e xpeditiously to remedy the “fundamental flaws” the Court had identifie d in CAIR. 550 F.3d at 1178. The Transport Rule represents EPA’s response to the remand of CAIR. See 76 Fed. Reg. 48,208 (Aug. 8, 2011). In brie f, the Transport Rule identifies those States with emissions that significantly contribute to nonattainment or interfere with maintenance of the ozone or PM 2.5 standards in other States, establishes emissions budgets for covere d electric generating units (“EGUs”) in each such State, 14 and promulgates FIPs to achieve the necessary reductions in each State.
See 76 Fed. Reg. at 48,209-16. Phase I of the rule addresses emissions beginning in 2012. Phase II applies more stringent SO 2 standards in some States for 2014 and beyond. Id. at 48,211. EPA also substantially revised the trading program so that,

14 To address significant contributi on to downwind ozone problems, the Transport Rule establishes a budget for NOx , an ozone precursor, during the ozone season. To address significant contribution to downwind PM 2.5 problems, the Transport Rule establishes annual budgets for NOx and SO 2 , which are PM 2.5 precursors. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 16 of 8410 while it is still flexible enough to allow s ources to adjust to variability in the electricity sector, it also contains certa in state-specific limits (referred to as “assurance provisions”) “to ensure that the necessary emission reductions occur within each covered state.” Id. at 48,271. STANDARD OF REVIEW “On a motion for stay, it is the movant ’s obligation to justify the court’s exercise of such an extraord inary remedy.” Cuomo v. NRC , 772 F.2d 972, 978 (D.C. Cir. 1985). A movant must demonstrate: (1) a likelihood of success on the merits; (2) irreparable injury if relief is wi thheld; (3) lack of harm to other parties from a stay; and (4) that a stay would se rve the public interest. Nken v. Holder , 129 S. Ct. 1749, 1761 (2009); see also D.C. Cir. R. 18(a)(1). On the first factor, Petitioners must show that EPA’s action is likely to be found “arbitrary, capricious, an abuse of di scretion, or otherwise not in accordance with law.” 42 U.S.C. § 7607(d)(9)(A). This deferential standard prohibits a court from substituting its judgment for the agency’s and presumes the validity of agency actions. Motor Vehicle Mfrs. Ass’ n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43-44 (1983). Courts defer to agency constructions of statutes they administer, Chevron U.S.A., Inc. v. NRDC , 467 U.S. 837, 842-45 (1984), and of their own regulations. Auer v. Robbins , 519 U.S. 452, 457 (1997). “In reviewing alleged procedural errors, the court may i nvalidate the rule only if the errors were USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 17 of 8411 so serious and related to matters of such cen tral relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made .” 42 U.S.C. § 7607(d)(8). To establish irreparable harm, Petitioners must demonstrate an injury that is “both certain and great; it must be actual and not theoretical.” Wisconsin Gas Co.
v. FERC , 758 F.2d 669, 674 (D.C. Cir. 1985). A mere possibility of such harm is insufficient. Winter v. NRDC , 555 U.S. 7, 20-24 (2008). Alleged economic losses do not constitute irreparable injury except in the most extreme circumstances, i.e., where the “very existence” of a comp any is threatened. Wisconsin Gas , 758 F.2d at 674. Further, regulatory compliance co sts generally do not constitute irreparable injury. See, e.g. , American Hosp. Ass’n v. Harris , 625 F.2d 1328, 1331 (7th Cir. 1980); A.O. Smith Corp. v. FTC , 530 F.2d 515, 527–28 (3d Cir. 1976). SUMMARY OF ARGUMENT “A stay is an ‘intrusion into the ordinary processes of administration and judicial review,’ and accordin gly ‘is not a matter of right, even if irreparable injury might otherwise result to the appellant.’” Nken , 129 S. Ct. at 1757 (citations omitted). Stated another way, a stay is “extraordinary” relief, Cuomo , 772 F.2d at 978, which should only be sought in sim ilarly extraordinary situations. Here, however, out of the forty-five petitions for review that have been filed, nineteen USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 18 of 8412 have been accompanied by a stay moti on, and numerous othe r Petitioners have filed “responses” in support of stay motions that effectively seek the same relief. While the number of stay motions and responses are certainly not determinative of the substance of Petitione rs’ claims, the sheer number of issues presented at this stage does reinforce the conclusion that Petitioners have, collectively, made little or no effort to pr esent to the Court only those claims they truly believe are “extraordina ry.” Instead, they seem to have bundled into their stay motions just about every conceiva ble merits challenge and every possible “injury” they can think of, hoping that something in this mountain of paper may resonate with the Court. This approach is wholly inconsistent with the stringent standards for a stay pending judicial revie w, and it is especially inappropriate in light of the sweeping relief s ought by Petitioners here. As discussed above, the Transport Ru le represents the culmination of decades of Congressional, administrative, and judicial efforts to fashion a workable, comprehensive regula tory approach to interstate air pollution issues that have huge public health implications. Th e legislative history of the Act clearly reflects a Congressional frustration with the historical failure of upwind States to take effective action on their own to cu rtail their contributions to pollution problems in downwind States. The Transpor t Rule addresses and effectuates this Congressional intent, and many, if not most , of the specific features of the rule USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 19 of 8413 challenged by Petitioners (e.g., restrictions on interstate trading; the timing of the rule to address CAA compliance deadlin es; the mix of air quality and cost considerations used to define “significant contribution”) are, in fact, direct responses to guidance from this Court in North Carolina and Michigan . In sum, the stay motions are little mo re than unjustified attempts by certain upwind States and utilities to block an exceptionally well- documented, lawful, and important rule solely to serve their own paroch ial and economic interests. 1. Petitioners have no likelihood of success on the merits. One of the Petitioners’ most prominen t merits contentions is that EPA should not have issued federal implemen tation plans, but instead should have delayed the relevant compliance dates to give States additional time to submit their own implementation plans. However, as discussed above, th e Act has obligated States to adopt SIP provisions to addre ss interstate air pollution since the 1970s, and it has been clear since this C ourt’s 2008 decision in North Carolina that neither the provisions of the CAIR FIPs, which rema in in place in several States, nor SIP provisions that merely implemented the re quirements of CAIR, were sufficient to satisfy this obligation. Furthe r, the Court in North Carolina stressed EPA’s obligation to help States meet their CAA compliance deadlines. North Carolina , 531 F.3d at 911-12. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 20 of 8414 Where implementation plan deficienci es continue to exist, the statute obligates EPA to step in with a FIP. Furthe r, States that truly were interested in adopting their own interstate transport SI P provisions have had years to do so – interstate transport SIPs for the 1997 NAAQS were due in 2000 and those for the 2006 NAAQS were due in 2009. However, the States raising these claims either did not develop any such SIP revisions at all following North Carolina , decided to remain subject to the CAIR FIPs, and/or submitted proposed revisions to EPA that were clearly inadequate. Against this background, EPA not only had the authority under the Act to promulgate FIPs for th e covered States but, indeed, had an obligation to do so. Such EPA action is pr ecisely what the Act mandates and is not an improper intrusion on state sovereignty. Consistent with the state/federal partnership created by the Act, however, th e Transport Rule provides that any State that truly wishes to take over its tran sport obligations under a SIP may do so, as long as its plan achieves at least th e same emission reductions as EPA’s. Petitioners also make a hodgepodge of ar guments contending, in one way or another, that EPA incorrectly gauged the “significant contribution” of particular States. Many Petitioners argue, more spec ifically, that significant contribution should be defined solely with respect to air quality analyses, apparently because they believe such an approach would re sult in less stringent controls in their particular State. EPA’s task here, howev er, was to develop a regulatory approach USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 21 of 8415 that addressed the entirety of this complex, multi-St ate pollution issue, where contributions from numerous upwind States typically are linked to particular downwind nonattainment problems. From a technical perspective, EPA explained why an air quality-only approach would not be an effective or efficient overall response to the complex collective-contri bution problem presented here, and this analysis stands essentially undisputed. And from a legal perspective, the mixed air-quality and cost-effectiveness appro ach the Agency in stead adopted was previously upheld in both Michigan and North Carolina. A number of Petitioners also claim they did not have sufficient opportunity to comment on aspects of the rule of con cern to them. However, the proposed rule, combined with three sepa rate supplemental notices, provided Petitioners (and all members of the public) with more than ample notice and opportunity to comment on EPA’s methodology, data, and general approach, and nothing in the Clean Air Act or the Administrative Procedure Act required more. Petitioners thus cannot show any legal defect in the notice or opportunity to comment provided by EPA, and they certainly cannot satisfy the stri ngent standard for alleged procedural errors established by CAA Secti on 307(d)(8), 42 U.S.C. § 7607(d)(8). 2. Petitioners have not demonstrated irreparable injury. Petitioners fare no better in their atte mpts to show that they will suffer irreparable injury before th eir claims can be heard on the merits. While covered USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 22 of 8416 sources must hold allowances sufficient to cover emissions that occur during 2012, the State budgets set forth in the initial st age of the Transport Rule (i.e., for 2012 and 2013) are based primarily on the cap abilities of existing and previouslyplanned emission controls. When reductions that are expected or required to be in place by 2012 are taken into account, it become s clear that Petitioners’ claims that drastic reductions will be required by 2012 are (to varying degrees) grossly exaggerated. The flexibility of the rule gives individual sources multiple compliance options. The rule does not set emission limits for individual sources, and sources with emissions above their in itial allowance allocati ons will have more than ample opportunity to purchase enough allowances to cover any shortfall (in fact, there already is solid evidence of the development of a robust market for such allowances). Furthermore, parties are no t required to demonstrate their compliance with the allowance holding requirement s rule until the end of 2012 (for ozone season NOx budgets) or the Spring of 2013 (for annual SO 2 and NOx budgets), so the merits of this case could be heard in the normal course before either of these certifications have to be made. It is true that the Transport Rule, like any significant regulation, will impose some compliance costs on regulated entities. However, such compliance costs do not constitute irreparable injury; if this we re not the case, then this Court would be asked to stay nearly every regulation for which judicial review was sought by a USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 23 of 8417 regulated entity. Simply put, a stay is extraordinary relief, only granted in extraordinary circumstances, and none of the cost allegations posited by Petitioners (e.g., temporarily reduced profits) rise s anywhere close to this level. Nor is there merit to Petitioners’ reck less and unjustified claims that the Transport Rule will threat en electric reliability. Although the specifics of Petitioners’ allegations vary somewhat from State to Stat e, they all are generally based on a host of demonstrably incorrect and extreme assumptio ns about the lack of compliance options and the unavailability of allowances. In reality, however, the rule provides all utilities with a host of compliance options that will easily allow them to meet all estab lished reliability protocols. In order to ensure the rule was compatible with reliable grid ope ration, EPA’s modeling took into account regional constraints informed by the pl anning studies conducted by the North American Electric Reliability Corpora tion (“NERC”). Declaration of Sam Napolitano ¶ 53, Attachment 1. In addition, EPA’s own analysis confirmed that all regions covered by the rule would have sufficient capacity to meet foreseeable peak electricity demand with an adequate reserve margin. Id. ¶¶ 55-57. Indeed, a November 2011 report by NERC , looking at the potential impact of four separate EPA rules (the other th ree of which are not yet final), confirms that the Transport Rule will not threaten electric reliab ility, and especially not the requirements of the rule’s relatively less st ringent first phase that will be in place USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 24 of 8418 while the merits of this case ar e likely to be briefed and argued. 15 Generally speaking, NERC’s assessment is a st ress test (applying many worst case assumptions) that projects no significant ch ange in resource adequacy and ample reserve margins in all scenar ios for the year 2013. See Napolitano Decl. ¶ 57. 16 3. The balance of harms favors denying a stay. The harm to the public of the stay sought by Petitioners vastly outweighs any conceivable economic bene fit Petitioners might gain by being relieved of some compliance costs during 2012. EPA’s analysis -- which is not seriously disputed here -- documents the tremendous public h ealth benefits (e.g., far fewer deaths, hospitalizations, and missed work and school days resu lting from respiratory and cardiovascular problems) that will result from Transport Rule. It is no answer to say, as some Pe titioners do, that the Court could simply stay the Transport Rule as it applies to some or all States , with CAIR resurrected in

