**Memorandum to the Docket Regarding**  **the Effect of EPA v. EME** 

**Homer City Generation, L.P. , 134 S. Ct. 1,584**  **(2014) on** 

**Publication of the Final Rule**

On March 26, 2012, EPA proposed to approve the Connect icut state implementation plan (SIP) to address regional haze for the first planning period (the “Connecticut RH SIP”). 77 Fed. Reg. 17,367. Among other things, the Connecticut RH SIP proposed to satisfy the Clean Air Act’s requirement for Best Available Retro fit Technology (BART) at the State’s electric generating units by relying in part on a state regulation implementing EPA’s Clean Air Interstate Rule (CAIR) . However, t o address the United States Court of Appeals for the District of Columbia Circuit’s decis ion in North Carolina v. EPA, 550 F.3d 1,176 (D.C. Cir. 2008), which remanded CAIR to EPA, Connecticut submitted for parallel processing a proposed amendment to its state regulations that permanently would maintain the oxides of nitrogen (NOX ) emission reductions required by the existing state regulation implementing CAIR. On August 21, 2012, the D.C. Circuit issued its decision in EME Homer City Generation, L.P. v. EPA , 609 F.3d 7 (D.C. Cir. 2012), vacating EPA’ s Cross - State Air Pollution Rule (CSAPR) , which EPA had promulgated as a replacement for CAIR . The court also ordered EPA “ to continue to administer CAIR pending its development of a valid replacement.” Id. at 38.On November 19, 2012, then EPA Assistant Administrator Gina

McCarthy issued a memorandum to the regional Air Division Directors (the “McCarthy Memo”) in response to the D.C. Circuit’s decision in EME Homer City . Among other things, the McCarthy Memo advised that, in light of the court’s mandate that EPA continue administering CAIR pending a valid replacement, it would be appropriate for states to rely on CAIR emission reductions as permanent and enforceable in certain circumstances “until any further proceedings in [ EME Homer City] are resolved . . . .” Memo at 2. Moreover, the McCarthy Memo advised that it would be appropriate for Region 1 to approve the Connecticut RH SIP based on the aforementioned rationale. Id. On November 23, 2012, the Connecticut Department of Environmental Protection submitted a l etter to EPA withdrawing the state’s parallel processing request of the proposed replacement regulation for CAIR and requesting approval of its original SIP submission . On January 24, 2013, EPA issued a notice of supplemental proposed rulemaking that acknowledged receipt of the withdrawal letter. 78 Fed. Reg. 5,158. In accordance with the reasoning in the McCarthy Memo regarding the import of the D.C. Circuit’s decision in EME Homer City, EPA proposed to approve the Connecticut RH SIP as originally submitte d . EPA found that thestate could rely on its existing state regulation implementing

CAIR because the associated reductions in NOX would be “permanent and enforceable for the foreseeable future.” Id. at 5,160. On April 26, 2013, then EPA Region 1 Deputy Regional Administrator Ira Leighton, acting for Regional Administrator H. Curtis Spalding, signed and promulgated a final rule approving the Connecticut RH SIP as proposed . EPA Region 1 distributed copies of the final rule to Connecticut and a group of

environmental litigants. Due to issues not relevant here, the Office of the Federal Register (OFR) has not published the final rule as of June 4 , 2014 . On April 29, 2014, the United States Supreme Court issued its decision in EPA v. EME Homer City Generation , L.P. , 134 S. Ct. 1,584 (2014) , reversing the D.C. Circuit’s decision vacating CSAPR and remanding the case for further proceedings . As of this time, however, CSAPR remains stayed and CAIR remains in effect. On May 27, 2014, consistent with OFR regulations governing final rules that remain unpublished for more than one year after original signature and promulgation, EPA Region 1 Regional Administrator H. Curtis Spalding reaffirmed the signature of former Deputy Regional Administrator Ira Leighton.

EPA do es not believe that the Supreme Court’s decision in EME Homer City impacts the forthcoming publication of EPA’sfinal rule approving the Connecticut RH SIP. At the time EPA

signed and promulgated the final rule , the D.C. Circuit’s decision directing EPA to continue administering CAIR pending a valid replacement remained good law. Moreover, as explained in the McCarthy Memo, EPA believed at that time that states could rely on emission reductions associated with CAIR “until any further proceedings in [ EME Homer City] are resolved . . . .” Memo at 2. Because the Supreme Court had not yet issued its decision in EME Homer City at the time that EPA signed and promulgated the final rule, EPA properly concluded that reductions associated with CAIR remained permanent and enforceable at that time. Although publication of the final rule in the Federal Register has been delayed, EPA signed, promulgated, and distributed the final rule on April 26, 2013 when the D.C. Circuit’s decision in EME Homer City was the operative l aw.