UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

___________________________________

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Natural Resources Defense Council )

and State of New Jersey, )

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Petitioners, )

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v. ) No. 09-1198

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United States Environmental )

Protection Agency, )

)

Respondent. )

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----------------------------- )

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State of New York et al., )

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Intervenors. )

___________________________________ )

RESPONDENT EPA’S REPLY IN FURTHER 

SUPPORT OF MOTION FOR VOLUNTARY REMAND

AND PARTIAL VACATUR

On June 6, 2013, Respondent the United States Environmental Protection 

Agency (“EPA”) moved for an order that would resolve this case by remanding the 

CAIR-RACT1“determination” challenged by Petitioners, and by vacating and 

remanding the CAIR-RACT “presumption.” See generally Doc. No. 1440010

 

1

“CAIR” refers to the Clean Air Interstate Rule, 70 Fed. Reg. 25,162 (May 12, 

2005). “RACT” refers to the Clean Air Act’s requirements for “reasonably 

available control technology.” 
2

(“EPA Mot.”). Relevant background concerning the determination and 

presumption are provided in EPA’s motion. Id. at 1-12.

Petitioners the Natural Resources Defense Council (“NRDC”) and 

Intervenor-Petitioners New York and Connecticut (collectively, “Petitioners”) filed 

a joint response to EPA’s motion, and Intervenor-Respondent Utility Air 

Regulatory Group (“UARG”) also responded. UARG does not object to EPA’s 

request to remand the CAIR-RACT determination, and also would not object to a 

remand of the presumption, but contends that the presumption should not be 

vacated. See Response of [UARG] to Respondent’s Motion for Voluntary Remand 

and Partial Vacatur (“UARG Resp.”) at 2-5 (filed June 20, 2013). Petitioners, 

conversely, support EPA’s request to vacate the presumption, but ask the Court to 

impose a deadline in conjunction with remand of the determination by instructing 

EPA “to complete a remand rulemaking within six months of the Court’s order.” 

See Response By [Petitioners] to EPA’s Motion for Voluntary Remand and Partial 

Vacatur (“Petitioners’ Resp.”) at 1, 10 (filed June 20, 2013). 

Notwithstanding these objections – which are addressed below – the relief 

EPA requests is appropriate in light of, and consistent with, the Court’s decision in 

the related case NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009). Therefore, the 

Court should grant EPA’s motion without altering the requested relief. 
3

I. THE CAIR-RACT PRESUMPTION INDISPUTABLY CONFLICTS 

WITH THE COURT’S 2009 HOLDING IN NRDC v. EPA AND 

THEREFORE SHOULD BE VACATED.

As summarized in EPA’s opening memorandum, in NRDC the Court held, 

based on a plain reading of the statutory text, that the Clean Air Act’s RACT 

requirement “calls for reductions in emissions from sources in the area; reductions 

from sources outside the nonattainment area do not satisfy the requirement.” 571 

F.3d at 1256 (emphasis added). The Court thus invalidated EPA’s “determination” 

that sources’ participation in the NOX SIP Call regional emissions-trading program 

constituted compliance with RACT, because EPA had “not shown that NOX SIP 

Call compliance will result in at least RACT-level reductions in emissions from 

sources within each nonattainment area.” Id. (emphasis added). The Court further 

explained that, on remand, EPA could reinstate this determination for a particular 

area only if its technical analysis showed that sources in that area would achieve 

RACT-level emissions reductions. See id.; see also EPA Mot. at 9-10. 

UARG does not dispute this summary of the Court’s essential holding in 

NRDC. Nor does UARG dispute that EPA based the CAIR-RACT presumption on 

a statutory interpretation that is no longer valid after the Court’s 2009 decision –

i.e., the premise that participation in a regional trading program satisfies RACT as 

long as the overall emissions reductions obtained throughout the region are greater 
4

than what could be obtained through source-by-source application of RACT 

controls. See, e.g., EPA Mot. at 18 (quoting the justification for the CAIR-RACT 

presumption that EPA asserted in its merits brief in NRDC). The Court squarely 

rejected this interpretation in NRDC. See 571 F.3d at 1256 (holding that EPA 

could not validly determine RACT compliance on the basis that the “NOX SIP Call 

[was] estimated to achieve a beyond-RACT degree of control regionally”) 

(emphasis added); EPA Mot. at 10. 