15 See 2011 Long-Term Reliability Asse ssment, NERC (November 2011) (available at http://www.nerc.com/files/2011 LTRA_Final.pdf) (“NERC 2011 LTRA”). 16 Compare NERC 2011 LTRA at 152,Tabl e 37: 2013 Reference Case (showing reserve margins in the absence of any EPA rules) with id. at 153,Table 38: 2013 Moderate Case Results (showi ng reserve margins in 2013 with EPA rules). The 2013 scenario presented is th e most relevant be cause the NERC study analyzes at the potential impact of four separate EPA rules (t hree of which have not yet been finalized). The Transport Rule is the only one of the four where compliance in 2013 is required, and thus the 2013 results largely isolate the impact of the Transport Rule, demonstrating that th is rule alone has little, if any, impact on anticipated or potential reserve margins. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 25 of 8419 whole or in part in the interim. As expl ained in EPA’s prior responses, and as is also discussed herein, even a stay “limite d” to particular States would greatly undermine effective emissions control be cause the CAIR requirements would cease to constrain emissions due to disrup tions to the normal trading of allowances, and would also result in substantial c onfusion in the regulated community. Moreover, it is difficult to see how such a course could possibly be said to serve the public interest, since this Court in North Carolina found CAIR to be legally deficient in a number of critical respects, and the primary purpose of the Transport Rule is to replace CAIR in a manner that addressed the Court’s concerns. ARGUMENT I. PETITIONERS HAVE NO LIKELIHOOD OF SUCCESS ON THE MERITS A. EPA Has Statutory Authority to Promulgate the Transport Rule FIPs. Most of the Petitioners assert that EP A lacked authority to implement the Transport Rule by promulgation of FIPs. Although they base their arguments on such concepts as “cooperative federalism, ” “state sovereignty,” or the supposed structure of the Act, they assiduously a void addressing the actual language of the statute. As described in detail in our previous responses (see, e.g. , EPA Opp. to EME Homer Mot., document 1328647, at 6- 12; EPA Opp to NE Mot., document 1335231, at 9-12), CAA section 110(c)(1) states that “The Administrator shall USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 26 of 8420 promulgate a Federal implem entation plan at any time w ithin 2 years” after EPA either finds that a State has failed to make a required SIP submission or disapproves a submitted SIP in whole or in part. 42 U.S.C. § 7410(c)(1) (emphasis added). For every State subject to the Transport Rule , EPA has made a determination of either failure to s ubmit a SIP or has disapproved a SIP with regard to the 1997 ozone NAAQS, the 1997 PM 2.5 NAAQS, and/or the 2006 PM 2.5 NAAQS. U.S. EPA, Status of CAA 110(a)(2)(D)(i)(I) SIP s Final Rule TSD (July 2011) (Attachment 2). Thus, the States have had their opportunities to address their significant contribution to nonattainment or interference w ith maintenance in other States and have failed to do so. In such circumstances, the CAA not only authorizes, but requires, EPA to promulga te one or more FIPs for each State to address its significant contribution. To the extent Petitioners do address the statute, they erroneously focus on section 110(k)(5), 42 U.S.C . § 7410(k)(5). See, e.g. , WI Mot. at 6; FL Utils. Mot. at 2; GA Resp. at 2. Section 110(k)(5) authorizes EPA to i ssue a “SIP Call” when it determines that a State’s existing SIP does not meet CAA requirements. It is not applicable to a situation, such as exists here, where the States have failed to comply with their obligations under the Ac t, and EPA has made a finding of failure to submit or has disapproved a Stat e’s SIP. The NOx SIP Call (upheld in Michigan ) and CAIR (reviewed in North Carolina ) illustrate the difference. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 27 of 8421 The NOx SIP Call was a SIP Call issued in the absence of any findings of failure to submit or SIP disapprovals. It required certain States to modify their SIPs to eliminate their significant contribu tions to nonattainment or interference with maintenance in other States. While the NOx SIP Call established NOx budgets for each covered Stat e and required sources to pa rticipate in the allowance programs established, it did not allocate allowances to individual sources. CAIR, however, was not a SIP Call and EPA did not issue a SIP Call before promulgating CAIR. For all of the States covered by CAIR, EPA had made a finding of failure to submit, see 70 Fed. Reg. 21,147 (Apr. 25, 2005) , and EPA promulgated a CAIR FIP for each covered State, 71 Fed. Reg. 25,328 (Apr. 28, 2006), which required covered sources to participate in the CAIR allowance programs and allocated allowances to individual units. There is nothing in section 110(c)(1), which is the basis for EPA’s promulgation of both the Transport Rule and CAIR FIPs, that requires EPA to issue a SIP Call before promulgating a FIP. 42 U.S.C. § 7410(c)(1). When EPA promulgates a new NAAQS or revises an existing NAAQS, as it did with the 1997 ozone and PM 2.5 NAAQS and the 2006 PM 2.5 NAAQS, States are obligated to submit SIP revisions to address the new or revised NAAQS. 42 U.S.C. § 7410(a)(1), (k)(2),(3). This includes th e obligation to address their significant contribution to nonattainment or maintenance problems in other States. Nothing in USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 28 of 8422 this provision makes the State’s obligatio n contingent on a determination by EPA as to what constitutes significant cont ribution. Rather the Act imposes an affirmative obligation on the States to address emissions from the State that significantly contribute to nonattainment or interfere with ma intenance in other States. The States have not met that obligation with respect to the pollutants covered by the Transport Rule. Thus, fo r each of the States subject to the Transport Rule, EPA either found that the State had failed to make one of these required submissions or disapproved a s ubmission. Under those circumstances, section 110(c)(1) explicitly requires EPA to promulgate a FIP for each such State, whether or not it has issued a SIP Call. Virginia v. EPA , 108 F.3d 1397 (D.C. Cir.), modified on other grounds , 116 F.3d 499 (D.C. Cir. 1997), is inapplicable here for the same reason. In Virginia , EPA had issued a SIP Call and the Court held that EPA had improperly required the States to adopt California’s motor vehicle regulations as a condition of SIP approval. Id. at 1403-04. The Transport Rule is not a SIP Call and does not require the States to do anything. Rather , it is a federal regulation that directly regulates individual sources. Thus, Virginia is inapposite. 17 The CAA

17 Moreover, even in the context of a SIP Call, the Court has held that EPA’s specification of State budgets based in part on cost-effectiveness was not inconsistent with Virginia because States could choose how to achieve those budgets, just as EPA does in the FIP context. Michigan , 213 F.3d at 685-88. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 29 of 8423 contemplates, and, in fact, requires that EP A act when the States have failed to do so. The States subject to the Transport Ru le have failed to address their significant contributions to ozone and PM 2.5 pollution problems in other States, and thus EPA has done so. 76 Fed. Reg. at 48,219-20. Finally, Ohio’s claim that EPA imprope rly disapproved its proposed SIP to address the 2006 PM 2.5 NAAQS, OH Mot. at 15-17, is inapposite. First, EPA’s disapproval of that submission is a separate EPA action not under review here. In fact, Ohio has filed a separate petition in the Sixth Circuit seeking review of that decision. Ohio v. EPA , No. 11-3988 (6 th Cir. filed Sept. 19, 2011). Thus, that issue is not before this Court. Second, Ohio is subject to the annual NOx and SO 2 programs of the Transport Ru le regardless of the validity of EPA’s disapproval of Ohio’s SIP regarding the 2006 standard b ecause EPA found that Ohio had failed to submit a SIP addressing interstate transport requirements for the 1997 PM 2.5 NAAQS; Ohio did not challenge this fi nding. Attachment 2 at 9; see EPA Opp. to EME Homer Mot., document 1328647, at 8-10 (demonstrating that EPA’s approval of CAIR SIPs does not eliminat e EPA’s authority to promulgate a FIP because this Court’s decision in North Carolina demonstrates that those SIPs do not correct the deficiency.) Finally, the guidance cited by Ohio (at 16) was applicable only to SIPs addressing the 1997 NAAQS revisions and said that States could rely on CAIR for addressing those re visions. Because CAIR did not address USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 30 of 8424 the 2006 NAAQS revisions, the guidance wa s completely inapplicable to SIP requirements arising out of those revisions. B. EPA Used an Appropriate Ap proach For Defining the Amount of Each State’s Significant Contribution. A number of Petitioners challenge the manner in which EPA calculated each State’s “significant contribution,” whic h, as discussed a bove, was based on a mixed air quality and cost approach. 18 Most of these Petitioners argue that significant contribution should instead be defined exclusively by air quality considerations. None of th ese arguments has merit. By way of background, as discusse d above, EPA used air quality modeling initially to determine which upwind States made emissions contributions that were significant enough to link them with pa rticular downwind nonattainment or maintenance problems. See generally 76 Fed. Reg. at 48,238-46. 19 Typically, the modeling showed that for each such downwind receptor with an ozone or PM 2.5

18 See WI Mot. at 8-9; Dairyland Mot. at 12-13; FL Utils. Mot. at 14; GA Utils. Mot. at 11-14; AL/MS Resp. at 3-9. 19 Specifically, at this stage of its analysis, EPA used “CAMx” (Comprehensive Air Quality Model wi th Extensions) source apportionment modeling to “quantify the contribution of emissions from various sources . . . to quantify the downwind contri butions of ozone and PM 2.5 from upwind states.” 76 Fed. Reg. at 48,229. An emissions and economic model -- the Integrated Planning Model, or “IPM” – was used to devel op the EGU emission inventories which are one of many inputs into the CAMx model. In addition, in later stages of its analysis, EPA used IPM modeling to help determine appropriate emission budgets for each State by predicting NOx and SO 2 emissions from EGUs in each State after implementing controls at defined cost th resholds. 76 Fed. Reg. at 48,259-61. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 31 of 8425 nonattainment problem, there are numerous (sometimes as many as two dozen or more) upwind States whose emissions make some contribution greater than zero to the problem. 20 EPA then used numerical thre sholds (generally based on one percent of the applicable NAAQS) to determine, out of these groups, which upwind State contributions to downwind problems are so small as to warrant exclusion, while a combination of air qua lity and cost-effectiveness analyses were conducted to determine whether, and if so how much, States above the threshold are “significantly contributing” to downwind nonattainment problems. The upwind States identified in this analysis became the universe of States subject to the Transport Rule. See 76 Fed. Reg. at 48,222-46. EPA then calculated the emission “bu dgets” for each State based on average yearly electric generating unit (“EGU”) em issions after all significant contribution has been eliminated. For PM 2.5 , EPA set annual budge ts for NOx and SO 2 , both of which are PM 2.5 precursors. For the SO 2 budgets, EPA separated upwind States into two groups. Id. at 48,264. In “Group 1” Stat es, which are required to make more stringent reductions, the final SO 2 budgets are based on the amount of SO 2

20 See generally Air Quality Monitoring Final Rule Technical Support Document, Appendix D (J une 2011) (available at : http://www.epa.gov/airtransport/pdfs/ AQModeling.pdf) (showing contributions from each upwind State to each downwind receptor). USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 32 of 8426 that will be emitted if controls costi ng up to $2,300 per ton are implemented. 21 In “Group 2” States, all SO 2 budgets are based on less string ent controls costing up to $500 per ton. Overall, EPA’s analysis indi cated that these reductions would fully and cost-effectively address significan t interstate contributions to PM 2.5 nonattainment and main tenance problems. 76 Fed. Reg. at 48,209 -12, 48,252-55. Although Petitioners’ motions are not entirely clear (or uniform) on this point, their main argument appears to be that EPA must identi fy the specific level at which a State’s emissions would meet but not exceed the one percent threshold used in the air quality portion of EPA’s analysis, and that EPA may not define particular States’ “significant contribution” to be any more than that amount. See,
e.g. , Dairyland Mot. at 12-13; WI Mot. at 8- 9; AL/MS Resp. at 5. Some of these Petitioners make the related suggestion that the percentage of emission reductions required from each upwind contributor to a particular downwind pollution problem must be proportional to each of the upwi nd States’ relative degree of modeled air quality contributions. See, e.g. , WI Mot. at 10; FL Utils. Mot. at 14.

