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Case number 12-1342.

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Utility Air Regulatory Group Petitioner versus Environmental Protection Agency.

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Mr. McFadren for Conservation Group Petitioners.

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Mr. Rave for Respondent EPA.

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Mr. Flynn for Industry and State Intervener Respondents.

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Mr. Fitch-Thorn for Industry and State Petitioners.

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Mr. Rave again for Respondent EPA.

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And Mr. McFadren again for Conservation Group Interveners Respondent.

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Good morning.

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Please support Charlie McFedrin for Conservation Group Petitioners.

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I'd like to reserve one minute of my time for rebuttal.

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Today we will focus our presentation on two issues in which EPA acted unlawfully and arbitrarily.

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First, EPA failed to examine emissions at the state or subregional level when making the comparison between best available retrofit technology and the transport rule, and failed to rationally respond to comments about this issue by federal land managers.

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Second, EPA failed to set best available retrofit technology, or BART, in a manner demonstrated by statute, and failed to rationally respond to comments demonstrating its presumptive level of BART was weaker than statutory BART than BART under the Clean Air Act for many sources.

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First, EPA committed legal error in failing to consider a sub-regional or state-level approach.

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EPA's approach to BART looked at 48 states, and BART under the statute is determined at the state level.

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Can you focus your remarks on how you would, in making that argument, get around our URG decision where we faced that issue and I thought specifically rejected the notion that the aggregate across the geographic areas was inadequate.

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There are a couple of levels to that, if I may.

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First, each alternative to BART, we believe, has to be judged on its own merits.

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CASPER, the current transport rule, is not the same as CARE.

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It covers a wider geographic area.

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It has more extended timelines.

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EPA, in fact, in its rulemaking, had a section of its federal register notes that described all the differences between CASPER and CARE.

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In terms of the averaging approach, we believe that the regulation provides EPA with the flexibility to look at 48 states, basically nationwide in 48 states, or to look at a state level or sub-regional approach.

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That approach was highlighted by the federal land managers and their comments to the record of this rulemaking.

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The federal land managers stressed a state level approach first, and there's a powerful table in the bar service comments that shows for eight states west of the Mississippi River how the transport rule compares to BART and how the emissions are lower in that eight state region for BART than they are for the transport rule.

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The states that really jump out for us are things that aren't even in our own comments, but they're in that federal land manager comment about Kansas and Nebraska in the National Park Service comments, where there are big sources of air pollution that impact national parks in those states that will have essentially no controls under the transport rule, whereas if an effective level of bar was applied to those sources,

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We'd see benefits at parks like Wind Cave, Theodore Roosevelt, and Badlands in the Dakotas.

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Parks that are impacted by those sources.

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And the other one I want to mention is Texas.

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EPA just before... Right, I appreciate those aspects of the record, but I'm looking at...

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Our decision, and it's the second to last paragraph of our 2006 UR decision that says, nothing in the Hayes Act's reasonable progress language requires at least as much improvement in each and every individual area as BART itself would achieve.

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And EPA's requirement of some improvement at all areas, coupled with no degradation at any area on the best days, appears a reasonable notion of reasonable progress.

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So the aggregate is enough as long as there is no area-specific degradation, and I take it that means degradation from existing, not degradation as compared to BART.

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Well, we believe it is as compared to, and that's consistent with EPA's own regulation in 51-308-E3.

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As compared to BART?

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As compared to between the alternative.

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The alternative program that EPA's proposing as compared to BART.

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We also, we view the failure here, Your Honor, as a multi-pronged failure.

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So we've identified 14 national parks that do worse

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under the transport rule.

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And those are identified in our plan.

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Then they would under BART.

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Not that they are.

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Correct.

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Then they would as a comparison, as EPA itself has set up the test in E3.

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We also look at the EPA's action regarding

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the presumptive levels of BART and the failures that we see in presumptive levels of BART that we've identified in our brief, including things like failure to identify smaller sources, failure to address the statutory factor of remaining useful life.