UARG’s primary argument is that the presumption need not be vacated 

because EPA’s final rule preamble establishing the presumption makes clear that 

the presumption is rebuttable and that States “will have to respond to any 

comments received during the comment period that address the presumption.” 

UARG Resp. at 3-4. However, the final rule preamble also made clear that the 

presumption does not require States, in the first instance, to affirmatively develop a 

technical analysis supporting their reliance on the CAIR-RACT presumption. 

Rather, “the State may choose to provide supporting analyses.” 72 Fed. Reg. 

31,727, 31,734 (June 8, 2007)2(emphasis added) (quoted in UARG Resp. at 3). 

This approach is no longer valid after the NRDC decision. See 571 F.3d at 1257 

(EPA may only reinstate its determination of NOX SIP Call-RACT equivalency in 

 

2

“Phase 2 of the Final Rule to Implement the 8-Hour Ozone National Ambient Air 

Quality Standard – Notice of Reconsideration.”
5

those nonattainment areas where technical analysis shows that sufficient emissions 

reductions will be achieved from sources in the area); EPA Mot. at 17-19.

UARG also contends that EPA has failed to explain why other factors it 

originally cited in its merits brief defending the CAIR-RACT presumption fail to 

establish a legally valid basis for it. See EPA Mot. at 18-19 n.9; UARG Resp. at 5. 

These factors included: (1) “the special attributes of EGUs, including the unique 

interrelated nature of the power supply network”; (2) the likelihood that CAIR 

compliance “will achieve a more effective and economically efficient air quality 

improvement in nonattainment areas than application of source-by-source RACT”; 

and (3) the fact that the 2009 CAIR emissions cap “reflects the maximum total 

capacity of controls that EGUs feasibly could install by that date.” Revised Final 

Brief of EPA at 80-81 (quoting 72 Fed. Reg. at 31,730-31). However, none of 

these factors, considered alone or collectively, supports any reasonable inference 

that compliance with the CAIR emissions trading program will result in RACTlevel emissions reductions from sources “within each nonattainment area,” 571 

F.3d at 1256, because the trading program (like the NOX SIP Call trading program 

at issue in the Court’s 2009 decision) allows sources to comply with CAIR by 

purchasing emissions allowances from sources located outside of the area. 

Therefore, the above-quoted factors fail to establish a basis for presuming, in any 
6

particular nonattainment area, that sources’ compliance with CAIR will meet the 

legal standard for RACT equivalency established by the Court’s 2009 decision.

Finally, UARG has made no showing that utilities or States submitting SIP 

revisions for EPA approval will be prejudiced if the Court vacates the CAIRRACT presumption. EPA’s practice since the 2009 decision has been not to rely 

on the presumption (or the CAIR-RACT or NOX SIP Call-RACT determinations) 

in deciding whether to approve SIPs, but instead to evaluate RACT compliance by 

considering, inter alia, the controls that will be installed at sources in each pertinent 

nonattainment area and the emissions reductions obtained or expected from such 

sources. See, e.g., 78 Fed. Reg. 15,895, 15,901 (Mar. 13, 2013) (in reviewing SIP 

revisions for North Carolina, EPA proposed “to not approve the presumption or 

determination that CAIR or the NOX SIP Call constitutes RACT . . . . However, 

after evaluating controls at individual point sources, EPA has determined that the 

point sources in the area have implemented RACT.”)3; 78 Fed. Reg. 10,583, 

10,587-88 (Feb. 14, 2013) (similar analysis supports EPA’s proposal to approve 

SIP revisions for Massachusetts); see also 78 Fed. Reg. 34,178, 34,193 (June 6, 

2013) (under proposed implementation rule for the 2008 ozone NAAQS, States 

likewise must “demonstrat[e] that compliance with a regional trading program by 

 

3 See also id. at 15,901-02 (discussing RACT analysis); 78 Fed. Reg. 27,065 (May 

9, 2013) (final action approving the North Carolina SIP revisions).
7

certain sources within a nonattainment area, will achieve RACT-level reductions 

for those sources within the nonattainment area”). Thus, vacatur of the 

presumption would leave affected parties subject to the same regulatory status quo 

that has been in place since the Court’s 2009 decision. 

