EPA adopted this approach despite express provisions in the Act prohibiting the lifting of control 

requirements for a nonattainment area until the state demonstrates that the area has attained the 

standard due to permanent emission reductions and will remain in attainment for at least ten 

years. CAA §§ 107(d)(3)(E), 175A, 42 U.S.C. §§7407(d)(3)(E), 7505a. 

 For reasons further set forth below, petitioner NRDC contends that EPA’s waiver of the 

above referenced anti-pollution requirements flouts the Act’s explicit commands, and that the Court 

should therefore vacate and remand the challenged portions of the phase 2 rule. 

SUMMARY OF ARGUMENT 

 EPA’s rule violates the Act’s express terms in waiving the requirement for reasonably 

available control technology (RACT) at factories and power plants in polluted communities. The 

Act unambiguously mandates RACT “at a minimum” to combat violations of ozone standards, 

leaving EPA no authority to invent exceptions. Likewise, EPA cannot deem the RACT requirement 

to be met solely by virtue of a source’s participation in EPA’s interstate nitrogen oxide trading 

program – a program that allows a source to go without any reasonably available pollution controls 

at all simply by purchasing allowances from sources many hundreds of miles away. The Act 

requires RACT at existing sources “in the [nonattainment] area,” and RACT is “the lowest emission 

limitation that a particular source is capable of meeting,” foreclosing reliance on controls at other 

sources far outside of the nonattainment area. 

 EPA’s phase 2 rule further violates the Act by allowing an 8-hour nonattainment area to 

evade the requirement for a 15% emission cut between 2002 and 2008 merely because the area had 

an EPA-approved 15% emission cut plan for the 1990-96 period under the 1-hour standard. The 

Act requires the 15% emission cut to be achieved “from baseline emissions,” and EPA itself has 

defined the “baseline” for the 8-hour standard to be 2002, not 1990. Further, EPA itself concedes 

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that emissions reductions achieved ten years before an area was even identified as violating the 8-

hour standard cannot rationally count as “progress” toward correcting those violations. EPA’s rule 

also illegally allows nonattainment areas to claim percentage reduction credits from emission cuts 

occurring far outside the nonattainment area. The Act requires each nonattainment area to achieve 

the specified percentage emission cuts “from baseline emissions,” which the Act defines as 

emissions “in the area” – not emissions hundreds of kilometers away. Shortly after Congress 

enacted the mandate for percentage emission cuts, EPA itself read the statute as requiring that the 

cuts “come from within the designated nonattainment area.” 

 Finally, EPA’s rule unlawfully waives the Act’s mandates for submission of percentage 

reduction plans and contingency measures whenever an ozone nonattainment area is temporarily 

meeting standards. The statute contains no language whatsoever authorizing such waivers: To the 

contrary, the Act explicitly provides that all nonattainment planning and control requirements must 

remain in full force until an area qualifies for redesignation to “attainment” – a process requiring the 

area to show not only that it is currently meeting standards, but also that it will stay in compliance 

for at least ten years. EPA is completely without authority to abrogate the very protections 

Congress put in place ensure that polluted communities not only meet clean air standards, but 

stay in compliance. 

 STANDING

Petitioner NRDC is a national nonprofit organization whose purposes include the 

protection and improvement of air quality and public health. See attached declaration of John 

Walke. NRDC has standing to bring this challenge on behalf of its many members, who breathe 

air where they live and work that fails to meet minimum federal health protection standards for 

ozone pollution, specifically the 8-hour ozone NAAQS. Attached declarations; 40 C.F.R. Part 

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81 Subpart C (2005). Exposure to such polluted air increases the risk of asthma attacks, lung 

damage, irreversible reduction in lung function, lower quality of life, and other injury to these 

members’ health and welfare.3 

The rules at issue govern implementation of health standards for smog in more than 450 

counties throughout the United States, including many communities where NRDC’s members 

live, work, and recreate. See 69 Fed. Reg. 23876-951; Attached declarations. The challenged 

rules waive, weaken and delay compliance with requirements under the Act for limiting and 

reducing such ozone air pollution, thereby prolonging and exacerbating adverse health and 

welfare threats to NRDC’s members from ozone pollution. The challenged rules further impair 

the procedural rights of NRDC and its members by waiving requirements for preparation of 

plans to reduce ozone forming emissions and for consideration by states of stronger pollution 

control measures in communities where NRDC members live. Further support for Petitioners’ 

standing appears in the materials cited in this brief and in the appended declarations. 

For all the foregoing reasons, NRDC has standing to bring this action. See, e.g., National 

Parks Conservation Assn v. Manson, 414 F.3d 1 (D.C. Cir. 2005)(conservation groups with 

members in affected area have standing to challenge federal action that alters legal regime to 

which state action is subject under Clean Air Act); Sierra Club v. EPA, 129 F.3d 137, 139 (D.C. 

Cir. 1997)(environmental group with members in nonattainment areas has standing to challenge 

EPA suspension of Clean Air Act review requirements in such areas). 

 

3

 68 Fed. Reg. 32802, 32804 (2003)(describing adverse effects of ozone); 62 Fed. Reg. 38856, 

38875 (1997)(describing ozone-related “damage ... to vegetation and natural resources”) 

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