795 F.3d 118 (D.C. Cir. 2015), 11-1302, EME Homer City Generation, L.P. v. Environmental Protection Agency

Docket Nº:11-1302, 11-1315, 11-1323, 11-1329, 11-1338, 11-1340, 11-1350, 11-1357, 11-1358, 11-1359, 11-1360, 11-1361, 11-1362, 11-1364, 11-1365, 11-1366, 11-1367, 11-1368, 11-1369, 11-1371, 11-1372, 11-1373, 11-1374, 11-1375, 11-1376, 11-1377, 11-1378, 11-1379, 11-1380, 11-1381, 11-1382, 11-1383, 11-1384, 11-1385, 11-1386, 11-1388, 11-1389, 11-1390, 11-1391,
Citation:795 F.3d 118
Opinion Judge:Kavanaugh, Circuit Judge
Party Name:EME HOMER CITY GENERATION, L.P., PETITIONER v. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT SAN MIGUEL ELECTRIC COOPERATIVE, ET AL., INTERVENORS
Attorney:Bill Davis, Assistant Solicitor General, Office of the Attorney General for the State of Texas, argued the cause for State and Local Petitioners. With him on the briefs on remand were Ken Paxton, Attorney General, Jon Niermann, Chief, Environmental Protection Division, Mark Walters, Assistant Att...
Judge Panel:Before: ROGERS, GRIFFITH, and KAVANAUGH, Circuit Judges.
Case Date:July 28, 2015
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 118

795 F.3d 118 (D.C. Cir. 2015)

EME HOMER CITY GENERATION, L.P., PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT SAN MIGUEL ELECTRIC COOPERATIVE, ET AL., INTERVENORS

Nos. 11-1302, 11-1315, 11-1323, 11-1329, 11-1338, 11-1340, 11-1350, 11-1357, 11-1358, 11-1359, 11-1360, 11-1361, 11-1362, 11-1364, 11-1365, 11-1366, 11-1367, 11-1368, 11-1369, 11-1371, 11-1372, 11-1373, 11-1374, 11-1375, 11-1376, 11-1377, 11-1378, 11-1379, 11-1380, 11-1381, 11-1382, 11-1383, 11-1384, 11-1385, 11-1386, 11-1388, 11-1389, 11-1390, 11-1391, 11-1392, 11-1393, 11-1394, 11-1395

United States Court of Appeals, District of Columbia Circuit

July 28, 2015

Argued, February 25, 2015

On Petitions for Review of a Final Rule Promulgated by the United States Environmental Protection Agency.

Bill Davis, Assistant Solicitor General, Office of the Attorney General for the State of Texas, argued the cause for State and Local Petitioners. With him on the briefs on remand were Ken Paxton, Attorney General, Jon Niermann, Chief, Environmental Protection Division, Mark Walters, Assistant Attorney General, Derek Schmidt, Attorney General, Office of the Attorney General for the State of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney General, Pamela Jo Bondi, Attorney General, Office of the Attorney General for the State of Florida, Jonathan A. Glogau, Chief, Complex Litigation, Henry V. Nickel, George P. Sibley III, Luther Strange, Attorney General, Office of the Attorney General for the State of Alabama, Robert D. Tambling, Assistant Attorney General, Greg Zoeller, Attorney General, Office of the Attorney General for the State of Indiana, Thomas M. Fisher, Solicitor General, David R. Taggart, Samuel S. Olens, Attorney General, Office of the Attorney of the State of Georgia, John E. Hennelly and James D. Coots, Senior Assistant Attorneys General, James D. " Buddy" Caldwell, Attorney General, Office of the Attorney General for the State of Louisiana, Megan K. Terrell, Assistant Attorney General, Herman Robinson, Jackie M. Marve, Elliott Vega, Donald Trahan, Deidra Johnson, Kathy M. Wright, Aaron D. Lindstrom, Solicitor General, Office of the Attorney General for the State of Michigan, Neil David Gordon, Assistant Attorney General, Sean Peter Manning, Chief, Environmental, Natural Resources, and Agriculture Division, Blake Johnson, Assistant Attorney General, Doug Peterson, Attorney General, Office of the Attorney General for the State of Nebraska, Harold E. Pizzetta III, Assistant Attorney General, Office of the Attorney General for the State of Mississippi, E. Scott Pruitt, Attorney General, Office of the Attorney General for the State of Oklahoma, Patrick Wyrick, Solicitor General, P. Clayton Eubanks, Deputy Solicitor General, J.B. Van Hollen, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Wisconsin, Thomas J. Dawson, Assistant Attorney General, Michael DeWine, Attorney General, Office of the Attorney General for the State of Ohio, Dale T. Vitale, Gregg H. Bachmann and Elizabeth Ewing, Assistant Attorneys General, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, James Emory Smith, Jr., Deputy Solicitor General, and Leslie Sue Ritts. William J. Cobb for the State of South Carolina entered an appearance.

Peter D. Keisler argued the cause for Industry and Labor Petitioners. With him on the briefs on remand were C. Frederick Beckner III, Roger R. Martella, Jr., Eric D. McArthur, Benjamin Beaton, F. William Brownell, P. Stephen Gidiere III, Grant Crandall, Arthur Traynor III, Eugene M. Trisko, Ann M. Seha, Daniel J. Kelly, William M. Bumpers, Joshua B. Frank, Megan H. Berge, Kelly M. McQueen, Janet J. Henry, Robert A. Manning, Joseph A. Brown, Mohammad O. Jazil, Bart E. Cassidy, Katherine L. Vaccaro, Todd E. Palmer, Jordan J. Hemaidan, Valerie L. Green, Jeffrey L. Landsman, Vincent M. Mele, Richard G. Stoll, Brian H. Potts, Steven G. McKinney, C. Grady Moore III, Ben H. Stone, Terese T. Wyly, Karl R. Moor, William L. Wehrum, Jr., Margaret Claiborne Campbell, Bryon W. Kirkpatrick, Hahnah Williams Gaines, James S. Alves, Gary V. Perko, David M. Flannery, Kathy G. Beckett, Laura M. Goldfarb, Peter S. Glaser, Andrea Bear Field, Norman W. Fichthorn, E. Carter Chandler Clements, David R. Tripp, Dennis Lane, William F. Lane, and Maureen Harbourt.

