EPA adopted this approach despite express provis ions in the Act prohibiti ng the lifting of control requirements for a nonattainment area until the stat e 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, petitione r NRDC contends that EPA’s waiver of the above referenced anti-pollution requ irements flouts th e Act’s explicit commands, and that the Court should therefore vacate and remand the ch allenged portions of the phase 2 rule. SUMMARY OF ARGUMENT EPA’s rule violates the Act’ s express terms in waiving th e requirement for reasonably available control technology (RACT) at factories and power plants in pollu ted 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 re asonably available pollution controls at all simply by purchasing allo wances from sources many hundreds of miles aw ay. The Act requires RACT at existing sources “ in the [nonattainment] area,” and RA CT is “the lowest emission limitation that a particular source is capable of meetin g,” 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 betw een 2002 and 2008 merely because the area had an EPA-approved 15% emission cu t 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. Furt her, EPA itself concedes

10that 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 nona ttainment areas to claim percentage re duction credits from emission cuts occurring far outside the nonattain ment 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 th e 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 lang uage whatsoever authorizing such waivers: To the contrary, the Act explicitly provides that all nona ttainment planning and co ntrol requirements must remain in full force until an area qualifies for redesignation to “a ttainment” – a process requiring the area to show not only that it is cu rrently meeting standard s, but also that it will stay in compliance for at least ten years. EPA is completely wit hout authority to abrogate the very protections Congress put in place ensure that polluted commun ities not only meet clean air standards, but stay in compliance. STANDING Petitioner NRDC is a national nonprofit or ganization whose purposes include the protection and improvement of ai r quality and public health. See attached declaration of John Walke. NRDC has standing to bring this chal lenge 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

1181 Subpart C (2005). Exposure to such polluted ai r increases the risk of asthma attacks, lung damage, irreversible reduction in lung function, lo wer quality of life, and other injury to these members’ health and welfare. 3 The rules at issue govern impl ementation of health standard s for smog in more than 450 counties throughout the United States, includi ng 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 wi th requirements under the Act for limiting and reducing such ozone air pollution, thereby prol onging 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 member s by waiving requirements for preparation of plans to reduce ozone forming emissions and fo r consideration by states of stronger pollution control measures in communities where NRDC me mbers live. Further support for Petitioners’ standing appears in the materials cited in this brief and in the appe nded declarations. For all the foregoing reasons, NRDC ha s 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 challe nge 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 advers e effects of ozone); 62 Fed. Reg. 38856, 38875 (1997)(describing ozone-related “damage ... to vegetation and natural resources”)

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