21 The 2012-13 budgets for “Group 1” States are based on the amount of SO 2 that will be emitted if controls up to $500 ton are implemented, and the budgets for 2014 and beyond are based on the amount of SO 2 that will be emitted if controls costing up to $2,300 per ton are implemented. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 33 of 8427 While the more specifi c of these claims are grossly exaggerated and meritless on their own terms, 22 the fundamental problem is that all of these arguments are focused entirely on the na rrow desired result of minimizing the emissions reductions of a single upwind State, as measured by its contributions to a single downwind receptor. But EPA’s task in the Transport Rule was to address the much broader and more complex web of interstate transport issues affecting more than half the States in the country. In reality, most upwind States contribute to nonattainment in multiple downwind States, and all downwind nonattainment problems are caused by the combined contributions of local emissions and transported emissions from multiple upwind St ates. Thus, as EPA explained at the time of proposal, air quality-only approaches to this “collective contribution” problem generally require each upwind State to reduce its emissions to address the maximum contribution that the State makes to any downw ind nonattainment problem, resulting in much larger require d emission reductions in upwind States than would be necessary, collectivel y, to address the identified downwind nonattainment issues. 23 The mere fact that certain Petitioners believe their narrow

22 See Part I.D, infra ; see also Declaration of Brian S. Timin ¶¶ 5-16 (Attachment 3). 23 U.S. EPA, Alternative Significant C ontribution Approaches Evaluated TSD (July 2010), at 3-7 (available at http://www.epa.gov/airtransport/pdfs/TSD_ alternative_signifi cant_contribution_ap proaches.pdf ). USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 34 of 8428 interests would have been better served in this particular case by an air-quality only approach does not rebut EPA’s well-reasone d choice of a different approach for the rule that better serves the goals of the statute and this Court’s guidance. Michigan and North Carolina support EPA’s approach of using both air quality and cost considerations to inform its analysis of whether, and how much, particular States “contribute significantly to nonattainment,” as that term is used in CAA section 110(a)(2)(D)(i)(I), 42 U.S.C. § 7410(a)(2)(D)(i)(I). As discussed above, in Michigan this Court held that the term “s ignificant” as used in this phrase is not limited exclusively to air quality and health issues, but instead is properly read to include economic considerations. Michigan , 213 F.3d at 674-79. The Court re-affirmed this aspect of Michigan in North Carolina . North Carolina , 531 F.3d at 917. It is true that in North Carolina , the Court found that CAIR utilized a flexible emission-trading system and other features that undermined EPA’s obligation to assure that state-speci fic nonattainment problems would be addressed. Nothing in North Carolina , however, precludes use of a more statespecific and refined analysis, as EPA did he re, which assures that the rule will be cost-effective and meet the State-specifi c air quality requirements of the statute. 24

24 The Transport Rule adopted a num ber of important revisions from the approach taken in CAIR to address the C ourt’s concerns on these issues, including a much more restricted emissions trad ing program, “variability” limits on the amount by which each contributing State can exceed its yearly emissions budgets, an air-quality-based approach to identif ying cost thresholds, and a two-part USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 35 of 8429 Nor is there any basis for the suggestion that Michigan only allowed the use of costs to reduce the stringency of required em ission reductions that would otherwise be required by ai r quality modeling. See AL/MS Resp. at 8-9. In fact, Michigan rejected an almost identical set of argum ents. In that case, one of the Petitioners’ critiques of the NOx SIP Call wa s that it used a relatively “uniform” analysis to determine each State’s required emission reductions. Michigan , 213 F.3d at 679. Petitioners argued, much like Petitioners here, that EPA instead should have made “reductions from sour ces near the nonatta inment areas (or otherwise more damaging, molecule for molecule) more valuable than ones from distant sources . . . .” Id. Petitioners also criticized EPA’s approach on the basis that “where two states differ considerab ly in the amount of their respective NOx contributions to downwind nonattainment , under the EPA rule even the small contributors must make re ductions equivalent to those achievable by highly costeffective measures.” Id. In response, the Court si mply explained that EPA had articulated a reasonable basis in the r ecord for its decision to use a costeffectiveness approach to “significant cont ribution,” that the effects objected to by Petitioners naturally flowed from EPA’s deci sion, and that “[o]ur upholding of that
approach to SO 2 contributions which, as discusse d in the text, applies relatively less stringent cost-effectiveness crite ria to some States. See generally 76 Fed. Reg. at 48,209-16. In the final step of its analysis, EPA conducted modeling to assure that the program would achieve appropria te state-specific air quality results, 76 Fed. Reg. 48,253-55, and Petitioners do not directly contest that modeling here. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 36 of 8430 decision logically entails upholding this consequence.” Id. ; see also North Carolina , 531 F.3d at 908, 917 (re-affirming this aspect of Michigan ). 25 It bears emphasis that under the Tr ansport Rule, a State’s “significant contribution” to downwind NAAQS nonattainment is notequivalent to the abovedescribed thresholds that EPA used to help identify States whose contributions were large enough to warrant further consid eration, as some Petitioners claim. See, e.g. , Dairyland Mot. at 12. Instead, as EPA clearly explained, the cited thresholds were merely an analytical tool used by EPA in the first step of a multifactor analysis to help determine whic h States should be included in the rule. 26 Once those States were identified, their “significant contribution” was defined not in relation to the thresholds, but instead with respect to the amount of emissions within the State that could be reduced at a specific cost threshold identified for

25 Some Petitioners also suggest that in North Carolina , the Court prohibited EPA from requiring States to reduce more than their am ount of modeled air quality contributions to downwind nonattainment and maintenance probl ems. See, e.g. , WI Mot. at 9 (citing North Carolina , 531 F.3d at 917-21). This is incorrect. In fact, as noted in the text, th e cited portion of North Carolina re-affirmed Michigan ’s general acceptance of a cost-effectiveness a pproach to “significant contribution,” but determined that two speci fic features of CAIR -- the rule’s use of acid rain allowances in the trading progr am and of “fuel factors” as part of the budget-setting process -- were inadequately justified a nd explained. As noted above, however, EPA made a number of changes in response to North Carolina , and neither of these features of CAIR was utilized in the Transport Rule. 26 76 Fed. Reg. at 48,246-48; see also North Carolina , 531 F.3d at 916-17 (recognizing that similar thresholds used in CAIR were used only to help determine the inclusion or exclusion of par ticular States in the rule, not the amount of each State’s “significant contribution”). USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 37 of 8431 each State by utilizing the combined cost -effectiveness and air quality analysis described above. 76 Fed. Reg . at 48,248-65. Thus, the Petitioners’ suggestion that the rule creates a mismatch between the amount of a State’s “significant contribution” and the amount of its require d emission reductions is, in this respect, little more than a mischaract erization of the record. 27 Finally, there also is no merit to Georgia Utilities’ argument that EPA’s significant contribution analysis was flawed, with respect to Georgia, because it supposedly will require specific sources in Georgia to make SO 2 emission reductions costing more than $500 per ton. GA Utils. Mot. at 12-14. This argument reflects a misunderstanding of the rule and is premised on an exaggerated estimate of compliance costs. See Napolitano Decl. ¶¶ 77-79. The $500 per ton SO 2 threshold is neither a binding cap on the cost of potential compliance costs, nor is it used to de fine unit or utility-specific compliance requirements. Id. Instead, it was used to estimat e the point at which air quality impacts in downwind States noticeably ch anged; when reductions available at $500/ton were implemented the relevant downwind receptors came into attainment and resolved maintena nce problems. See 76 Fed. Reg. at 48,257. Notwithstanding this analytical approach, the Transport Rule provides flexibility in compliance

27 See also , e.g. , EPA’s Opp. to Wisconsin P ublic Service Corp.’s Mot., document no. 1337434, at 7-13 (filed Oct. 24, 2011) (discussing issues in detail). USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 38 of 8432 options, and covered EGUs may choose to comply using a method that costs less or more than $500 per ton. In short, the co st threshold was an analytical tool used by EPA, not a compliance requirement. For all the foregoing reasons, EPA’s approach to “significant contribution” issues was reasonable, is consistent w ith the statute, and likely will be upheld. C. EPA Gave Adequate Noti ce of the Final Budgets. Many of the stay motions assert that EPA failed to give adequate notice of the emission budgets in the final rule because those budgets changed from the proposal. As we have explained in our responses to other stay motions, EPA provided adequate notice because it identif ied in the proposal the methodology it would use to establish the budgets and provided opportunities to comment on the changes to the model and da ta being used. See, e.g. , EPA Opp. to NE Mot., document 1335231, at 7-9. The changes in budgets from the proposal to the final rule are in large part the result of inform ation provided in comments, and thus the final rule is a logical outgrowth of the pro posal. As this Court has held, a final rule may permissibly differ from the proposal if it is a “logical outgrowth” of the proposal “where the agency gave adequate notice of the procedures it intended to use, the criteria by which it intended to se lect data, and the range of alternative sources of data it was considering.” Am. Coke & Coal Chems.Inst. v. EPA , 452 F.3d 930, 939 (D.C. Cir. 2006). USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 39 of 8433 The budgets under the rule represent each State’s emissions in an average year after implementation of reductions needed to eliminate emissions that significantly contribute to nonattainment or interfere with ma intenance in other States. 76 Fed. Reg. at 48, 260. To identify the necessary reductions, EPA used an air-quality-based analysis to identify appropr iate cost thresholds and the Integrated Planning Model (“IPM”) 28 to predict NOx and SO 2 emissions from electric generating units in each State after implemen ting controls at those cost thresholds. 76 Fed. Reg. at 48,255-61. The change in the budgets betwee n the proposed and final rules is due primarily to modificati ons EPA made to the IPM to make it more accurate, including addressing public in put suggesting that certain IPM updates were needed. Id. at 48,260. EPA provided an opportunity to comme nt on the revisions to the model through a Notice of Data Availability (“N ODA”) that stated that EPA had made changes in the IPM, that detailed documen tation of the changes was available in the docket (and on-line), and that requested comment on th e changes. 75 Fed. Reg. 53,613, 53,614 (Sept. 1, 2010). 29 The NODA also stated that updated information