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I was just going to say that I

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follow your argument, and when I first read 51.308E3, I read it the way you were just proposing, lack of degradation compared to BART in every class one area.

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But I think, and my panelists and counsel today will correct me if I'm wrong, I think we have read that, and EPA reads it to me, lack of degradation compared to the status quo, in which case,

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and we've approved that reading.

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And so my question's really a question not about the logic of your reading on its own terms, but against the backdrop of where we are given our precedent.

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For us, fundamentally, it's the language of the statute.

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We come back to the language of the statute.

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Which is remedying any existing impairment of visibility.

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And talks about states, also.

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And uses words like source when talking about BART and how BART should be applied.

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I think the language that I'm looking at is in sort of the preamble to the part of E3 that's before little one and little two.

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And there's language there about comparing the two alternatives.

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And when you look at that language as animated by the statue,

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We think it's important for EPA to make that comparison with reference to statutory factors.

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And EPA's guidelines acknowledge that source-specific BART under the statute is still relevant and still vital even when there's a presumptive BART standard to apply.

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You mentioned the use of useful life issue.

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Yes.

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And suppose we were to find that the EPA response to the comments on that was not very thorough or clear.

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That would be the only flaw when we have to remand the matter for clarification of that under January, I suppose.

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We think that that's indicative of wider failures by EPA to address the five factors.

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We do think the remaining useful life is an example that Your Honor has identified that jumps out at us because it's a statutory.

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Do you have an answer to the argument that the government made in its brief?

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As I interpreted it was essentially that the situations where it cuts one way and the situations where it cuts another way, it's fundamentally impossible to make a clear calculation as to which will do what when.

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Fundamentally, EPA didn't make that argument on the record.

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In terms of addressing the substance of what the government offered as post hoc rationalization, it's important because it animates it.

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how EPA evaluates controls of the source.

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The source may be dirty and may be closing next year, so it may not make economic sense.

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And BART is an economic, in part, calculation about plants.

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It may not make economic sense to insist... Right.

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No, I understand.

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I think I understand the trade-offs.

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Yes.

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But is it not every reason to expect that the EPA would say exactly what its lawyers have said?

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We think that would be a useful dialogue to engage in because we think that it's part, yes, we would like to see that remand, we would like to see that discussion as part of a remand, and we expect that the remand would cover broader issues as well.

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Thank you.

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Expired?

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Yeah, okay.

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That's what the red means.

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Good morning, Your Honors.

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Norman Ray from the Department of Justice on behalf of the EPA.

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Let me address the two issues that the petitioners have raised.

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The first having to do with the

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subdivision.

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The EPA's regulations, the same analysis EPA did in the UR case, but the regulations allow EPA to determine that an alternative is superior to BARC, better than BARC, if it achieves average improvement over

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over bar, the average resources.

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And that's exactly what it did here.

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And that's, is.

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But Mr. Ray, what about the portion that opposing counsel pointed to, if just preceding in the Federal Register, the announcement of the standard, the visibility should not decline and there should be overall improvement.

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If the distribution of emissions is not substantially different.

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I mean, the thing, just to be clear, the thing that strikes me as,

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unusual about the Hayes rule is it really is geographically specific.

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And so the point is, yes, if you have a program or a statutory requirement for air quality that is basically rendered superfluous by another air quality program, then it seems like the substitution makes perfect sense.

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Why require all kinds of compliance with machinery when you have a trading program under a different authority?

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When you're dealing with average air quality, that is sort of the end of the matter.

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But here we have this visibility rule, which is very geographically specific.

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So the notion that's saying, well, on average.

[00:12:14] Speaker 04:
Well, Your Honor, it's not on average for emissions.

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It's on average looking of the different sites.

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For visibility.

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Visibility at the particular site.

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So EPA does do.

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I mean, the first part of the analysis, this is a modeling exercise to compare BART versus the transport world.