II. VOLUNTARY REMAND OF THE CAIR-RACT DETERMINATION 

IS CONSISTENT WITH THE COURT’S 2009 DECISION AND DOES 

NOT REQUIRE IMPOSITION OF A DEADLINE. 

EPA seeks the same form of relief regarding the CAIR-RACT

determination as that previously granted by the Court with respect to the NOX Sip

Call-RACT determination, i.e., remand without vacatur. See NRDC, 571 F.3d at

1257. As EPA’s initial motion explained, such relief is appropriate for the same

reason the Court gave in its 2009 opinion concerning the NOX SIP Call-RACT

issue – that is, EPA may find the CAIR-RACT determination is still justified for

particular nonattainment areas based upon area-specific analysis. EPA Mot. at 16. 

Petitioners ask, however, that the Court condition its order by requiring EPA

“to complete a remand rulemaking within six months.” Petitioners’ Resp. at 10. 

This is a wholly unjustified request. Under the Clean Air Act, the Court has

authority only to “reverse” challenged agency action found to be flawed on judicial

review. 42 U.S.C. § 7607(d)(9). General claims of “unreasonable delay” must be

brought in district court. Id. § 7604(a). While this Court has authority to establish
8

deadlines for unreasonably delayed compliance with its own remand orders in the

context of a mandamus petition, no such petition has been filed here, nor could

such extraordinary relief possibly be justified on the present record, where the

requested remand has not even been granted yet. See, e.g., NRDC v. EPA, 489

F.3d 1364, 1375 (D.C. Cir. 2007) (“We decline to set a two year limit on EPA’s

proceedings on remand as the NRDC requests; mandamus affords a remedy for

undue delay.”); North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008)

(per curiam); NRDC v. EPA, 706 F.3d 428, 437 n.10 (D.C. Cir. 2013). 

4

Obviously, it is impossible to say that EPA has unreasonably delayed

compliance with an order that has not been issued yet. And because no actionable

“unreasonable delay” has occurred – that is, because the Court does not have

before it a proper petition for mandamus relief – the course of proceedings in this

case to date is irrelevant to the question of what prospective relief the Court

 

4 Environmental Def. Fund v. EPA, 852 F.2d 1316 (D.C. Cir. 1988) is not a 

relevant precedent. There, EPA had missed by nearly five years a deadline in the 

Resource Conservation and Recovery Act (“RCRA”) to complete certain studies

and submit them to Congress, and the Court found that EPA also was in violation 

of a court-ordered deadline. Id. at 1331. Petitioners further cite EPA’s January 

2013 promulgation of the final revised national ambient air quality standards 

(“NAAQS”) for particulate matter, which also is inapposite; that rulemaking was 

subject to a consent decree deadline agreed to after EPA missed the Clean Air 

Act’s five-year review deadline for the particulate matter NAAQS and was sued in 

district court under 42 U.S.C. § 7604(a). 
9

should grant. But even if it was appropriate to consider the history of this matter,

a fair reading of it would support EPA’s position, not Petitioners’. 

First, it is inaccurate to say that EPA’s preamble statement setting forth

the CAIR-RACT determination poses a “threat to public health.” Petitioners’

Resp. at 8. The preamble statement is not self-implementing. Rather, CAIRRACT can only be implemented if and when a State submits SIP revisions relying

on that determination, and EPA approves such a submission. Petitioners, however, 

have not identified even a single SIP approval that relied on the CAIR-RACT

determination. Indeed, as shown above, EPA’s practice since the Court’s 2009

decision is not to rely on either the NOX SIP Call-RACT determination or the

CAIR-RACT determination (or presumption), but instead to evaluate RACT

compliance by considering, inter alia, the controls that will be installed at sources

in each pertinent nonattainment area and the emissions reductions obtained or

expected from such sources. Supra at 6-7 (citing recent proposed and final SIP

approval actions). 