28 IPM is an economic model, used to determine the least-cost method of generating electricity. In other words, it forecasts how the power sector produces electricity at least cost while meeting energy demand, reliability constraints, and environmental requirements 29 This was one of three NODAs pub lished by EPA to provide an opportunity for comment on revised data used in its analyses for the Tr ansport Rule. The USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 40 of 8434 concerning the generating units included in the IPM was available for comment in the docket, and that, in running the IPM , EPA would use data from 2009, rather than the 2007 data used in the proposal, a nd EPA identified the data that would be used. Id. at 53,614-15. EPA explained that these changes would “more accurately portray the unit level control installations that have occurred at power plants during the past several years.” Id. The NODA also explained that these changes to the IPM could impact the final rule by “[c]hanging cost and emission projections used in the multi-factor test to determine the amount of emissions that represent significant contribution,” id. at 53,614, which determines the State budgets. 30 Thus, through the NODAs, EPA gave notice that the final rule budgets would differ from those in the proposal and provided an opportunity to comment on the methodology and data used in de veloping the final budgets. Furthermore, based on publicly available data, Petitione rs should have known that the final budgets would be significantly lower than those in proposal because actual emissions had become lower. For example, SO 2 emissions in Wisconsin (where movant Dairlyand is located) decreased from 129,695 tons in 2008 to 109,476 tons

others are at 75 Fed. Reg. 66,055 (Oct. 27, 2010) and 76 Fed. Reg. 1109 (Jan. 7, 2011). 30 In the January 2011 NODA, EPA also em phasized that: “It is important to note that final State budgets may differ fr om the proposed budgets because EPA is still in the process of updating its emissi ons inventories and modeling in response to public comments, including comments on the . . . IPM.” 76 Fed. Reg. at 1111. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 41 of 8435 in 2010, while NOx emissions decreased from 47,805 to 33,466 tons in the same period. See www.camddataandmaps.epa.gov/gdm . Thus, Dairyland and other Petitioners should have been aware that the data EPA intended to use in promulgating the final rule reflected lower emission levels than the data used to develop the proposed budgets, and should not have been surprised that the final budgets were lower. The fi nal rule is a logical outgrowth of the proposal and Petitioners had adequate opport unity to comment. Am. Coke , 452 F.3d at 938-39 (“If interested parties ‘shoul d have anticipated’ that th e change was possible, and thus reasonably should have filed their comments on the subject during the noticeand-comment period, then the rule is deem ed to constitute a logical outgrowth of the proposed rule.”). Petitioners’ reliance on Sma ll Refiner Lead Phase-Do wn Task Force v. EPA , 705 F.2d 506 (D.C. Cir. 1983), is misplace d because the primary factor on which the Court relied in Small Refiner , i.e., a “promise” that EPA had made in the proposal that small refiners “could safe ly delay capital investments pending EPA’s issuance of the final rule,” id. at 542, is not present here. In Small Refiner the Court held that EPA had not complied wi th notice requirements because EPA had made a specific comm itment in the proposal and th en abandoned that commitment in the final rule. Id. at 543 (issue was not whether proposal gave adequate notice of the final standard, but whether it gave ad equate notice of the interim standard in USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 42 of 8436 light of EPA’s commitment). It did not hold that EPA had failed to give adequate notice simply because the final rule was more stringent than the proposal. EPA made no analogous commitment in the Transport Rule proposal. Rather, the proposal and the NODAs made clear that EPA was seeking updated data to make the budgets more accurately reflect actual conditions. This Court has recognized that one of the purposes of noti ce and comment is to allow an agency to refine its proposal in light of the info rmation provided in comments and that requiring the agency to go through a new round of comments each time it made such a refinement would lead to endle ss cycles of notice and comment. Ne. Md. Waste Disposal Auth. v. EPA , 358 F.3d 936, 951 (D.C. Cir. 2004). In this case, EPA made clear that it intended to update the budgets in light of new information and gave interested parties the opportunity to comment on the data and the model. Such action is entirely consistent with not ice and comment requirements. As this Court has stated, “Agencies are free – ind eed they are encour aged – to modify proposed rules as a result of the comments they receive.” Id. The arguments raised by individual Petiti oners are similarly without merit. For example, Florida Utilities’ claim that EPA failed to provide an opportunity to comment on the use of IPM in developing State budgets, FL Utils. Mot. at 9, is simply wrong. While the proposal prea mble states that EPA would utilize a variety of sources of information in deve loping budgets, it does not state that EPA USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 43 of 8437 would not use IPM modeling. In fact, the proposal used IPM to develop 2012 and 2014 budgets. Napolitano Decl. ¶ 73. Moreover, EPA received numerous comments directly addressing, and largely supporting, the use of IPM modeling in developing the budgets. Id. ¶ 47. Thus, the regulated community had ample notice that EPA intended to utilize the IPM in developing the budgets. Entergy’s claim that EPA changed its methodology for determining the level of emission reductions as applied to Loui siana, Mississippi, and Arkansas between the proposed and final rules, Entergy Mot. at 10-12, is also factually incorrect. EPA applied the same methodology to these States as it did to the rest, i.e., it determined what emission reductions were available within each State at specific cost thresholds. For these States, after IPM modeling showed that emissions after implementing emission reductions availabl e at the $500 per ton level would equal the base case emissions, EPA conducted a fu rther analysis to determine, based on an examination of what would happen in these States if they were excluded from the program, whether emission reductions we re available in th ese States at $500 per ton and it determined that there were. 76 Fed. Reg. at 48,263. EPA’s analysis focused on identifying reductions availabl e within these States and determining “whether emission limits are necessary to prohibit these states from significantly contributing to downwind nonattainment or interfering with maintenance.” Id. (emphasis added). As such, Entergy’s cl aim that EPA decided to include these USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 44 of 8438 States “so that other states will achieve their projected emission reductions” (Entergy Mot. at 12 (emphasis added)) is false. EPA did not apply a different methodology to these States, and Entergy ha d ample notice of the method that EPA would use to determine the n ecessary emission reductions. The City of Ames’ argument that EPA fa iled to provide notice of changes to the allocations to units owned by Ames is similarly without merit because EPA explicitly provided an opportunity to comme nt on the revised methodology to be used for unit-level allocations in the January 2011 NODA. Further, the City’s argument that EPA failed to provide not ice of the ozone-season budget for the State of Iowa is inapposite because Iowa is not included in the final rule for ozone and therefore does not have an ozone-s eason budget. 76 Fed. Reg. at 48,213, Table III-1. (EPA has proposed, but not yet taken final action, to include Iowa in the ozone season program, 76 Fe d. Reg. 40,662 (July 11, 2011)). D. EPA Properly Based Its Identification of Downwind Nonattainment and Maintenance Areas on Air Quality Modeling. A number of Petitioners challenge EP A’s use of air quality modeling -- as opposed to current air quality monitoring data -- to identify which downwind areas will experience PM 2.5 and ozone NAAQS nonattain ment and maintenance problems in the absence of upwind controls. 31 By way of background, it was

31 See WI Mot. at 12; Dairyland Mot. at 14 ; Indiana Mot. at 8-9; FL Utils. Mot. at 10-12; Southern Co. Resp. at 3, 5-11; GA Utils. Mot. at 18-19. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 45 of 8439 necessary for EPA to use air quality mode ling, as opposed to current air quality monitoring data, because in North Carolina this Court unequivocally directed EPA

to replace CAIR, not merely to supplement it. See 76 Fed. Reg. at 48,223; see also North Carolina , 531 F.3d at 929-30 (describing EPA’s approach in CAIR as “fundamentally flawed,” directing EPA to “redo its analysis from the ground up,” and stating that “[n]o amount of tinkeri ng with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule.”). 32 Thus, to appropriately analyze “from the ground up ” what controls ar e needed for the Transport Rule, it was essential for EPA to begin by modeling what air quality would be like in downwind areas without the CAIR regulatory regime in place. Only with that “base case” established could EPA then analyze what downwind air quality problems would exist without CA IR due to upwind contributions and, accordingly, what upwind controls were n eeded in the Transport Rule to address significant contributions to NAAQS nonatta inment and maintenance problems.
See 76 Fed. Reg. at 48,223-24. 33

32 It is also worth noting that in North Carolina and Michigan , this Court upheld EPA’s use of modeling data to he lp determine which upwind States should be included in CAIR and the NOx SIP Call. See North Carolina , 531 F.3d at 913- 14; Michigan , 213 F.3d at 673-74. 33 However, any suggestion that EP A’s “base case” or modeling does not accurately reflect the real-world ope rating conditions and projected future emissions is incorrect. For example, EPA’s modeling projections include information about announced unit retirements and controls that are planned to USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 46 of 8440 Generally speaking, Petitioners argue that EPA’s modeling analysis (and, by extension, much of the Transport Rule) was unnecessary, since they believe, based on recent monitoring data, that a number of downwind areas that are the focus of the rule presently are attaining the releva nt NAAQS or are at least on a path to do so. However, all of these arguments i gnore the fact that the cited air quality monitoring data necessa rily reflect, inter alia , the air quality improvements resulting from CAIR. See 76 Fed. Reg. 48,260-61. Th erefore, these data, which necessarily reflect the control requirements of CAIR, simply are irrelevant to the question of what contro ls are needed as a replacement for CAIR. Similarly meritless is the related s uggestion by some Petitioners that the Transport Rule is also unnecessary (at le ast in part) because some downwind areas might reach attainment by 2014, even if they can’t do so by 2012. See, e.g. , WI Mot. at 14; FL Utils. Mot. at 11. Pursuant to North Carolina , 531 F.2d at 911-12, 930, part of EPA’s charge here was to ensure that reductions occurred in a timeframe that is as “expeditious as practicable,” providing the statutorilymandated assistance to downwind States in advance of their deadlines for attaining the NAAQS. Therefore, EPA properly focused its identification of downwind

come online and will be required to run, either due to plant design, consent decrees, agreements, or state regulations that would affect future emissions upwards or downwards. See Napolitano Decl. ¶ 45. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 47 of 8441 receptor States on the 2012 “base case” scenario. See 76 Fed. Reg. at 48,214, 48,227-38, 48,277-79; see also infra Part I.G. In short, two of the clear directives of North Carolina were that EPA needed to re-do its interstate tran sport analysis “from the gr ound up” and that EPA needed to come up with a new regulatory approa ch that would, among other things, allow downwind areas to achieve their statut ory NAAQS attainment and maintenance obligations as “expeditiously as possibl e.” The Transport Rule indisputably addresses the Court’s guidance on these point s and, at the very least, reflects a reasonable policy choice by EPA. The mere fact that certain Petitioners believe that similar (albeit slower) air quality benefits could have been secured at a lower cost to themselves by a different policy choice -- i.e., a decisi on to leave CAIR in place with only the sort of “tinkering” EP A was expressly admoni shed to avoid in North Carolina -- simply is irrelevant. Finally, Petitioners’ arguments concerni ng alleged modeling errors on these points are, in any event, wrong on their merits. For example, Florida Utilities’ suggestion that Florida’s linkage to Harri s County, Texas, must be unreasonable because changes in EGU emissions were not linearly related to changes in maximum modeled impacts at downwind re ceptors (FL Utils. Mot. at 5-6) is simplistic and demonstrably incorrect. As explained in the attached EPA declarations, Petitioners’ arguments on th ese points misunderstand or ignore the USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 48 of 8442 complexity of the air quality models devel oped to take into consideration myriad complex factors that influen ce pollution transport. See Timin Decl. ¶ 5-16; see also Napolitano Decl. ¶¶ 44-52. Properly understood, this modeling demonstrates that Florida’s ozone contributions to receptors in Harris County, Texas, substantially exceeds the threshold used in the significant contribution analysis for the final Transport Rule. Timin Decl. ¶ 16. For all the foregoing reasons, Petitioners’ arguments concerning modeli ng vs. monitoring data are meritless. E. EPA Adequately Considered Tr ansmission Constraints and Localized Grid Reliability Issues. Entergy, We Energies, and the Kansas Utilities raise various arguments that EPA’s modeling failed to consider transm ission constraints and did not adequately analyze localized grid reliability issues. None of the Petitioners’ arguments shows any likelihood of success on the merits. Entergy argues that the IPM 34 that EPA used to establish State emissions budgets is flawed and should not be used to establish budgets because it does not take into account transmission constraints. Entergy Mot. 8-9. This is a particularly odd argument for Entergy to make, as Ente rgy affirmatively supported EPA’s use of IPM to establish State emissions bu dgets in its comments to the agency.

