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 Connecticut

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 

Retrofit 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, to address the 

United States Court of Appeals for the District of Columbia 

Circuit’s decision 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 letter 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 submitted. EPA found that the 
state 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 does not believe that the Supreme Court’s decision in 

EME Homer City impacts the forthcoming publication of EPA’s 
final 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 law.