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And the first part is to decide what the emissions are going to be from the various facilities.

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So for the BART facilities, they use either the presumptive limits or they use, excuse me, if the specific facility had a limit, it used that limit.

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The second step is to say, use a model that's

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calculates which facilities are going to run, the integrated planning model, which we've used in a number of rule makings, that says, okay, we're going to get, we know under these circumstances which facilities are going to run how much, then it calculates emissions based on that, and then it calculates what the results on visibility will do at each class one area.

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And for each class one area, what the modeling analysis showed is first, it's not going to get any worse than it is currently, which is EPA's interpretation, which is the court's interpretation.

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And frankly, the only logical interpretation of the regulation, because otherwise it would make the second prong superfluous.

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The second prong is the comparison between BART and the alternative.

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The first prong of the test is, does the alternative make it worse anywhere?

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So that is an independent prong, and that's what that prong means.

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The second prong is,

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And that is the regulation.

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And Your Honor, that regulation is long past time for review.

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It has been on the books.

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The application of that regulation to a very similar program in care was upheld by the court in Newark.

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And what EPA found was that

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on average, and I think there may be one class one area where the transfer role doesn't do better on either the best or worst states.

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So it does have improvement across the board.

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First of all, the Forest Service comments that petitioners are talking about were not public comments, Your Honor.

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Those were comments that were submitted to OMB during the interagency process that petitioners acquired through a FOIA.

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So they're not in the public docket.

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They are specifically excluded from the record of her judicial review by Section 307B of the Act.

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And I don't even know if the EPA ever saw them because they were submitted to OMB.

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OMB then transmits some kind of summary.

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So the fact that EPA did not explicitly respond to them is due to how they came into the agency and they are in fact not by statute part of the record for the judicial review here.

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And the agency did explain

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two things.

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It did get obviously the petitioner's comments and there were comments from DOI.

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It responded to both of those on the record and explained that number one, this is fully compliant with the regulations.

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The petitioners don't really contest because the regulations specifically allow

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It's improvement if it's better, if it achieves improvement on average.

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And as Your Honor pointed out, that was explicitly found in the UR decision by the court before.

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And they pointed out that because Passport Transport Rule is a regional program, and it affects over 26 states or over many states that EPA was modeling,

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It makes sense to evaluate its impact by looking at it regionally as opposed to breaking up the state into regions, which the petitioners never really defined how EPA was supposed to do that, how we were supposed to break it up into regions.

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And it said, plus it pointed out that the federal land management

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The transport rule is a regional program.

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The transport rule is a regional program.

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Right, but the haze, the visibility is not regional.

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That's correct, Your Honor, but in order to know what sources are going to do under the transport rule, you have to look at it on a regional basis and determine whether the transport rule, which is a regional approach,

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It's effective.

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You have to look at it for the whole region to know what it's doing.

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And it is certainly consistent with the regulations.

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Plus, the statute has other provisions.

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BART is only one part of the

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of the requirements that states have to meet.

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There are two other things to consider.

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One is, it's part of the overarching requirement that state SIPs achieve reasonable progress.

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So that if a state uses the transport rule and isn't achieving reasonable progress that affected

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class one areas, it has to be more.

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Secondly, federal land managers have the option of designating a source as what's called RAVI, Reasonable Attributable Visibility Impairment.

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And in fact, they mentioned Kansas, or Nebraska, excuse me, one of the large sources in Nebraska has been so designated, and the state has to address that issue.

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So there are other ways, and EPA did address this comment.

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And I know my time's up, but could I just address Judge Williams' question about the... Useful life.

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I'm sorry?

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Useful life.

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Yeah, useful life.

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First of all, useful life is raised in about two sentences.

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It was very succinct.

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So it was very succinct.

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It was not a major comment.

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It certainly, I don't believe warrants even remand to explain it.

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And I believe the agency has adequately explained it.

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It certainly explained it in its briefs and it was referred to in...