34 IPM is an economic model, used to determine the least-cost method of generating electricity. In other words, it forecasts how the power sector produces electricity at least cost while meeting energy demand, reliability constraints, and environmental requirements. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 49 of 8443 Comment by Entergy Servs., Inc., EPA- HQ-OAR-2009-0491-2847, at 2 (“Entergy Cmt.”) (Attachment 4). Although some as pects of IPM were updated as identified in a NODA (75 Fed. Reg. 53,613), aspect s of IPM that Entergy now claims are flawed, including the manner in which the model considers transmission constraints, voltage support requirements , load pockets and other reliability rules imposed on the transmission system (Entergy Mot. at 8), 35 are aspects of the model that Entergy was well aware of and were not altered in a ny way between the version of IPM used for the proposal mo deling and the version used for the final rule modeling. Napolitano Decl. ¶ 48. Notwithstanding, Entergy commented that “with the right assumptions, IPM adequately depicts future demand needs at regional and state levels .” Id. (emphasis added). 36 Thus, Entergy’s argument that EPA relies on a flawed application of IPM was not presented to EPA -- indeed, directly contradicts its comments to EPA -- and fails to show that EPA’s reliance

35 The terms “transmission constraints” and “bottle necks” generally refer to limits on the ability of the transmission gr id to move power from where it is generated to where it is consumed. The extent to whic h these limits are constraining may depend on numerous fact ors, including demand (they are most likely to be constraining when demand is high). “Voltage requirements” are requirements to maintain grid voltage at prescribed leve ls. “Load pocket” generally refers to an area with units th at must run during periods of peak demand, generally because there are limits on importing power to meet peak load. 36 The only changes Entergy suggested with regard to IPM’s assumptions pertained to certain natural gas assumptions, id. , which were addr essed by changes EPA made in the final rule, see Transport Rule Primary Response to Comments (June 2011), EPA-HQ-OAR-2009-0491- 4513, at 2141-42 (Attachment 6). USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 50 of 8444 on IPM for establishing State budgets was ar bitrary. Moreover, this Court has previously upheld the use of IPM for th ese purposes. Appalachian Power Co. v.
EPA , 249 F.3d 1032, 1053-54 (D.C. Cir. 2001). Furthermore, contrary to the asserti ons of Entergy and other Petitioners (We Energies Mot. at 15, KS U tils. Mot. at 19), EPA did take into account transmission constraints both in establishing State emissions budgets using IPM and in allocating emissions allowances to individual units. EPA’s IPM projections for the Transport Rule explicitly take into acc ount regional constraints on electricity transmission, informed by planning studies conducted by the North American Electric Reliability Corporation (“NERC”), an entity that is federally mandated to ensure electric system reliability. Na politano Decl. ¶¶ 52-53. IPM’s thirty-two modeling regions are constructed to capture , directly within the model, significant limitations of the existing grid to deliv er least-cost electricity under various scenarios. Id. ¶ 54. Additionally, EPA modified its met hod of allocating emissions allowances to individual units between the proposed and final rule, in pa rt, to respond to comments regarding localized transmission c onstraints. Entergy and others raised concerns that IPM did not take into acc ount localized transmission constraints and therefore it was a poor tool on which to base unit-speci fic emissions allocations. E.g., Entergy Cmt. at 2-3; We Energi es Cmt., EPA-HQ-OAR- 2009-0491-2629, at USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 51 of 8445 6-7; New Orleans City Council Cmt ., EPA-HQ-OAR-2009-0491-2719, at 2; Louisiana Energy and Power Auth. Cm t., EPA-HQ-OAR-2009-0491-3738, at 7- 10. Entergy commented that the limitati ons in the way IPM addresses transmission constraints and other related issues woul d have “limited impact for state-level modeling results,” but might become proble matic at the individual unit level. Entergy Cmt. at 3. Ente rgy’s comments suggested that these transmission issues could be addressed by changing the basis for unit-specific emissions allocations to historic heat input, which is exactly what EPA did in the final rule. Id. In the final rule, EPA based unit-level allowance allocations not on IPM projections, but instead on a combination of historic heat input and historic emissions data. 76 Fed. Reg. at 48,288; Na politano Decl. ¶ 55. These historic data necessarily reflect specific unit-level be havior that may be driven by local transmission constraints and other operationa l needs of the grid, meaning that unitlevel allowance allocations under the final Transport Rule acknowledge and account for the historic response of these un its to maintain electric reliability. Id. In short, the contention (Entergy Mot. at 8; We Energies Mot. at 15) that EPA ignored an important aspect of the problem or failed to consider real-world data is simply wrong. That EPA’s Revisions Proposal, 76 Fed. Reg. 63,860 (Oct. 14, 2011), proposes to adjust a handful of State budgets (Louisiana, Mississippi, Texas, New USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 52 of 8446 Jersey, and New York) to address localized issues such as transmission constraints affecting unit dispatch based on unit-specific information provided to EPA after the Transport Rule was final does not show that the model was flawed or that the emissions budgets are arbitrary, as Entergy and others suggests. See Entergy Mot. at 8. Rather, the Revisions Proposal demonstrates that unit-specific assumptions in IPM can be adjusted to address more lo calized transmission constraints when EPA is provided sufficient information to ma ke the adjustments. However, such localized, unit-specific transmission constr aints are rarely publicly available, Napolitano Decl. ¶ 54; thus, EPA could not ha ve considered them as part of the rule unless utilities provided this informa tion. The generalized comments by We Energies and the Kansas Utilities as to lo calized constraints did not provide EPA with sufficient information to incorporate them into the model. Likewise, despite Entergy’s clear understanding of IPM and its treatment of transmission constraints, Entergy provided EPA with the information it needed only after the rule was finalized. Napolitano Decl. ¶ 131; see, e.g. , Entergy Mot. Ex. 3. Moreover, the unit-level adjustments that EPA proposes affect only 3% of the 3,632 units covered by the final rule. Napolitano Decl. ¶ 135. While Entergy claims the model made incorr ect predictions with regard to 26 units in Louisiana, Mississippi, and Arkansas, EPA is proposing to adjust the assumptions for only 17 units in Louisiana and Mississippi. Id. ¶ 136. Overall, the proposed revisions USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 53 of 8447 would increase total seasonal NOx budge ts by only 2%, which contradicts Entergy’s suggestion of some sort of “f undamental” flaw in the model. Id. ¶ 136. Finally, Petitioners’ claim that EPA’s assumptions and modeling will lead to reliability problems (Entergy Mot. at 10, 13- 18; KS Utils. Mot. at 19; We Energies Mot. at 15) fails because it ignores the i nherent flexibility in an emissions trading program and relies on the erroneous assumpti on that units that were allocated zero or a small number of allowances will be un available to meet el ectricity demands in constrained areas. The Transport Rule doe s not set emissions limits for individual units, but rather allows EGUs flexib ility to choose among a combination of compliance options, including trading allowa nces, to stay within established State budgets. See Napolitano Decl. ¶¶ 11, 18. Thus, EPA reasonably found that the rule provides enough flexibility for c oordination among regional transmission entities and utilities to address local grid issues. Napolitano Decl. ¶ 57. F. The Budgets for the State of Wisconsin Are Not in Error. The Dairyland and Wisconsin Motions contend that EPA made erroneous assumptions as to whether seven coal-fire d EGUs in Wisconsin currently have or will have environmental cont rols (flue gas desulfurization or “scrubbers” for SO 2 and selective catalytic reduc tion, “SCR,” for NOx). Dairyland Mot. at 10-12; WI Mot. at 7. Both motions, like WPSC’s before them, argue that these alleged technical errors lowered the final 2012 NOx and SO 2 budgets for the State of USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 54 of 8448 Wisconsin by “tens of thousands of tons.” Dairyland Mot. at 12. As EPA already explained in its response to the WPSC Motion, document 1337434, at 13-14, these claims are substantially false and are grea tly exaggerated. In fact, EPA made only one incorrect assumption about controls that would be in place in 2012, as to just one of the seven units in question. Id. As to this lone error affecting Wisconsin’s 2012 budgets, EPA has proposed to incr ease Wisconsin’s annual NOx budget by 2,437 tons (less than 8%), hardly the “ten s of thousands” of tons that the movants posit. The factual errors that the movant s allege simply did not occur (save the exception noted above), Wisconsin’s 2012 budgets are not materially lower as a result, and, obviously, no irreparable ha rm can result from non-existent errors. G. The Transport Rule Reasonab ly Applies to Emissions in 2012. A recurring assertion in these motio ns is that the Transport Rule’s compliance time frame is unreasonably s hort because the rule sets emissions budgets that will require emissions reductions in 2012. The Petitioners assert that EPA’s decision to establish requirement s for 2012 was arbitrary and capricious (see, e.g. , OH Mot. at 11-14) or that the compliance time frame will lead to irreparable harm (see, e.g. , We Energies Mot. at 15 -16; UARG Resp. at 11). Regardless of how framed, these complaints about th e compliance schedule disregard the applicable law and essentia l facts about the Tran sport Rule. While the Petitioners may desire l onger compliance deadlines, EPA reasonably reads this USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 55 of 8449 Court’s holding in North Carolina as foreclosing a later compliance deadline, as the Court rejected the CAIR Phase II compliance date of 2015 and directed EPA to harmonize the requirements of any rule gove rning interstate transport with the deadlines for attainment of the NAAQS in downwind States. 531 F.3d at 911-12. As a result, the Transport Rule deadlines are coordinated, as they must be, with the attainment dates for the relevant NAAQS . 76 Fed. Reg. at 48,214, 48,277-79. Moreover, this Court admonished EPA to replace CAIR expeditiously. North Carolina , 550 F.3d at 1178. Thus, CAIR its elf and this Court’s decisions addressing CAIR put States and sources fu lly on notice that requirements to reduce NOx and SO 2 were right around the corner. The Petitioners’ expressions of surprise and consternation about the rule’s 2012 compliance deadline thus ring hollow th ree years after this Court remanded CAIR. The Petitioners are e qually aware of the Act’s express requirement that SIPs “contain adequate provisions prohibit ing . . . any source or other type of emissions activity within the State fro m emitting any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other St ate with respect to [a Na tional Ambient Air Quality Standard (“NAAQS”)].” 42 U.S.C. § 7410(a )(2)(D)(i)(I). This provision imposes an affirmative, self-executing obligation on the States to address emissions from the State significantly contributing to nonattainment or interfering with USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 56 of 8450 maintenance in other States, irrespective of EPA action and irrespective of whether a State was originally included in CA IR. Thus when EPA promulgated the NAAQS addressed by the Transport Rule – in 1997 and 2006 – States were required to submit to EPA revisions to th eir SIPs to address implementation of the revised NAAQS, including the requirement of section 110(a)(2)(D)(i)(I). 42 U.S.C. § 7410(a)(1). Thus, States claiming now to be faced with an untenable deadline have already had either six or fourteen y ears to address significant contribution in a SIP, not months. And even those States that believed they had addressed their downwind issues through SIP revisions pu rsuant to the NOx SIP Call or CAIR have been on notice of the need to do more since North Carolina issued. Additionally, EPA’s approach to th e 2012 emissions budgets makes a long transition period unnecessary. The rule includes an initial phase of emission reductions starting in 2012 that, as direct ed by this Court, addresses downwind problems as expeditiously as practicab le and helps States to meet 2013 NAAQS attainment deadlines. 76 Fed. Reg. at 48,278. These reductions are not as stringent as those in the Transport Rule’s second phase (starting in 2014) because, given the shorter lead time, EPA rec ognized that the installation of postcombustion controls (which requires a longe r lead time) would not be a feasible compliance option. Rather, EPA explained that the firs t phase reductions could be achieved through an array of strategies su ch as optimizing or increasing the use of USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 57 of 8451 existing controls, fuel-switching, dispatching lower emitting units more often, or installing simpler control technologies. Id. at 48,279. Individual sources could also choose to comply by purchasing addi tional allowances through the Transport Rule’s trading program that is already operating. Id. at 48,280; Napolitano Decl. ¶¶ 13-16. EPA carefully analyzed the pr actical implications of achieving these reductions in 2012 and 2013 a nd reasonably concluded that States and sources could comply with the 2012 assurance leve ls by employing a combination of the available compliance options. 76 Fed. Reg. at 48,279-81; EPA-HQ-OAR-2009- 0491-4529, Transport Rule Engineer ing Feasibility Response to Comments. Finally, it is inaccurate and overblown to suggest, like some Petitioners, that drastic emissions reductions must be achie ved by January 2012. In the first instance, as is demonstrated throughout this brief and in our other filings, the degree of emissions reductions actually required to meet the 2012 assurance levels have largely been exaggera ted and are far more mana geable than the motions portray. Napolitano Decl. ¶¶ 17-43, 91-92, 108, 111-12. Nor is time as short as the Petitioners claim, as the rule’s firs t compliance deadlines (depending on the part of the rule to which a State is subject) are December 2012 and March 2013, by which date sources must demonstrate that they hold sufficient allowances to cover their 2012 emissions of NOx and SO 2 . 76 Fed. Reg. at 48, 277 & n.57. The merits of this case could be heard within this time frame. Moreover, controls or other USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 58 of 8452 means to reduce emissions do not have to be implemented by January 1. Rather, sources can implement measures during the course of 2012 that will contribute to their ability to demonstrate by Decemb er 2012 or March 2013 that they have sufficient allowances to comply with the 2012 emission requirements. In sum, the Petitioners are not likely to prevail on any of these merits issues. II. THE PETITIONERS WILL NO T BE IRREPARABLY HARMED ABSENT A STAY OF THE RULE Although the details vary , the Petitioners consistent ly allege two forms of irreparable injury. First, they conte nd that to comply with the rule’s 2012 emissions requirements, utilities will have no option other than reducing generation in a fashion that will undermine system reli ability and lead to blackouts. As we set forth in detail below, these claims all fa il because they ignore the rule’s flexible compliance options (such as the purchase of allowances), grossly exaggerate the degree of reductions that will be require d in 2012, rely on faulty or pre-cooked assumptions and analyses, or otherwise bypass reasonable, real-world approaches to complying with the rule in order to portray doomsday scenarios. The simple fact is that EPA’s analysis in support of the rule shows that there is no reason to believe that reliability will be threatened or that lights will go out as a result of the rule. Significantly, as discussed above (at 17-18) and below, EPA’s conclusion is confirmed by NERC’s 2011 Lo ng-Term Reliability Assessment, which found that even with the Transport Ru le and three other proposed EPA regulations in effect, USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 59 of 8453 there will be no significant change in resource adequacy and ample reserve margins in all scenarios for the year 2013. NERC 2011 LTRA (available at http://www.nerc.com/files/2011LTRA_Final.pdf ); Napolitano Decl. ¶ 57. Second, the Petitioners claim that co mplying with the Transport Rule’s 2012 requirements will be prohibitivel y expensive. Beyond the f act that thes e claims are highly speculative and the amounts plainly inflated, see Napolitano Decl. ¶¶ 17-43, 91-97, 102, they also constitute precisely the type of temporary and recoverable economic loss that this Court has found does not constitute irreparable injury. Even if taken at face value, the Petitioners ’ claims do not even approach the type of extraordinary, bet-the-company-type of economic loss that could support the extraordinary relief of a stay. Simply put, the Petitioners’ claims that they will suffer irreparable injury without a stay are at variance with the facts, the law, and

