**IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA**  SIERRA CLUB,

Plaintiff, vs. LISA JACKSON, ADMINI STRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:11 - CV - 00100 - JDB

**[PROPOSED] BCCA APPEAL GROUP’S MOTION TO DISMISS AND MEMORANDUM OF LAW IN SUPPORT THEREOF**  Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), BCCA Appeal Group (“BCCAAG”), b y and through counsel, hereb y moves this Court to dismiss the claims asserted by Sierra Club in this action because (i) Sierra Club has failed to establish constitutional standing; (ii) the Court does not have jurisdiction to grant the requested relief; and (iii) Sierra Club has failed to state a claim upon which relief can be granted. This Motion is based on the below memorandum of law, and any other authorities that the Court may consider. **MEMORANDUM OF LAW IN SUPPORT OF MOTION**

**INTRODUCTION** This action is nothing more than an attempt by S ierra Club to substitute its policy preferences and objectives for those of Congress and the Environmental Protection Agency (“EPA”). N ot onl y is such an attempt improper, but Sierra Club has already challenged the regulations at issue in this case, and the D.C. Circuit has already rejected that challenge. It is for good reason that parties are precluded from re - litigating issues and claims time and time again: re litigation wastes judicial resources and promotes inconsistent judgments. B ec ause the positions2

taken by S ierra Club in this action have already been considered and rejected, and more importantly, because this Court lacks jurisdiction to consider Sierra Club’s claims, the Court should dismiss the action in full. This case involv es essentially one claim: Sierra Club asserts that EPA, pursuant to the Clean Air Act (“CAA”), must make statutory determinations whether various air quality c ontrol regions, including the Houston - Galveston- Brazoria (“HGB”) area, attained EPA’s now revoked 1 -hour national ambient air quality s tandard for ozone (the “1 -hour ozone standard”) as of the applicable attainment date, and that EPA has failed to compl y with that obligation. S ierra Club also contends that if EPA finds that a severe nonattainment are a under the 1 -hour ozone standard, such as HGB, “‘failed to attain the [1 -hour ozone standard] by the applicable attainment date,’ all major sources of volatile organic compounds (‘VOCs’)” and oxides of nitrogen “‘are required to pay a f ee to the State . . . until the area is redesignated as an attainment area for ozone.’” C ompl. ¶ 39 (quoting and citing Clean Air Act (“CAA”) Section 185, 42 U.S.C. § 7511d(a)). Sierra Club seeks declaratory

and injunctive relief that require EPA to determine whether the areas identified in the Complaint met the 1 -hour ozone standard as of their attainment date. H owever, the relief requested cannot be awarded for several reasons. First, Sierra Club has failed to establish standing under Article III. B ecause Sierra Club alleges that it has associational standing, it must identify at least one member who would have standing in his own right to bring this action. The D.C. Circuit recently reaffirmed that an association fails to meet its burden when it simply avers that “s ome” member “somewhere” has suffered an injury

—the association must identify a specificmember. S ierra Club has plainly failed to do so. Further, even assuming that Sierra Club had identified a member, the Complaint3

includes no allegations showing that EPA’s alleged inaction has caused anyone an injury or that forcing EPA to act would redress any injury . Second, in seeking to require EPA to appl y the 1 -hour ozone standard, Sierra Club is essentially

challenging EPA’s decision in 2004 to revoke the 1 -hour ozone standard and replace it with an 8 -hour ozone standard. When EPA revoked the 1 -hour standard, it expressly r uled that it no longer had an obligation to make the findings sought by S ierra Club: “Upon revocation of the 1 -hour [ozone standard] for an area, EPA is no longer obligated