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And that it simply doesn't, there's no way, the premise here is that, well, if a facility is going to shut down, but they haven't demonstrated that the facility is going to shut down under BART, that it wouldn't shut down otherwise.

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It's going to have the same impact.

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In other words, there's no analysis by petitioners other than these two sentences saying, well, you didn't really think about this, to show that it would have made the slightest bit of difference in the analysis.

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because what usual trade-off is.

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No, but they're saying that if you're calculating for purposes of emissions trading, you're calculating an anticipated level of emissions, and you look at some of these older, dirtier plants, and you model them as if they're gonna be online in perpetuity, then you're setting

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the sort of reasonably achievable level higher than you would be if you realized that under BART on a real life case by case basis, a lot of those would go offline and emissions would be lower.

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That's how I take the argument to run.

[00:18:37] Speaker 04:
That is the argument, but they haven't shown any.

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First of all, all BART facilities are old facilities.

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By definition, it only applies to facilities.

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Exactly.

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So that only makes the argument stronger, doesn't it?

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Except that they haven't shown that there's going to be any significant difference in when these facilities would shut down under BART as opposed to... No, they don't need to, though, because their theory is just, what is your formula, and is your formula accurate?

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Because BART is not a formula, they don't...

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They don't need to show it with respect to that.

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They need to say, does your formula match what would happen if you weren't relying on a formula, but were relying on retrofitting requirements?

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First of all, the usual trade-off is they have higher emissions for each.

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A facility is going to shut down, has higher emissions for a period of time, and then shuts down.

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So it goes both ways.

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But I think what they're saying is if you're modeling, if technology is generally getting better, trending better, then you're modeling based on, you know,

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making a model that's supposed to stretch over time that has unrealistically generous assumptions in it.

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I mean, that's what I take their point to be.

[00:19:48] Speaker 04:
I don't think there's any basis to say that's an unrealistically generous assumption, because they haven't put any evidence forward to do that.

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And do you have another argument?

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Again, these plants are all over 40 years old.

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So they've been around a long time.

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Yeah.

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There's no compelling reason, and some of them may shut down, but it's not clear at all how it would affect the modeling, because if they're gonna shut down in the bar, they might very well shut down for other reasons.

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If they're gonna shut down for other reasons, it's not gonna affect the results.

[00:20:14] Speaker 02:
They may shut down, but it leaves the allowances that you're putting into the trading market at a higher level than they would otherwise be, because that's the way the alternative functions, right?

[00:20:25] Speaker 04:
The allowances are the same, but it's not going to change the emissions per se.

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It'll still be the same level of emissions.

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They'll just get redistributed to other facilities and they'll change the price of allowances.

[00:20:38] Speaker 02:
Exactly.

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I think that's their point.

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But again, they didn't present any evidence, didn't present anything to indicate that it's going to be a significant issue.

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It's raised in two sentences.

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Kind of offhandedly in their comments and not raised to the level that that requires a more substantive response Thank you

[00:21:13] Speaker 03:
May I please the court?

[00:21:15] Speaker 03:
I'm Aaron Flynn.

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I'm here on behalf of the state and industry intervener respondents.

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And I would like to address two jurisdictional issues that we describe in our brief that don't appear in the other briefs.

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EPA's decision to use the presumptive BART limits as the basis for its BART benchmark was entirely consistent with its rules in place for a considerable length of time.

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The 1999 BART rule allowed consideration of category-wide information.

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The presumptive limits clearly fall

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are qualified as category-wide information.

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And in 2006, EPA promulgated a rule that specifically determined that the presumptive limits are an appropriate tool for developing a BART benchmark when evaluating a BART alternative like the Cross-State Air Pollution Rule.

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The challenges here before this court today are effectively challenges against the 2006 rule and are therefore barred by 307B1.

[00:22:10] Speaker 03:
The 10th Circuit addressed this very issue and reached that conclusion in a case called Weld Earth Gargans v. EPA.