Second, there has been no previous “track record of delay” that would justify

imposing an arbitrary six-month deadline on remand. Petitioners’ Resp. at 8. With

respect to the NOX SIP Call-RACT determination, EPA has responded

appropriately to the Court’s 2009 remand by adopting precisely the approach the
10

Court indicated would be necessary to comply with the statutory mandate. 

Compare, e.g., NRDC, 571 F.3d at 1258, with 78 Fed. Reg. at 15,901-02. With

respect to the CAIR-RACT determination, all parties in this case either joined in

requesting, or did not oppose, abeyance of further judicial proceedings until this

year pending the outcome of the North Carolina and EME Homer City litigation. 

See EPA Mot. at 9 n.4 & 10-12.5 In the meantime, as noted above, EPA’s practice

is not to rely on the CAIR-RACT determination as a basis for approving SIPs but,

instead, to conduct the type of area-specific analysis that the NRDC Court held

is necessary to comply with the statute’s RACT requirements. Supra at 6-7. 

Because EPA is already taking this area-specific approach for evaluating RACT

compliance when reviewing SIP submissions, even if NRDC’s request for a

deadline may properly be considered here, it should still be denied as unwarranted. 

CONCLUSION

For the foregoing reasons and those given in EPA’s initial motion, the Court 

should grant EPA’s motion and issue an order containing the relief EPA specified. 

 

5 This Court on its own motion restored this case to active status following the 

denial of rehearing petitions in EME Homer City. See Clerk’s Order dated Feb. 

22, 2013. Subsequently, EPA and other parties filed petitions for certiorari 

requesting the Supreme Court’s review of this Court’s decision in EME Homer 

City. 81 U.S.L.W. 3567 (Nos. 12-1182 & 12-1183). On June 24, 2013, the 

Supreme Court granted certiorari with respect to the questions presented by 

petition number 12-1182. EPA v. EME Homer City Generation, L.P., 2013 WL 

1283839 (U.S.), 81 U.S.L.W. 3567. 
11

Respectfully submitted,

ROBERT G. DREHER

Acting Assistant Attorney General

Environment and Natural Resources Division

DATED: July 1, 2013 /s/ Brian H. Lynk 

BRIAN H. LYNK

U.S. Department of Justice

Environmental Defense Section

P.O. Box 7611

Washington, DC 20044

(202) 514-6187

Counsel for Respondent EPA

OF COUNSEL:

SONJA L. RODMAN

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., NW

Washington, DC 20460
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CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that on July 1, 2013, I caused a true

and correct copy of the foregoing to be served by electronic transmission to each of 

the following counsel:

David Samuel Baron

Earthjustice Legal Defense Fund

1625 Massachusetts Ave., NW, Suite 702

Washington, D.C. 20036

dbaron@earthjustice.org

Counsel for Petitioner Natural Resources Defense Council

Jon C. Martin

Attorney General’s Office of the State of New Jersey

Division of Law

25 Market Street

P.O. Box 093, Richard J. Hughes Justice Complex

Trenton, NJ 08625-0093

jon.martin@dol.lps.state.nj.us

Counsel for Petitioner the State of New Jersey

Charles Howland Knauss

Shannon S. Broome

Katten Muchin Rosenman LLP

2900 K Street, NW, North Tower - Suite 200

Washington, DC 20007-5118

chuck.knauss@kattenlaw.com

shannon.broome@kattenlaw.com

Counsel for Intervenors American Fuel & Petrochemical Manufacturers and 

American Petroleum Institute
13

Norman William Fichthorn

Hunton & Williams LLP

1900 K Street, NW, Suite 1200

Washington, D.C. 20006

nfichthorn@hunton.com

clangworthy@hunton.com

awood@hunton.com

Counsel for Intervenor Utility Air Regulatory Group

Morgan Costello

Attorney General’s Office of the State of New York

The Capitol 

New York State Department of Law

Albany, NY 12224-0341

morgan.costello@ag.ny.gov

Counsel for Intervenor the State of New York

Kimberly P. Massicotte

Scott N. Koschwitz

Attorney General’s Office of the State of Connecticut

55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120

kimberly.massicotte@ct.gov

scott.koschwitz@ct.gov

Counsel for Intervenor the State of Connecticut

Dated: July 1, 2013 /s/ Brian H. Lynk 

 Brian H. Lynk