–(A) [t]o determine pursuant to section 181(b)(2) or section 179(c) of the CAA whether an area attained the 1 -hour [ozone standard] by

that area's attainment date for the 1 -hour [ozone standard].” 4 0 C.F.R. § 51.905(e)(2)(i ); 69 Fed. Reg. 23,857, 24,000 (Apr. 30, 2004). In seeking to require EPA to make the findings that it requests, Sierra Club is asking this Court to undo aspects of rules set forth in 2004. H owever, under the CAA, if a party w ants to challenge a regulati on promulgated by EPA, the party “shall” petition for review in the D.C. Circuit no later than 60 daysf rom the date that notice of such action appears in the Federal Register. Therefore, this action has not only been filed in the wrong court, but it is also untimely by more than six years. Third, even if Sierra Club could challenge the regulations at issue, they have already done so and their challenge was rejected. South Coast Air Quality Mgmt. Dist. v. EPA , 472 F.3d 882 (D.C. Cir. 2006), modified on reh’g, 489 F.3d 1245 (D.C. Cir. 2007) . In South Coast, the court upheld both the revocation of the 1 -hour ozone standard and EPA’s elimination of its obligation to determine whether areas attained the 1 -hour standard by their attainment date. Accordingl y, Sierra Club’s requested relief

—forcing EPA to make its requested findings under the 1 -hour ozone standard

—is barred by

the regulations themselves and by the D.C. Circuit’s decision upholding the regulations.4

Finally, Sierra Club’s lawsuit amounts to an e ffort to by pass, under cover of an order from this Court, the administrative procedures that must be followed under the CAA. S ierra Club has not sought, and apparently does not intend to seek, recourse through proper administrative channels. This Court should not allow Sierra Club through this lawsuit to avoid the administrative procedures that Congress saw fit to prescribe. For these reasons, the Court should dismiss the case for lack of jurisdiction and for failure to state a claim upon which relief c an be granted. **BACKGROUND** The CAA requires EPA to set a national ambient air quality s tandard (“NAAQS”) for ozone, which is a standard for the concentration of ozone in the air that the states seek to achieve. In1 979, EPA, using 1 -hour average concentration as the measure, set the standard at 0.12 parts per million (“ppm”) (the “1 -hour ozone standard”). See 44 Fed. Reg. 8202 (Feb. 8, 1979). In 1990, Congress amended the CAA to require EPA and the states to develop attainment plans for areas not in co mpliance with that standard. An attainment plan, or state implementation plan (“SIP”), includes the methods by which the state will work to attain the applicable ozone standard by

its attainment date. EPA was also required to classify n onattainment areasa s marginal, moderate, serious, severe, or extreme, depending on an area’s deviation from the 1 -hour ozone standard. The HGB area was classified as a “severe” nonattainment area and assigned an attainment date of November 15, 2007. See42 U.S.C. § 7511( a)(1)

–(2); 40 C.F.R. § 81.344. In addition, the 1990 amendments added a new Section 185 to the CAA to impose penalty fees in “severe” and “extreme” areas that failed to attain the 1 -hour ozone standard by their attainment dates. I f applicable, Section 185 requires states, as part of their SIPs, to pass legislation or develop administrative rules to collect the penalty f ees from major stationary sources in the nonattainment area. 42 U.S.C. § 7511d(a).5

In1 997, EPA adopted a more stringent standard for ozone—the 8 -hour ozone standard, which is met when the 8 - hour average concentration of ozone in a given area is 0.08 ppm or less. See 40 C.F.R. § 50.10; 62 Fed. Reg. 38,894 (July 1 8, 1997). In 2004, to manage the transition from the 1 -hour ozone standard to the 8 -hour ozone standard, EPA promulgated the Phase Iozone implementation rule. The Phase I rule revoked the 1 -hour ozone standard and eliminated EPA’s obligation to determine whether an area “attained” the 1 -hour standard by its attainment date. See 40 C.F.R. § 50, 51, 81 ( as effective June 15, 2004); 69 Fed. Reg. 23,857 (Apr. 30, 2004); 40 C.F.R. § 51.905(e)(2)(i)(A) (“Upon revocation of the 1 -hour [standard] for an area, EPA is no longer obligated . . . [t]o determinate pursuant to section 181(b)(2) or section 179(c) of the CAA whether an area attained the 1 -hour [standard] by that area’s attainment date for the 1 -hour [standard].”). Several parties, including the Sierra Club, challenged the validity o f the Phase I rule on various grounds in the South Coast litigation. The D.C. Circuit upheld nearl y all aspects of the Phase I rule, and specifically u pheld EPA’s revocation of the 1 -hour ozone standard. The court explained that: EPA retains the authority to revoke the one -hour standard so longas

adequate anti -backsliding provisions are introduced. Additionally, EPA was not, as the Environmental petitioners contend, arbitrary and capricious in withdrawing the one- hour requirements , having found in 1997 that the eight-hour standard was “general ly even more effective in limiting 1 -hour exposures of concern than is the current 1 -hour standard.” [ 62 Fed. Reg. at 38,863] The only remaining requirements as to the one- hour NAAQS are the antibacksliding limitations .6