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The same petitioners, the environmental petitioners in this case, presented that argument there.

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And for that additional reason, they should be precluded from raising that issue before this court.

[00:22:28] Speaker 02:
Contrary to the reply- But there's an environmental petitioner here that wasn't present in the 10th Circuit case, right?

[00:22:33] Speaker 02:
So there's not a preclusion problem under Taylor versus Sturtle?

[00:22:37] Speaker 03:
There's perfect alignment between the environmental petitioners in these cases and in the 10th Circuit cases.

[00:22:44] Speaker 03:
Oh, I thought there was a party here that wasn't there.

[00:22:46] Speaker 03:
None on the environmental petitioner side, at least.

[00:22:51] Speaker 03:
The reply brief says these issues have been waived.

[00:22:55] Speaker 03:
They have not been waived.

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Jurisdictional issues obviously cannot be waived.

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This court has held many, many times that 307B1 is a jurisdictional matter, and nothing has undermined that holding.

[00:23:08] Speaker 03:
I see my time is up, so if there aren't any further questions, thank you for your time.

[00:23:11] Speaker 07:
Thank you very much, Mr. Flynn.

[00:23:23] Speaker 05:
Just a couple of quick points, Your Honors.

[00:23:27] Speaker 05:
In terms of the number of Class I areas that do worse as between the two alternatives, we've documented that it's 14 areas.

[00:23:34] Speaker 05:
That's in our brief at page 39 and in the joint appendix at pages 69 to 71, 069 to 071.

[00:23:41] Speaker 05:
In terms of the regions and whether regional alternatives were offered,

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The option to look at this at the state level is always before EPA.

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That's the way the statute is written, in fact.

[00:23:55] Speaker 05:
That's the way EPA's own region is written.

[00:23:58] Speaker 02:
What about Mr. Rae's point that any kind of backsliding or failure to make reasonable progress at a particular area is taken account of through other aspects of BART in the SIP?

[00:24:14] Speaker 05:
Other aspects of BART?

[00:24:16] Speaker 02:
If there's a more localized problem, then the SIP is required to tighten up the requirements beyond the transport role.

[00:24:26] Speaker 05:
BART is the heart of the HAYS program.

[00:24:30] Speaker 05:
Applying good technology at individual sources is how we get the best HAYS benefits.

[00:24:38] Speaker 05:
We don't support, we would

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consider a fallback program, some other program that might pick up something like reasonably attributable visibility impairment that might pick up a problem later on.

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But what we really want is for BART to be well applied at each individual source.

[00:24:55] Speaker 05:
And in terms of the regions and whether we offer a regional approach, the federal land managers

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suggested this Mississippi West region, this eight-state region, and they offered detailed omission data about how that region would do better, including the states I mentioned before, Kansas and Nebraska and Texas.

[00:25:15] Speaker 02:
But apparently not in the administrative record?

[00:25:17] Speaker 05:
They are in the record.

[00:25:20] Speaker 05:
They're in the Joint Appendix.

[00:25:21] Speaker 05:
The U.S.

[00:25:21] Speaker 05:
Forest Service comments were submitted by us as an attachment to our comments.

[00:25:27] Speaker 05:
So they are in the record.

[00:25:28] Speaker 05:
I wanted to mention that, too.

[00:25:31] Speaker 05:
Thank you.

[00:25:46] Speaker 01:
May it please the court.

[00:25:47] Speaker 01:
My name is Norman Fickthorn, Council for the Utility Air Regulatory Group, here on behalf of industry and state petitioners.

[00:25:56] Speaker 01:
EPS disapproval of carry with Bart sips should be vacated because EPA lacked any rational basis for rejecting state plans that relied on carry emission reductions and mission reductions that this that the agency concluded were lasting emission reductions.

[00:26:14] Speaker 01:
and that this court held actually produced better visibility improvement than BART.