common sense. A. No Petitioner Has Shown a Realis tic, Let Alone Imminent, Threat to Reliable Electricity Generation. Given the State- and utility-specific nature of the allegations concerning reliability problems that supposedly will re sult from the Transport Rule, the below discussion is organized according to the mo tion or response raising the issue. As we show, none of the relia bility claims has merit. 37

37 The Florida Utilities Motion (at 17-18 ) makes a cursory, speculative, and unsupported assertion that, during summer hurricane season, “ if some units go USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 60 of 8454 We Energies Motion and Michigan Response. The We Energies Motion and Michigan Response both portend a “threat ” to electric power grid reliability in Michigan if a stay is not gr anted. We Energies Mot. at 10; MI Resp. at 3. Both filings greatly exaggerate the supposed th reat and are premised on demonstrably false assumptions. We Energies’s Motion is limited to anticipated 2012 compliance problems at its Presque Isle facility in Mi chigan’s Upper Peninsula and power grid reliability issues that We Energies alleges as a result. To begi n, like so many other Petitioners, We Energies claims that it has been allocated insuff icient allowances to cover anticipated 2012 NOx emissions and will be forced to curtail operations at this facility as the “only way to comply ” with the Transport Rule, compromising reliability of the power grid in Michigan ’s Upper Peninsula as a result. We Energies Mot. at 17. We Energies furt her asserts that it is “very likely” that Michigan “will significantly exceed EPA’s annual NOx a ssurance levels for 2012,” and that We Energies will incur a ssurance penalties as a result. Id. at 12, 19. This is rank speculation that contrasts sharply with the data and ignores We Energies’s other compliance options. All of these allegations fail because they are premised on the mistaken assumption that Michigan will exceed its NOx assurance

offline because they cannot meet reductions required by [the Transport Rule], the availability of reliable electricity may become a concern .” (emphasis added). Seeing as the Petitioners have not even alleged, let alone shown, a likely and imminent injury as to grid reliability, a detailed response here is not warranted. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 61 of 8455 levels in 2012. However, the most recent f our quarters of available data show that Michigan’s actual NOx emissions were 75,462 tons, continuing a consistent downward trend. Napolitano Decl. ¶ 38. This is only approximately 4,000 tons (6%) more than Michigan’s 2012 NOx assurance level. 38 Additionally, EPA has already proposed to increase Michigan’s 2012 NOx budget by 5,228 tons, 76 Fed Reg. at 63,863; therefore, if the Revisions Proposal is fi nalized, it is very unlikely that emissions from Michigan sources will exceed Michigan ’s NOx assurance level. Indeed, We Energies concedes that its complaints will be addressed by the proposed revisions, stating that its motion is merely a “protec tive measure” in case EPA does not finalize the Revisions Prop osal. We Energies Mot. at 4. We Energies ignores, among other things, that the Transport Rule includes a flexible trading program under whic h it (and other utilities) can purchase allowances. 39 EPA has already shown that the market for such allowances is up and running and that allowance purchases will be a viable compliance option for sources in 2012. See supra at 51. In short, We Energi es has failed to show that the

38 We Energies further overstates its supposed dilemma by inexplicably doing its own (predictably lower) calculation of Michigan’s 2012 NOx assurance level (the compliance benchmark) as 69,606 tons pe r year, We Energies Mot. at 9, even though the rule specifies that Michigan ’s actual 2012 NOx assurance level is 71,028 tons per year. 76 Fed. Reg. at 48,269. 39 While We Energies fails even to ac knowledge that it could buy allowances to comply with its 2012 NOx allocation, it concedes that a mark et exists when it asserts that it will be able to “trade for new allowances to replace the ones surrendered” if it is subjected to assuran ce penalties. We Energies Mot. at 19. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 62 of 8456 state-wide allowance shortfall it foresees is likely and, further, that We Energies will be unable to purchase allowances needed to comply with the rule. The identical claims in the Michigan Response (at 3) fail for the same reasons. And the State of Michigan fare s no better with its allegation (in a single paragraph at 4) about unit shutdowns l eading to reliability problems in 2012 in Michigan’s Lower Peninsula. Michigan offers no basis whatsoever for this assumption, and EPA has al ready addressed why Michig an is unlikely to have difficulties meeting its NOx assuran ce levels for 2012. Michigan’s SO 2 situation is even more favorable, as Michigan’s assurance level for 2012 (270,578 tons) far exceeds both its 2010 SO 2 emissions (243,417 tons) and its emissions in the last four quarters (233,132 tons). Napolita no Decl. ¶ 38. Michigan does not even attempt to address its compliance op tions, beyond retiring facilities, if SO 2 emissions reductions beyond current levels are needed. In short, there is no plausible basis, let alone a likely a nd imminent one, for Michigan and We Energies’s dire reliability predictions. Kansas Utilities Motion. Although wrapped in slightly different packaging, the reliability and other irreparable harm arguments in the Kansas Utilities Motion are the same as those that EPA rebutte d in its opposition to the Kansas Motion (document 1339022 at 14-16), and they fail for the same reasons. The Kansas Utilities pile one speculative assumption at op another to conjure a situation of USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 63 of 8457 reduced generation leading to strained grid reliability in the Southwest Power Pool (“SPP”) and, eventually, rolling blackouts. These reliability claims strain credulity in their own right, but are neverthele ss completely undone by the recent NERC assessment which estimates that the SPP re gion, of which Kansas is a part, will have very healthy electric ity generation reserve marg ins in 2013. NERC found that the SPP will have an “anticipated re serve margin of 23.6-25.5% in 2013,” well above their required refere nce reserve margin of 13.6%. NERC 2011 LTRA at 153, Table 38-39; see also Napolitano Decl. ¶ 66. NERC also found that the SPP reserve margin is not thr eatened by the combined imp act of the Transport Rule (and three other proposed EPA regulations in cluded in the analysis) in any of the years it studied. NERC 2011 LTRA at 152-60. EPA is acutely aware of the importa nce of grid reliability, and EPA’s analysis supports its conclusion that th e Transport Rule can be implemented both nationally and in the SPP region without causing reliability problems. Napolitano Decl. ¶ 57; EPA-HQ-OAR-2009-0491-44 55, Resource Adequacy and Reliability in the IPM Projections for the Transpor t Rule TSD (June 2011), Attachment 5. The Kansas Utilities’ reliability arguments are further undermined by the fact that the SPP analysis they rely on to clai m that service shutdowns are “highly probable,” KS Utils. Mot. at 9, is fraught with technical errors and unjustified assumptions. Napolitano Decl. ¶¶ 58-61, 66. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 64 of 8458 Additionally, and as we have shown elsewhere, the notion that Kansas Utilities “have no option but to reduce generation to meet the 2012 emissions limits,” KS Utils. Mot. at 8, flies in the face of the reality of Kansas’s likely statewide emissions in 2012 and the rule’s av ailable compliance options. After making adjustments for emissions reductions th at will occur before 2012, EPA expects that, state-wide, Kansas sources will em it below Kansas’s annual NOx assurance level and that Kansas sources will need to make NOx emissions reductions of only approximately 5,000 tons to meet the 2012 annual NOx budget, a manageable gap that could be closed by purchasing a llowances costing around $4.5 million. Napolitano Decl. ¶ 96. There is already ev idence that a robust allowance market is developing, and the Kansas Utilities offe r no credible reason why they will be unable to purchase sufficient allowances. Id. ¶¶ 13-16. 40 The Kansas Utilities also rule out purchasing power as too expensive (at 7-8), but not infeasible. However, in the unlikely event of needing to redu ce generation overall, the recoverable cost of purchasing power does not constitute irrepa rable harm, to say nothing of the fact that such costs are reasonable and to be expected as a result of an emission reduction program such as this.