472 F.3d at 899 (emphasis added) . Further, the court, by not expressly

rejecting EPA’s elimination of its obligation to make attainment findings under the 1 -hour standard as of an area’s attainment date, upheld that portion of the Phase I rule. 1 Although the 1 -hour ozone standard wa s validly revoked and replaced with the 8 -hour standard, the D.C. Circuit and EPA interpreted Section 172(e) to require EPA to promulgate “anti -backsliding” measures that are “not less stringent than the controls” that would have been “applicable” if the 1 -hour ozone standard had remained in place. See CAA § 172(e), 42 U.S.C. § 7502(e); South Coast, 472 F.3d at 900. That is, Section 172(e) does not require Section 185 fees, onl y an anti -backsliding measure that is “not less stringent” than a Section 185 f ee program. And EPA in fact has begun to promulgate anti -backsliding measures for areas that failed to attain the 1 -hour ozone standard, consistent with CAA Section 172(e) and the South Coast decision, without the imposition of Section 185 fees. F or ex ample, two “severe” nonattainment areas recentl y sought Termination Determinations (the Baton Rouge, Louisiana and Sacramento, California areas), and in 2011, EPA proposed administrative rules that would establish Section 185 “Termination Determinations” f or those two areas. I f finalized, these Termination Determinations would include a finding by EPA that the areas in question have currentlyattained the revoked 1 -hour ozone standard due to permanent and enforceable emission reductions and encompass a legal determination that the areas in question are no longer subject to an anti backsliding requirement associated with Section 185 fees. See7 6 Fed. Reg. 28,696 (May 1 8, 2011) (Sacramento Metro Area); 76 Fed. Reg. 17,368 (Mar. 29, 2011) (Baton Rouge). N ota bl y, 1 The onl y provisions of the Phase I rule that the D.C. Circuit vacated were those that addressed the following requirements: N ew Source Review, or “NSR”( codified at 40 C.F.R. § 51.905(e)(4)(i)); Section 185 fees (codified at 40 C.F.R. § 51.905(e)(2)(ii)); Contingency p lans (codified at 40 C.F.R. § 51.905(e)(2)(iii)); and Motor Vehicle Emission Budgets (codified at 40 C.F.R. § 51.905(e)(3)). 4 72 F.3d at 900

–05; 489 F.3d at 1248 (confirming that the Phase I rule was “vacated onl y to the extent that the court has sustained challenges to it”).7

EPA proposed no findings as to these areas’ status with respect to the revoked 1 -hour ozone standard as of their attainment dates , which have passed. See 40 C.F.R. § 81.305 (recognizing Sacramento as a “severe - 15” 1 -hour ozone nonattainment area (an area with a November 15, 2005 attainment date; see 42 U.S.C. § 7511(a)(1) & tbl. 1)) 68 Fed. Reg. 20,077 (Apr. 24, 2003) (establishing November 15, 2005 as Baton Rouge’s 1 -hour ozone attainment date). In addition, a guidance memorandum issued by EPA on January

5 , 2010 points out that “[O]nce an area attains the 1997 8 -hour ozone standard, which replaced the now revoked 1 -hour standard, the purpose of retaining the section 185 fee program as an anti -backsliding measure would also be fulfilled as the area would have attained the 8 -hour standard for which the fee program was retained as a transition measure.” M emorandum from Stephen D. Page, Director, Office of Air Quality

P lanning and Standards; regarding Guidance on Developing Fee Programs Required by