Shannon L. Goessling and Michael J. Nasi were on the brief for intervenor San Miguel Electric Cooperative, Inc. and Amicus Southeastern Legal Foundation, Inc. in support of petitioners on remand. Robert M. Cohan entered an appearance.

Norman L. Rave, Jr. and Jessica O'Donnell, Attorneys, U.S. Department of Justice, argued the causes for respondents. With them on the brief were John C. Cruden, Assistant Attorney General, and Stephanie Hogan, Attorney, U.S. Environmental Protection Agency.

Andrew G. Frank, Assistant Attorney General, Office of the Attorney General for the State of New York, argued the cause for State and Local Intervenors in support of respondent. With him on the brief on remand were Eric T. Schneiderman, Attorney General, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Michael J. Myers, Assistant Attorney General, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Mary E. Raivel, Assistant Attorney General, Roy Cooper, Attorney General, Office of the Attorney General for the State of North Carolina, Marc Bernstein, Special Deputy Attorney General, Peter F. Kilmartin, Attorney General, Office of the Attorney General for the State of Rhode Island, Gregory S. Schultz, Assistant Attorney General, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Kimberly P. Massicotte and Scott N. Koschwitz, Assistant Attorneys General, Matthew Denn, Attorney General, Office of the Attorney General for the State of Delaware, Valerie M. Edge, Deputy Attorney General, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, Matthew J. Dunn and Gerald T. Karr, Assistant Attorneys General, William J. Moore III, Benna Ruth Solomon, Carrie Noteboom, William H. Sorrell, Attorney General, Office of the Attorney General for the State of Vermont, Thea Schwartz, Assistant Attorney General, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Frederick D. Augenstern, Assistant Attorney General, Karl Racine, Attorney General, Office of the Attorney General for the District of Columbia, Todd Kim, Solicitor General, Scott J. Schwarz, and William R. Phelan, Jr.

Graham G. McCahan argued the cause for Public Health Respondent Intervenors. With him on the brief on remand were Howard I. Fox, David S. Baron, Josh Stebbins, Vickie L. Patton, Sean H. Donahue, David Marshall, John Walke, and Emily Davis. Ann B. Weeks entered an appearance.

Brendan K. Collins argued the cause for Industry Respondent Intervenors. With him on the brief on remand were Robert B. McKinstry, Jr., Lorene L. Boudreau, and James W. Rubin.

Before: ROGERS, GRIFFITH, and KAVANAUGH, Circuit Judges.

OPINION

Kavanaugh, Circuit Judge

The Clean Air Act requires EPA to set national ambient air quality standards, or NAAQS. Those standards limit the levels of common pollutants in the ambient air. See 42 U.S.C. § 7409(a). Under the Act, individual States are responsible for ensuring attainment within their States of federal air quality standards. But air pollution is " heedless of state boundaries." EPA v. EME Homer City Generation, L.P., 134 S.Ct. 1584, 1593, slip op. at 2 (2014). Emissions in upwind States therefore may affect air quality in downwind States. The Clean Air Act's " good neighbor" provision speaks to that problem by proscribing upwind States from " emitting any air pollutant in amounts" that will " contribute significantly to nonattainment" of a NAAQS in a downwind State. 42 U.S.C. § 7410(a)(2)(D)(i). This case concerns EPA's effort to regulate interstate air pollution pursuant to the good neighbor provision.

In 2011, EPA promulgated its latest good neighbor regulation, the Transport Rule, also known as the Cross-State Air Pollution Rule. A number of States, localities, and industry groups promptly challenged the Rule. They argued, among other things, that the Rule's methodology for computing the upwind States' emissions reduction obligations under the good neighbor provision exceeded EPA's statutory authority. As relevant here, they contended that the Rule imposed uniform pollution reductions on upwind States regardless of the actual amounts of pollution that individual upwind States contributed to downwind States. According to petitioners, this methodology led to over-control of upwind States' emissions. Applying our precedents in North Carolina v. EPA, 531 F.3d 896, 382 U.S.App.D.C. 167 (D.C. Cir. 2008), and Michigan v. EPA, 213 F.3d 663, 341 U.S.App.D.C. 306 (D.C. Cir. 2000), this Court issued a 2-1 decision, with Judge Rogers dissenting, that agreed with petitioners and vacated the Rule. See EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38, 402 U.S.App.D.C. 383 (D.C. Cir. 2012).

On review, the Supreme Court reversed in a 6-2 decision. The Court ruled that the over-control problem did not require invalidation of the Rule " on its face." EME Homer, 134 S.Ct. at 1609, slip op. at 31. In doing so, however, the Court stated that it " agree[d] with the Court of Appeals to this extent" : The Transport Rule requires " unnecessary" emissions reductions when EPA " requires an upwind State to reduce emissions by more than the amount necessary to achieve attainment in every downwind State to which it is linked." Id. at 1608-09, slip op. at 29-31. The Court stated that over-control of...

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