40 The state-wide situation for SO 2 is even more favor able, as Kansas’s emissions in the last four quarters (41,67 1 tons) are a mere 150 tons greater than its 2012 budget (41,528 tons) and are well below its SO 2 assurance level (49,003 tons). Napolitano Decl. ¶ 21. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 65 of 8459 The motion’s utility-specific arguments (at 11-14) also lack merit. For instance, the Kansas City Board of Pub lic Utilities’s allegations are predicated on the false assumption that th ere will be no market for SO 2 allowances. Sunflower’s claims of having to reduce operations at one of its facilities are undone by its own declaration, which concedes that Sunflo wer has expedited the installation of lowNOx burners at the facility in question so that it will occur in January 2012. KS Utils. Mot., Ex. D ¶ 29. Moreover, Sunf lower’s own permit application for this project estimates that it will reduce NOx emissions by 2,000 tons in 2012, leaving Sunflower very close to operating with in its 2012 NOx allocation. Napolitano Decl. ¶ 100. As for Westar, its purpo rted “modeling” that forecasts rolling blackouts offers nothing more than pr e-cooked conclusion s, as Westar’s “modeling” began with the assumption that it could not purchase allowances or power from other utilities. By ruling out significant compliance options in advance, it is no surprise that the model “predicted” blackouts and reliability problems. KS Utils. Mot., Ex . E at 8. Westar otherwis e makes no effort to show to what degree its allowance allocati on is insufficient, let alone explain why it assumes it cannot purchase such allowances . In sum, the Kans as Utilities’ claims of reliability problems and summer blac kouts are simply not credible and do not support a stay. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 66 of 8460 Entergy Motion . Entergy’s contention that, absent a stay, it has no “realistic” options for complying with the Transport Rule other than to curtail power at “must run” units is similarly flaw ed and recycles the arguments raised in the Louisiana Motion. Like Louisiana’s, En tergy’s claims exaggerate the facts, are unsupported, and fail to take into account the flexibility under the rule to adopt a multi-pronged compliance strategy. See EPA Opp. to LA Mot., document 1340488, at 11-16, 17-18. Entergy’s assertion that no single compliance strategy will allow it to meet its predicted generation de mand and meet the rule’s 2012 compliance deadlines (see Entergy Mot. at 12) completely side steps the central question of whether Entergy can comply through a combination of compliance strategies. In promulgating the rule, EPA found that several compliance options, short of installing post-combustion controls or reduc ing generation, are available to reduce emissions in the short-term. See, e.g. , 76 Fed. Reg. at 48,279. Entergy offers only unsupported assertions (see Glover Decl.¶ 17-18) and fails to offer any specifics about the measures it considered beyond re duced generation to comply with the rule and, more importantly, why it could not undertake those measures or a combination of them. Entergy’s motion is unclear as to why it assumes that it cannot make changes to its generating fleet to redispat ch power and thus must rely solely on USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 67 of 8461 purchasing allowances. Entergy claims to have done modeling that indicates that system redispatch will be insufficient to address the predicted shortfall in allowances, Entergy Mot. at 16, however, th e referenced declaration indicates that the “modeling” pre-determined a compliance strategy of only system dispatch and did not analyze complementar y measures such as purchasing allowances. Glover Decl. ¶ 22. EPA has already shown that Entergy’s assumption that allowance markets will not develop is erroneous. See supra at 51; Napolitano Decl. ¶¶ 13-16. Further, Entergy’s assumptions regard ing adverse consequences to grid reliability are, like those of the Kansas Utilities and the State of Kansas, premised on faulty analysis by the Southwest Power Pool. See supra at 57; Napolitano Decl. ¶¶ 58-61. As noted, SPP flawed analysis is soundly rebutted by the recent NERC assessment and EPA’s reliability analysis in support of the Transport Rule. See
supra at 17-18; Napolitano Decl. ¶¶ 57, 66. At bottom, Entergy’s argument is that the Transport Rule does not allow it to continue doing what it has been doing – i.e. , operating its units at historic levels and postponing reducing its emissions through the purchase of unlimited allowances to pollute. This argument fu ndamentally ignores the requirements of section 110(a) of the Clean Air Act and th e point of the Transport Rule -- reducing emissions that cause downwind attain ment problems. Moreover, Entergy overstates its supposed compliance dilemma by exaggerating the reductions USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 68 of 8462 required in Arkansas, Louisiana, and Mi ssissippi by comparing the 2012 emissions budgets with actual 2010 emissions. In fact, 2011 ozone-season emissions were lower than 2010 ozone-season emissions in all three States, bringing actual emissions closer to the 2012 emissions budgets. Napolitano Decl. ¶ 29. Moreover, that Louisiana must re duce its emissions more than some Transport Rule States, which translates into a smaller number of allowances allocated to Entergy units there, is a harm that can be traced directly to Entergy’s own actions. Utilities in Louisiana, incl uding Entergy, opted to meet their compliance obligations under CAIR prim arily by purchasing allowances, as opposed to installing technol ogical controls. EPA Opp. to LA Mot, document 1340488, at 18; Napolitano Decl. ¶ 90. In the past two years, Entergy has purchased almost half of the total number of allowances th at it used to comply with CAIR in the three States in which it ope rates. Napolitano Decl. ¶ 90. Indeed, since the CAIR ozone-season NOx tradi ng program began in 2009, total ozoneseason NOx emissions from covered facilitie s owned by Entergy in these States actually have increased slightly. Id. In view of the Court’s holding in North Carolina that unrestricted interstate trading does not comply with CAA 110(a )(2)(D)(i)(I), 531 F.3d at 906-08, 921-22, Entergy acted at its own peril when it chos e to defer installing controls to reduce USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 69 of 8463 emissions. Having done so, it cannot now ar gue that it is irreparably harmed by the Transport Rule’s emissions reduction requirements. City of Ames Motion . 41 Like the others, Ames makes the unsupported allegation that it has “no choice” but to re duce generation to comply with the Rule and predicts dire reliability scenarios. Ames also follows suit by exaggerating the potential impact of the rule and relying on incorrect and unsupported assumptions. Ames contends that it will be “impossible” to install controls to meet the 2012 compliance deadlines and also asserts th at the market for allowances will be insufficient. Ames Mot. at 9. Ames’s alleged predicament appears to be based on its own choice not to go forward with cons truction of previously-planned controls – a business decision based on its apparent miscalculation that the Transport Rule would be less stringent than CAIR. Ames Mot. at 7-8, 16. Such self-inflicted harm is insufficient to support a stay of the rule. Cuomo , 772 F.2d at 977. Even if Ames could not install emissi ons-reducing controls, Ames fails to show that it could not comply with the rule and still generate sufficient electricity. As an initial matter, Ames exaggerates the emissions re ductions it would have to achieve to operate within its emissions a llocation. Actual emissions for the last

41 Ames seeks a stay of both the a nnual and ozone-season NOx requirements as they apply to Ames. However, Iowa is not in the Transport Rule for the ozoneseason program, 76 Fed. Reg. at 48,212, Table III-1, although EPA has proposed (but not finalized) adding Iowa to the ozone-season program. Id. at 40,662. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 70 of 8464 four quarters at Ames’s units are only 184 tons (or 24%) more than Ames’s allocation, Napolitano Decl. ¶¶ 33-34, much less than the 46% difference Ames alleges. Ames Mot. at 14. In addition, Ames’s contention that it can import very little power is greatly exaggera ted. The Trower declara tion suggests that the city can import between 54% and 72% of the combined megawatt capacity of Ames’s two-boiler EGU plant, which Ames says is 98 mega watts. See Trower Decl. ¶ 9. Thus, while Ames claims that the su mmer demand peaks as high as 128 MW, id. ¶ 11, it fails to explain why it cannot comply with the rule and meet this demand by a combination of importing power and purchas ing allowances. Ames also fails to consider that it operates two additiona l plants with capacities of 18 and 27 megawatts, respectively. Na politano Decl. ¶ 64. In s hort, Ames’s allegations simply do not withstand scrutiny. Ohio Motion . Ohio takes only a slightly di fferent approach to the general reliability claims offered by other Petitioners and argues that the Transport Rule will lead to “early retirement” of coal -fired EGUs and that these unexpected retirements will create “uncertain power service reliability” in the PJM regional transmission organization region of which Ohio is a part. OH Mot. at 18-19. 42

42 The PJM region covers all or most of Delaware, the District of Columbia, Maryland, New Jersey, Ohio, Pennsylvania, Virginia and West Virginia, and parts of Indiana, Illinois, Kentucky, Mich igan, North Carolina and Tennessee. See http://www.ferc.gov/market-oversight/mkt-electric/pjm.asp#geo

. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 71 of 8465 Ohio’s claims are not only unsupported , but are contradicted by the NERC assessment, which concluded that the PJM region will continue to have significant excess capacity in 2013 even assuming that the Transpor t Rule and three other proposed EPA regulations would be in effect. NERC 2011 LTRA at 153, Tables 38-39 (2013 projections), 156, Tables 41-42 (2015 projections). In the light of this comprehensive reliability study, comb ined with EPA’s own well-supported conclusions as to the minimal reliability and capacity effects of the rule, Ohio’s claim of likely and imminent re liability problems is far-fetched. Moreover, Ohio’s reliability allegations are based on speculation that some 150 units in the PJM region are at risk of decommissioning by 2015 . OH Mot. at 18. Ohio makes no showing that any of these decommissionings (if they were to occur at all) are imminent or would be related to the Transport Rule. See Wisconsin Gas , 758 F.2d at 674 (movant must “show that the alleged harm will directly result from the action with the movant seeks to enjoin ”) (emphasis added). 43 In sharp contrast to EPA’s and NE RC’s detailed analyses, Ohio fails to support its dire predictions of decommi ssionings and reliability problems with a declaration or other evidence and thus fa ils to meet its heavy burden to prove

43 That some older, less efficient, and di rtier plants may be shut down to comply with the Transport Rule does not, by itsel f, establish a threat to reliability, especially since Ohio does not even addr ess whether excess capacity already exists within the State or whether new, more efficient plants c ould take the place of those that are shut down. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 72 of 8466 irreparable harm justifying a stay. “Bare a llegations of what is likely to occur are of no value since the court must decide whether the harm will in fact occur.” Wisconsin Gas , 758 F.2d at 674. Like the other al legations that the Transport Rule will cause retirements and reduced generati on that undermines grid reliability and the supply of electricity, Ohio’s claims should be rejected. B. Incurring Additional Economic Costs to Comply With the Rule Does Not Constitute Irreparable Injury. Several Petitioners claim that they will be irreparably harm ed as a result of alleged substantial compliance costs associ ated with adopting emissions reductions strategies or purchasing allowances a nd by the alleged resulting increases in electric rates. However, alleged economic losses do not constitute irreparable injury except in the most extreme circumstances, i.e., where the “very existence” of a company is threatened. Wis. Gas , 758 F.2d at 674. Further, regulatory compliance costs generally do not constit ute irreparable injury. See, e.g. , Am. Hosp. Ass’n v. Harris , 625 F.2d 1328, 1331 (7th Cir. 1980); A.O. Smith Corp. v.
FTC , 530 F.2d 515, 527–28 (3d Cir. 1976). Although some Petitioners suggest (but do not demonstrate) that these cost s are unrecoverable, most acknowledge that these costs may be passed on to their rate paying customers. See, e.g. , FL Utils. Mot. at 16 (compliance options “will force . . . ultimately the Floridians who use electricity[] to incur substantial costs”). As such, any compliance costs the utilities USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 73 of 8467 might incur appear to be recoverable and do not come close to the extreme circumstances that would warrant a stay. Wis. Gas , 758 F.2d at 674. 44 Likewise, those States alleging economi c harm as a result of having to pay increased rates that allegedly will resu lt from the Transport Rule (see, e.g. , WI Mot. at 14), fail to make a sufficient show ing to justify a stay. The States make no attempt to demonstrate such costs are unr ecoverable. Regardless, Petitioners bear a heavy burden to show that the alleged costs are “both certain and great” and “of

44 Amicus Putnam County, Georgia impr operly attempts to add to the more than ample briefing on these stay moti ons by filing a response to Georgia’s response in support of Kansas’s stay mo tion that alleges economic harm from the Rule. As this Court has found, “[n]either the Federa l nor the D.C. Circuit Rules provide for amici to file or re spond to motions.” Texas v. EPA , No. 10-1425 (D.C. Cir. Jan. 12, 2011) (Order) (document 128758 6) (citing United States v. Michigan , 940 F.2d 143, 164-66 (6th Ci r. 1991) (amici “consiste ntly precluded from . . . filing pleadings, or otherwise participating . . . in a totally advers arial fashion”). If the Court considers the filing, it lacks merit. First, the alleged harm is remarkably speculative, as it is based on unsubsta ntiated predictions that the county may lose speculative amounts of tax revenue if the Georgia Power facility in the county cuts back generation as a result of the Transpor t Rule. Second, even if such alleged economic losses came to pass, Amicus ha s not shown them to be unrecoverable such that they could support a stay as a matter of law. Finally, the claim that EPA conducted “no analysis of the effect of the final rule on local governments” (at 3) is simply in error, and Amicus identifies no applicable legal requirement with which EPA failed to comply. EPA thoroughly and carefully considered the Transport Rule’s impacts on affected municipalities and local governments, evaluated such impacts on local governments consistent with the Unfunded Mandates Reform Act of 1995 (notwithstanding EPA’s determina tion that the Act does not apply to the Transport Rule), and specifically determin ed (in a passage cited by Amicus) that transfer payments, such as the potential lo ss of tax revenue that Amicus posits, are not among the “social costs” that are a ppropriate to consider in cost/benefit analysis. See 76 Fed. Reg. at 48,313, 48,345. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 74 of 8468 such imminence that there is a ‘clear and pres ent’ need for equitable relief to prevent irreparable harm.” Wis. Gas , 758 F.2d at 674 (citations and internal quotation marks omitted). The States’ bare allegations that their electric rates likely will increase do not satisfy this burd en. Moreover, the States’ argument is undercut by EPA’s thorough analysis of compliance costs, which predicted only a small increase in average retail electricity prices in the contiguous U.S. (1.7 percent in 2012 and 0.8 percent in 2014). 76 Fed. Reg. 48,346-47. To the extent the States argue that th e rule will result in higher electric rates for their citizens, the States lack standing to raise such injuries. In claims against the United States premised on federal law, a State must base its standing on alleged injuries to itself as a State, not as parens patriae for the interests of its citizens or businesses. See Ctr. for Biological Diversity v. DOI , 563 F.3d 466, 476-77 (D.C. Cir. 2009). 45 In sum, none of the Petitioners has shown the type of economic injury that rises to the level of irre parable harm.