Cle an Air Act Section 185 for the 1 - Hour Ozone NAAQS (Jan. 5, 2010), at 3. 2This guidance memorandum also explained that, because the 8 -hour ozone standard is more stringent than the 1 -hour ozone standard, a Termination Determination may also be available for an area if that area has attained the 8 -hour ozone standard. See id. In the case of HGB, although currentl y designated as a “severe” nonattainment area for the 8 -hour ozone standard, see 40 C.F.R. § 81.344, available monitoring data indicate that the H GB area attained

the 8 -hour ozone NAAQS as of the 2007

–2009 measurement period. SeeFinding of Failure to Submit Certain State Implementation Plans Required for the 1 - Hour Ozone NAAQS, 75 Fed. Reg. 232 (Jan. 5, 2010) (noting that current air quality data indicate that the HGB area has attained the 1997 8 -hour standard). A ccordingl y, the State of Texas has submitted a request to EPA for a Termination Determination based on HGB’s attainment of the 8 - hour ozone standard to

2A judicial challenge to this guidance document is currentl y pending before the D.C. Circuit. See NRDC v. EPA , No. 10 - 1056 (D.C. Cir.).8

satisfy the anti -backsliding requirements of Section 172(e) with respect to Section 185 fees. Once the Termination Determination is finalized by EPA in fulfillment of Section 172(e), HGB would no longer face any risk of Section 185 fees under the 1 -hour ozone standard. 3 **ARGUMENT** The Court should dismiss this action for two separate and independent reasons. F irst, the Court lacks jurisdiction to entertain Sierra Club’s claims. Second, Sierra Club has failed to state a claim upon which relief can be granted. **I. THE**  **COURT LACKS**  **JURI SDICTION**  **B ECAUSE**  **SIERRA CLUB**  **L ACKS**  **STANDING. A.**  **Sierra Club Has Not Identified A Member With Article III Standing.** Given that Sierra Club does not allege that it, as a corporate entity, has suffered an injury, it is presumably

rel ying on its status as an association to establish standing under Article III. T o adequatel y allege associational standing, an association must allege, in part, that its members would have standing in their own right. Hunt v. Washington State Apple Adver. Comm’n , 432 U.S. 333, 343 (1977) . Thus, the association must allege as to its members: (i) an injury- in- fact, (ii) causation, and (iii) redressibility . Fund for Animals, Inc. v. Norton , 322 F.3d 728, 732

–33 (D.C. Cir. 2003). However, as the U.S. Court of Appeals for the D.C. Circuitrecently explained, “When a petitioner claims associational standing, it is not enough to aver that unidentified members have been injured. Rather, the petitioner must specifically identify members who have suffered the requisite harm. ” Chamber of Commerce of the United States of Amer. v. EPA , No. 09 - 1237, 2011 WL 1601753, at *4 (D.C. Cir. Apr. 29, 2011) (emphasis added; citation omitted) (holding that 3 The Texas Commission on Environmental Quality ( “TCEQ”) estimated in 2009, in connection with a proposed rule to implement Section 185 fees, that the annual cost for HGB major sources “could be between $73,134,000 and $124,269,292.” 3 4 Tex. Reg. 8644, 8651 (Dec. 4, 2009). The proposed rule was not finalized.9

“[b]ecause the Chamber has not identified a single member who was or would be injured by EPA’s waiver decision [the regulatory action at issue], it lacks standing to raise this challenge”). Here, Sierra Club has plainly f ailed to identify

as ingle member who is allegedl y injured by the absence of the findings sought by S ierra Club. Rather, Sierra Club rel ies on the generalized assertion that it “has over 750,000 members nationall y,” including “[m]embers and staff [who] live, work, recreate, and travel throughout the areas at issue in this case.” Compl. ¶ 9. But if the general membership characteristics o f the U.S. Chamber of Commerce are inadequate to establish standing without identification of a specific member, see Chamber of Commerce , 2011 WL1 601753, at *4, then so are the general membership characteristics of Sierra Club. Accordingl y, this action must be dismissed for lack of jurisdiction. **B. Sierra**  **Club Has**  **Not Alleged**  **An Injury** **- in**  **- Fact,**  **Causation, Or**  **Redressability.** Even if Sierra Club were to identify one or more members who “live, work, recreate, and travel throughout the areas at issue in this case,” Compl. ¶ 9, Sierra Club has still failed to establish Article III standing because it has not identified an injury- in- fact suffered by its members that was caused by EPA’s inaction that would be redressed by S ierra Club’s requested relief. See, e.g. , Chamber of Commerce , 2011 WL 1601753, at *5 Most significantly, although Sierra Club alleges injuries based on exposure to ozone, Compl. ¶ 9, the complaint does not establish a link between Sierra Club’s requested relief and a decrease in ozone levels. Thus, Sierra Club has not shown that an alleged injury from exposure to ozone could be redressed by EPA findings on the level of ozone in certain areas as of their attainment dates (all of which, notably, are in the past). To the extent Sierra Club alleges that the requested EPA statutory determinations would provide “procedural protection and opportunities,” id. ¶ 10, Sierra Club has identified no reason10

