Cincinnati Air Not Clean Enough, 6th Cir. Finds

     CINCINNATI (CN) – The Sixth Circuit dumped an EPA ruling on air-quality standards after the Sierra Club proved Ohio and Indiana failed to use “reasonably available control measures” to comply with the Clean Air Act.
     The Cincinnati-Hamilton metropolitan area – which includes portions of Kentucky, Ohio and Indiana – had been granted “attainment” status in 2011 following an EPA study of its air quality.
     The Sierra Club filed a petition with the Sixth Circuit, however, and claimed that “improvements in the area’s air quality were not ‘permanent and enforcement reductions in emissions'” and that “the existing nonattainment state implementation plans (SIPs) had never implemented ‘reasonably available control measures’ (RACM/RACT) rules.”
     The EPA claimed the Sierra Club lacked standing to bring its petition to the court, but Circuit Judge Julia Smith Gibbons disagreed.
     “Taking as true its claim that Ohio and Indiana did not have legally sufficient RACM/RACT measures for fine particulate matter at the time of redesignation, we find it highly likely that imposition of RACM/RACT would have some marginal effect on area emissions,” Gibbons wrote for the panel. “Or at least as likely as an environmental litigant could ever hope to establish.”
     She continued: “We therefore find it reasonable to infer actual and imminent aesthetic and physical injuries to an identified member of the club from redesignation of the Cincinnati area.”
     Gibbons then turned to the Sierra Club’s arguments regarding the “attainment” designation granted by the EPA.
     The club had argued that an area cannot be granted attainment status as a result of reduced pollutant inflow from outside sources, and must instead adopt the RACM/RACT measures to curb pollution from within its borders.
     The EPA countered by arguing that the “statutory text is silent on the location of the reductions,” and the panel agreed.
     “Here, EPA’s interpretation seems eminently reasonable,” Gibbons wrote for the panel. “In its direct final rule, the agency indicated that emissions from other ‘upwind’ states significantly influence particulate matter concentrations in the Cincinnati area. It might well be the case that regional source reductions would be necessary to attainment under any scenario, but we need not examine that question in full. The existence of a regional problem is enough to conclude that EPA’s regional focus on emissions reductions is ‘sufficiently rational’ and within the statutory ambit to warrant deference to its technical expertise.”
     The Sierra Club had also argued that the states’ reliance on cap-and-trade programs to reduce emissions were not “permanent” solutions, but the panel disagreed.
     Under the region-wide interpretation used by the EPA, “the ‘cap’ in each of the cap-and-trade programs would ensure that the relevant ‘reductions’ are not foreseeably reversed, at least at the level of the entire cap-and-trade region,” Gibbons wrote.
     The panel did, however, agree with the Sierra Club’s argument that SIPs must include RACM and RACT provisions, as well as its citations from the 2001 Sixth Circuit case Wall v. EPA.
     In Wall, the Sixth Circuit ruled that “the statutory language regarding the implementation of RACT rules is not ambiguous,” and that “by this language, it is clear that Congress intended for SIPs submitted in redesignation requests to include provisions to require the implementation of RACT measures.”
     The EPA cited the 2004 Seventh Circuit case Sierra Club v. EPA, in which “the phrase ‘applicable implementation plan’ could conceivably refer to something other than the pre-attainment SIP,” but the Sixth Circuit disagreed.
     “A state seeking redesignation ‘shall provide for the implementation’ of RACM/RACT, even if those measures are not strictly necessary to demonstrate attainment with [pollution requirements,]” Gibbons wrote for the panel. “If the state has not done so, EPA cannot ‘fully approve’ the area’s SIP, and redesignation to attainment status is improper.”
     Ultimately, the panel vacated the Ohio and Indiana redesignations, but allowed the Kentucky redesignation to stand.
     The other members of the panel included Circuit Judge Raymond Kethledge and U.S. District Court Judge Robert M. Dow Jr. of the Northern District of Illinois.

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