In October 2014, U.S. EPA released and published the MOVES2014 Motor Vehicle Emissions Model, an emissions model that states must use to craft future State Implementation Plans ("SIPs") and, starting in October 2016, to demonstrate that their transportation projects conform to their SIPs. See 79 Fed. Reg. 60343 (Oct. 7, 2014). In December 2014, the states of Kansas and Nebraska, and two environmental organizations, petitioned the United States Court of Appeals for the District of Columbia to strike down the model on procedural and substantive grounds. State of Kansas et al. v. Environmental Protection Agency et al., No. 14-1268.
Petitioners argued that EPA's promulgation of the model was procedurally flawed and violated the Administrative Procedures Act ("APA") because EPA implemented the model without providing the public notice or an opportunity for interested parties to comment. On the merits, petitioners alleged that the model was unsound because it was based, in part, on a significantly flawed fuel effects study. According to petitioners, the study's conclusions regarding increased emissions generated by ethanol use were spurious because, among other things, the study's test fuels contained more toxic components than actual market fuels.
EPA's response focused on the deficiencies in the states' and organizations' efforts to establish standing. EPA argued that the neither the organizations nor the states had demonstrated standing because none of their standing theories established that the model will cause them a concrete and imminent injury. According to EPA, the two states had no current or imminent legally binding obligation to use the model, and that any future obligation, air-quality harm, or negative economic impact was speculative. EPA also argued that the D.C. Circuit lacked jurisdiction to review the model because release of the model did not constitute final agency action and that, in any event, the notice-and-comment requirements did not apply to the model because it was a "nonbinding technical tool."
On October 14, 2015, petitioners filed their reply brief. Petitioners addressed EPA's arguments regarding standing, arguing that, on October 1, 2015, EPA finalized new ozone National Ambient Air Quality Standards that would require the states to use the model in their SIPs. Petitioners also took issue with EPA's characterization of the model as "non-binding policy," noting that the official release for the model contained language indicating that states' use of the model was mandatory.
Oral argument has not yet been scheduled in the matter.
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