to infer that EPA’s current approach to implementing anti -backsliding measures, rather than the requested determinations, would constitute an injury- in - fact to Sierra Club’s members. Similarly, to the extent that Sierra Club alleges that the requested EPA determinations would reduce “uncertainty f or Sierra Club’s staff and members as to whether they are exposed to excess air pollution,” id. ¶ 10, the Court should disregard such an alleged “injury” because it would not be remedied by the findings that Sierra Club seeks. EPA has long provided air quality data from its Air Quality S ys tem database on its website. See EPA, AirData , http://www.epa.gov/air/data/index.html (last accessed June 5, 2011) (providing air quality monitoring data from EPA’s Air Quality S ys tem and National Emission Inventory databases). This is the same information that EPA us es to make attainment status findings. See, e.g. , 74 Fed. Reg. 63,993, 63,994 (Dec. 7, 2009) (determining that various ozone nonattainment areas in New York and New Jersey

had attained the 1 -hour and 8 -hour ozone standards, and noting that “[t]hese determinations are based upon certified ambient air monitoring data . . . . All these data are available in the EPA Air Quality S ys tem (AQS) database.”). The formula for calculating an area’s attainment of the 1 -hour standard, based on the information on EPA’swebsite, is a simple arithmetic exercise, based on calculations explained in EPA’s regulations. See 40 C.F.R. § 50.9 (defining the 1 -hour ozone standard), App. H (explaining how to calculate attainment of the 1 - hour ozone standard). Thus, there is no “uncertainty” to be remedied by an EPA finding on ozone levels. **II. THE COURT LACKS JURI**  **SDICTION BECAUSE THI S ACTION IS UNTIMELY**  **.** The jurisdiction of courts to consider challenges to EPA regulations is strictly l imited. A party has onl y 60 days after receivingnotice of the regulation to petition for review. B ecause Sierra Club is effectively challenging regulations that were promulgated in 2004, this action is untimely and the Court lacks jurisdiction to consider it.11

As explained above, the EPA regulations at issue were promulgated and published in the Federal Register in 2004. See69 Fed. Reg. at 24,000 (Apr. 30, 2004). These regulations provide in pertinent part that “[u]pon revocation of the 1 -hour [ozone standard] for an area, EPA is no longer obligate d

—(A) [t]o determine pursuant to section 181(b)(2) or section 179(c) of the CAA whether an area attained the 1 -hour [ozone standard] by that area’s attainment date for the 1 -hour [ozone standard].” 40 C.F.R. § 51.905(e)(2)(i). The CAA provides that: A petition for review of . . . nationally a pplicable regulations promulgated, or final action taken, by the [EPA] Administrator under this chapter [the Clean Air Act] may b e filed only

in the United States Court of Appeals for the District of Columbia. . . . Any p etition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register. CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1). Further, the CAA prohibits the use o f a citizen suit as a means of collaterally obtaining judicial review of validly promulgated EPA regulations: “Nothing in this chapter [the CAA] shall be construed to authorize judicial review of regulations or orders of the [EPA] Administrator under this chapter, except as provided in this section.” 4 2 U.S.C. § 7607(e). A s a sister court in this district has noted, “It is well - settled that subsection 307(b)(1) of the CAA provides the exclusive means of obtaining review of final actions by EPA under the C AA.” Royster- Clark Agribusiness, Inc. v. Johnson , 391 F. Supp. 2d 21, 26 (D.D.C. 2005) (where plant owner sought relief against EPA for issuing a “notice of violation,” holding that the district court lacked jurisdiction but that the notice also was not a f inal action subject to review under section 307(b)(1)); see also Hagedorn v. Union Carbide , 363 F. Supp. 1061, 1067 (N.D. W.Va. 1973) (explaining that the language now codified in CAA section 307(b)(2) “evidences a clear12