45 Another injury alleged by the States of Wisconsin, Ohio, and Indiana (and others) is that EPA’s decision to pr omulgate FIPs somehow usurps State sovereignty. This purported injury ar gument is merely a re-packaging of the Petitioners’ merits argument, to which we responded supra at 19-24 by demonstrating the legality of EPA’s appr oach in the rule. The Petitioners can hardly be irreparably injured by EPA’s co rrect and lawful implementation of the Clean Air Act. If the Court nonetheless reaches this issu e, EPA incorporates its response in opposition to the Kansas Motion. Document 1339022 at 17. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 75 of 8469 III. A STAY WOULD HARM THIRD PARTIES AND IS CONTRARY TO THE PUBLIC INTEREST The Petitioners are no more rigorous or persuasive in their attempts to balance, on the one hand, thei r alleged irreparabl e harm if a stay is denied and, on the other, the harm to the public if the Transport Rule is stayed pending judicial review. In claiming that the public will not be negatively affected if the rule is stayed, the Petitioners present variations on the same two flawed arguments that we have rebutted in prior filings, namely that maintaining CAIR (in whole or in part) during a stay is functionally the same as implementing the Transport Rule and that, by proposing in the Revisions Proposa l to delay the effective date of the assurance provisions until 2014 , EPA has somehow conceded that a stay is in the public interest. Neither of th ese arguments has merit. Before addressing these specific argu ments, it bears emphasis that the Petitioners have advanced tw o completely contradictory propositions. First, they ask this Court to find that the Transport Rule will be so onerous that it imminently threatens forced unit retirements, grid reliability, system blackouts, and the Petitioners’ financial viability. Yet in the very next br eath, they claim that the Court needn’t worry about the effects of a st ay because the Trans port Rule is really no different than maintaining the status quo (i.e., operating under the requirements of CAIR, State laws, and consent decrees) and that the Transport Rule could be stayed without affecting air quality, ha rming the public health, or otherwise USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 76 of 8470 affecting the public interest. The Petitione rs simply cannot have it both ways. In any case, we have already shown that they have not established irreparable injury and below we show that the balance of harms favors denying their stay requests. A. Staying the Rule and Leaving CAIR in Place Pending Judicial Review Would Deprive the Public of Substantial Air Quality and Health Benefits. The Petitioners do not seriously disput e the enormous air quality and health benefits that will result from the Transport Rule. The lost bene fits to the public overwhelmingly outweigh the rule’s costs, including the specious harms that the Petitioners assert. Each year, the ru le will prevent between 13,000 and 34,000 premature deaths; 15,000 non-fatal heart attacks; 19,000 hospital visits; 19,000 cases of acute bronchitis; 400,000 incide nces of aggravated asthma; and 1.8 million missed school or work days. 76 Fed. Reg. at 48,310. The monetized value of these health and welfare benefits is immense, between $120 billion and $280 billion annually, id. at 48,313, amounts that dwarf the $1.4 billion the Florida Utilities Motion (at 19) claims the rule will cost to implement in 2012. While the Southern Company Response purports to analyze how emissions reductions required by the Transport Rule would compare to reductions in 2012 if CAIR were to remain in effect, its analys is fails because it uses the wrong metrics, faulty methods, and invalid assumptions. Napolitano Decl. ¶¶ 82-85. To take just one example, when Southern Company pu rports to show how “CAIR and CSAPR USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 77 of 8471 [the Transport Rule] achieve similar to tal EGU emission reductions” in 2012 (at 11), it doesn’t compare projected emissions at all. Rather, Southern Company compares emissions budgets under the two regimes, mean ing that the analysis fails to account for the enormous quantity of banked (i.e., already allocated) SO 2 and NOx allowances that, if CAIR were to remain in effect for 2012, would allow States to emit well in excess of thei r CAIR budgets. Due to these abundant allowances that Southern Company igno res, CAIR, unlike the Transport Rule, would not effectively constrain source emi ssions in 2012. Napolitano Decl. ¶ 83. Worse still, Southern Company’s analysis used an outdated EPA analytical tool from the proposed, not the final, Transpor t Rule, Southern Co. Resp. at 12, even though EPA greatly improved the accuracy of this tool between the proposed and final rules. Na politano Decl. ¶ 84. The emissions projections tell a much simpler and more compelling story. Emissions will be reduced far more in 201 2 under the Transport Rule than if CAIR remains in effect. By 2012, power plants in States common to both the Transport Rule and CAIR will reduce their annual SO 2 and NOx emissions by approximately 1.5 million and 116,000 tons more, respec tively, than they would have under CAIR. Id. ¶ 121. In 2014, SO 2 and NOx emissions under the Transport Rule will continue to be reduced to a greater degree than if CAIR were to remain in effect (by 1.8 million and 76,000 tons, respectively). Id. Thus, delaying the USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 78 of 8472 implementation of the Transport Rule and reducing the emissions of these pollutants above and beyond CAIR will also delay the accompanying reduction in health impacts, including asthma and ot her pulmonary and cardiac diseases. Id. The claims that the first two years of the Transport Rule “will not result in meaningful environmental benefits be yond those mandated by CAIR” (Dairyland Mot. at 20) or that the marginal benefits are “negligible” (IN Mot. at 10) simply do not withstand scrutiny. A stay would also negatively affect th e regulated community and the States in their regulatory capacity. As we di scussed above, the emissions market has already transitioned from CAIR to the Tran sport Rule, and a market for Transport Rule allowances is already established and trading. A sudden shift back to CAIR as a result of a stay would disrupt those markets. Companies have also already begun to develop compliance plans for 2 012 that anticipate the Transport Rule being in effect. States, too, will be nega tively affected because shifting back to CAIR would engender uncertainty in th eir development of NAAQS attainment plans. This confusion would be com pounded by the fact that there is not a complete overlap of States covered by CAIR and the Transport Rule. Napolitano Decl. ¶ 128. The argument that a partial stay, i.e., only as to one or a few States, would be benign is equally fallacious. See KS Utils. Mot. at 19-20; We Energies Mot. at 2; USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 79 of 8473 GA Utils. Mot. at 20. Having just one or a handful of States be covered by CAIR pending judicial review would distort CAIR trading rules and essentially give those States a free pass to pollute because they would have unf ettered access to artificially cheap NOx and SO 2 allowances. Napolitano De cl. ¶¶ 122-27. The data show that when allowances are available at very low cost, sources tend to increase their emissions, id. , meaning that populations in States downwind of the State(s) operating under CAIR instead of the Tr ansport Rule would be affected by disproportionately larger em issions from such States. Moreover, a partial stay for a State like Kansas that is not subject to CAIR would result in Kansas not being subject to either rule and being able to emit more NOx and SO 2 than if it were subject to the Transport Rule. These greater emissions will have the same predictable deleterious health impacts on re sidents of Kansas and the seven States downwind of Kansas. See EPA Opp. to KS Mot., doc ument 1339022, at 18. Such a result would also clearly conflict with this Court’s reasoning invalidating CAIR’s trading program in North Carolina . See 531 F.3d at 907 (criticizing theoretical possibility under CAIR that sources c ontributing to downwind problems “would not need to reduce their emissions at all” if they “could purchase enough . . . allowances to cover all their current emissions”). USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 80 of 8474 B. EPA’s Revisions Proposal Has No Bearing on Whether a Stay Is in the Public Interest. The Court should reject Petitioners ’ attempt to use EPA’s Revisions Proposal to bootstrap a basis for a stay pendi ng judicial review. Contrary to their arguments (see, e.g. , OH Mot. at 20; UARG Resp. at 11, FL Utils. Mot. at 13-14), EPA’s Revisions Proposal does not concede major errors. Rather, the Revisions Proposal reflects relatively minor adjustme nts to a handful of State emissions budgets and assurance provision s, based on information br ought to EPA’s attention after issuance of the final rule. See, e.g., supra at 45-47; Napolitano Decl. ¶¶ 130- 31. If anything, the possibility that EPA may adopt revisions that increase some State budgets and assurance levels and de fer the rule’s assurance provisions until 2014 makes any harm allegations that much more speculative. Indeed, at least one Petitioner (We Energies Mot. at 4) argues th at the irreparable harm it alleges would occur only if EPA does not adopt the Revis ions Proposal, and no Petitioner covered by the Revisions Propos al goes so far as to say th at it would be insufficient to remedy the harm they allege. See, e.g. , Entergy Mot. at 10. Nor does EPA’s Revisions Proposal suggest that EPA believes a stay of the rule pending judicial revi ew is appropriate. See GA Resp. at 5; AL/MS Resp. at 10. It is misleading to suggest that EPA’s proposal to suspend the assurance provisions of the Transport Rule temporar ily is tantamount to staying the rule pending judicial review. If adopted, EP A’s proposal to suspend the assurance USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 81 of 8475 provisions until 2014 merely suspends th e requirement that the total emissions from within a State not exceed the State’s assurance level. 76 Fed. Reg. 63,861. In other words, suspending the assuranc e provisions means that EPA would not enforce the assurance levels prior to 2014 . Nevertheless, other provisions of the rule would still apply and the rule’s enorm ous benefits would begin to accrue. For instance, even if EPA finali zes the Revisions Proposal, the rule would still achieve region-wide reductions in emissions starting in 2012. See 76 Fed. Reg. at 63,871. Additionally, States and utilities would be responsible for taking steps now to ensure that they could demons trate compliance in 2014. In contrast, if a stay is granted, th e status quo would be maintained and these parties would be relieved of complying with any Transport Rule requirements pending judicial review, including making preparations to comply with requirements that do not take effect until 2014. In such circumstances, the enormous benefits of the rule needlessl y would be deferred until long after the Court rules on the merits. CONCLUSION For all the foregoing reasons, the pendi ng stay motions should be denied. USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 82 of 8476 Respectfully submitted,
IGNACIA S. MORENO Assistant Attorney General /s/David S. Gualtieri DAVID S. GUALTIERI JON M. LIPSHULTZ JESSICA O’DONNELL NORMAN L. RAVE Environmental Defense Section Environment and Natural Resources Division United States Department of Justice P.O. Box 23986 Washington, D.C. 20026-3986 (202) 514-4767
OF COUNSEL SONJA RODMAN BYRON BROWN KAYTRUE TING United States Environmental Protection Agency 1200 Pennsylvania Ave., N.W. Washington, D.C. 20460 DATED: December 1, 2011 USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 83 of 84CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing consolidated opposition to motions for stay pending judicial review were served, this 1s t day of December, 2011, on all registered counsel, thro ugh the Court’s CM/ECF system.

/s/David S. Gualtieri David S. Gualtieri United States Department of Justice/ENRD Counsel for Respondent EPA USCA Case #11-1302 Document #1345210 Filed: 12/01/2011 Page 84 of 84