congressional intent that matterswhich can be raised in a review proceeding in the Courts of Appeals shall not be litigated elsewhere.”). Thus, section 307(b)(1) provides Sierra Club with its exclusive remedy

to challenge EPA regulations, as illustrated in Maine v. Thomas , 874 F.2d 883 (1st Cir. 1989). There, states and environmental groups brought a CAA citizen suit against EPA in 1986, alleging that EPA had failed to perform a nondiscretionary duty in regulating visibility in federal parks and wilderness areas. Id. at 885

– 86. However, EPA had promulgated visibility regulations in 1980. Id. The First Circuit therefore correctly held that it lacked jurisdiction over the action. Id. at 887

– 89; accord Nat’l Petrochemical & Refiners Ass’n v. EPA , 287 F.3d 1130, 1150 (D.C. Cir. 2002). The same analysis applies here. The current challenge should have been brought in the D.C. Circuit in 2004, sixty days after EPA took final action to promulgate the regulations at issue. As a result, this Court lacks jurisdiction. **III. THE D.C. CIRCUIT UPH** **ELD THE EPA REGULATIONS** **AT ISSUE.** Even if Sierra Club’s action was timely, the exact same challenge to the regulations at issue had already been made and rejected. In South Coast, the D.C. Circuit upheld nearly all aspects of the Phase I rule, and specifically u pheld EPA’s authority

to revoke the 1 -hour ozone standard: EPA retains the authority to revoke the one -hour standard so long as

adequate anti -backsliding provisions are introduced. Additionally, EPA was not, as the Environmental petitioners contend, arbitrary and capricious in withdrawing the one -hour requirements, having found in 1997 that the eight-hour standard was “generall y even more effective in limiting 1 -hour exposures of concern than is the current 1 -hour standard.” [ 62 Fed. Reg. at 38,863] The only remaining requirements as to the one -hour NAAQS are the anti backsliding limitations.13

South Coast, 472 F.3d at 899. The only a spects of the Phase I rule vacated were those which rendered Section 185 penalty f ees (and other specific control measures, described as New Source Review, Rate - of

- Progress Milestones, Contingency P lans, and Motor Vehicle Emission Budgets) inapplicable. Id. at 900

–05. 4The court specifically noted that the Phase I rule was “vacated only to the extent that the court has sustained challenges to it.” 4 89 F.3d at 1248. N either of the D.C. Circuit’s South Coast

opinions provide that the portion of the Phase I rule at issue here (that is, section 51.905(e)(2)(i)(A), which eliminates EPA’s obligations to make the findings sought by Sierra Club in this lawsuit) was vacated. T o the contrary, this aspect of the Phase I rule was necessarily

upheld by

the D.C. Circuit. Subsequent EPA actions also confirm that South Coast u pheld the relevant provision of EPA’s Phase I rule. In fact, EPA has proposed to revise the Phase I rule to implement aspects of the South Coast

decision with respect to Section 185 fees by removing certain components of the Phase I rule that refer to Section 185 fees, but expressly retaining the provision at is sue in this case. See7 4 Fed. Reg. 2936 (Jan. 16, 2009) (proposing to delete 40 C.F.R. § 51.905(e)(2)(ii) (which discusses Section 185 fees) but to retain section 51.905(e)(2)(i)(A) (the provision at issue here)). Further, EPA has proven its ability to enforce Section 185 without making the findings sought by

S ierra Club. EPA recentl y initiated a process to require the state of California to submit Section 185 fee SIP revisions for several areas or face federal sanctions, but EPA did so without making any statutory f inding as to whether the areas in question had attained the 1 -hour ozone NAAQS. See75 Fed. Reg. 232 (Jan. 5, 2010).

4That is, the court held that these programs were “controls” under CAA Section 172(e). This holding does not prevent these programs from being replaced by e quivalent, not lesss tringent programs.14

**IV. SIERRA**  **CLUB IS**  **PRECL UDED**  **FROM RELITIGATI** **NG THE**  **VALIDITY OF**  **THE PHASE I REGULATI ONS.**  Sierra Club’s claims must also be dismi ssed because Sierra Club previously brought a nearl y identical challenge to the regulations at issue. A s explained above, the D.C. Circuit, in a case in which the Sierra Club was a party and had a full and fair opportunity to participate, upheld the provi sions of the Phase I rule at issue here. Therefore, under either the rubric of claim preclusion or issue preclusion, Sierra Club is estopped from bringing this action. S ee Nader v. McAuliffe , 593 F. Supp. 2d. 95, 99

– 100 (D.D.C. 2009) (“claim preclusion forecloses all that which might have been litigated previously, while issue preclusion prevents the relitigation of any issue that was raised and decided in a prior action.”); accord Wilson v. Fullwood, Civ. Action No. 09 - 2365 (CKK), 2011 WL 1113361, at *13

– 15 (D.D.C. Mar. 28, 2011) (applying both issue and claim preclusion). **V. SIERRA**  **CLUB SEEKS**  **TO I** **MPOSE A**  **NEW REGULA** **TORY SCHEME**  **WITHOUT FOLLOWING NE CESSARY ADMINISTRATI** **VE PROCEDURES.** Sierra Club’s claims should be dismissed for failure to state a claim upon which relief can be granted because no set of facts would entitle Sierra Club to relief that contravenes necessary administrative procedures. A s explained in BCCAAG’s Motion to Intervene, Sierra Club’s lawsuit amounts to an end-run around applicable adminis trative procedures because it seeks to force EPA to take action where EPA's validly p romulgated regulations provide that EPA is not required to take such actions. Sierra Club has a remedy i f it perceives deficiencies in the EPA regulations at issue, but that remedy

is not a CAA citizen suit. Sierra Club remains free to petition EPA to reconsider any aspect of the Phase I rule or to propose and promulgate new regulations that might accomplish Sierra Club’s objectives. See Maine , 874 F.2d at 889 (noting that, although a CAA citizen suit was unavailable to challenge as insufficient final EPA regulations, the citizen-plaintiffs had as a15

remedy the option to petition EPA for administrative action, and then to seek any necessary judicial review of such actionbefore the D.C. Circuit under CAA section 307(b)(1)). In this lawsuit, Sierra Club seeks an order from this Court that would contravene EPA’s regulations without use of Sierra Club’s administrative remedy . Such relief would contravene not only v alidl y-promulgated regulations, but also applicable administrative procedures. Administrative procedures for EPA rulemaking under the CAA are established in the CAA itself and the Administrative Procedure Act. B oth require notice and an opportunity f or public comment for rulemaking, with only narrow exceptions. See 42 U.S.C. § 7607(d); 5 U.S.C. § 553. Here, Sierra Club seeks a judicial order to compel EPA to take final administrative actions (determine whether areas attained the 1 -hour ozone NAAQS) even where EPA is not required to do so. In effect, the relief sought by S ierra Club would overturn the very EPA rules that Sierra Club unsuccessfull y challenged before the D.C. Circuit. Thus, the means chosen by the Sierra Club to accomplish its objectives would vi olate applicable administrative procedures, and the Court should dismiss Sierra Club's claims for this reason. **CONCLUSION** For the reasons above, BCCAAG’s motion to dismiss Sierra Club's claims should be granted.16

Dated: June 8, 2011 Respectfully submitted, /s/ Richard P. Sobiecki Richard P. Sobiecki (D.C. Bar # 500163) Baker Botts L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 639 - 7906 rich.sobiecki@bakerbotts.com Zachary L . Craft Baker Botts L.L.P. One Shell Plaza 910 Louisiana Houston, Texas 77002 (713) 229 - 1133 zachary .craft@bakerbotts.com Attorneys for BCCA Appeal Group