[00:26:20] Speaker 01:
In fact, far better, the court said in UR versus EPA, far better improvement than BART in terms of visibility.

[00:26:28] Speaker 01:
EPA acknowledged that care produced permanent and enforceable emission reductions that are better than BART at improving visibility.

[00:26:36] Speaker 01:
These are not fleeting or transitory or ephemeral emission reductions.

[00:26:42] Speaker 02:
But Mr. Feckland, that's not really the question for us, right?

[00:26:44] Speaker 02:
The question for us now is, if the transport rule is the emissions trading program, the authority for the emissions trading program in place, how could you graft some levels permitted under

[00:26:59] Speaker 02:
the prior rule under care and use those in the other program.

[00:27:04] Speaker 02:
It just seems like apples and oranges.

[00:27:06] Speaker 01:
Judge Pillard, we don't take the position that EPA needs to resurrect care itself.

[00:27:11] Speaker 02:
Right, but just give you the allowances that were calculated under care.

[00:27:15] Speaker 01:
Not the allowances, Your Honor, not the admission allowances under the care program itself, but simply recognize

[00:27:21] Speaker 01:
that when states relied on the CARE emission reductions, they were acting appropriately under the emission, the part regulations that existed at the time, and this court's decision in UR v. CPA in 2006.

[00:27:39] Speaker 01:
The actions that EPA took in 2012 to disapprove the CARE equals part SIFS were actions taken at a time when CARE was fully in effect, and states had to comply with those reductions.

[00:27:54] Speaker 01:
And EPA moreover said in its brief on page 58 that CARE had resulted in the installation of control devices that reduced emissions

[00:28:04] Speaker 01:
And because care was being replaced by Casper, which was a more stringent program, not a relaxation of care, those reductions, those care reductions were permanent and enforceable.

[00:28:17] Speaker 01:
And EPA more over said, again,

[00:28:19] Speaker 07:
I thought the most dramatic part of your brief was the contrast between your states and Connecticut.

[00:28:25] Speaker 07:
But there does appear to be a distinction between them in terms of the status of care under decisions of this court at the respective times of the decision on your states and the decision on Connecticut using care.

[00:28:43] Speaker 01:
Judge Williams, I think the argument for EPA having acted unlawfully in disapproving the Care Equals BART SIPs that we're talking about is even stronger in light of the differences that existed in 2012 when EPA took those actions and in 2014 when EPA approved Connecticut's Care Equals BART SIP.

[00:29:07] Speaker 07:
Our court had changed its

[00:29:09] Speaker 07:
view of care, rightly or wrongly, but that's just, that's building to the record.

[00:29:15] Speaker 07:
So that care, although at best on life support throughout this whole period, was doing better at the point where the Connecticut decision was made.

[00:29:25] Speaker 01:
I think CARE was doing worse at that time, with all respect, Your Honor, because at the time EPA submitted its approval of Connecticut's CARE equals BART SIP in July 2014, submitted it to the Federal Register, the Supreme Court had reversed this Court's vacatur of Casper.

[00:29:45] Speaker 01:
So it was clear at that time, and in fact, EPA had already moved this court to lift the stay of Casper, which, of course, this court shortly thereafter granted.

[00:29:57] Speaker 01:
In other words, Casper was being revived at the time, at the very time, EPA was approved, finalizing approval of the Connecticut Care Equals Part SIP.

[00:30:06] Speaker 01:
So, EPA took an action on the Connecticut carry equals BART stiff that we think is perfectly in line with the conclusion that the carry emission reductions were permanent and enforceable, as EPA has said dozens of times in the Federal Register, even saying it as recently as January of this year, long after... Have they said it's permanent?

[00:30:28] Speaker 01:
Permanent and enforceable, Your Honor.

[00:30:31] Speaker 01:
That suggests that they couldn't impose stricter requirements under the transport rule.

[00:30:36] Speaker 01:
It doesn't necessarily suggest that they couldn't impose stricter requirements under the transport rule.

[00:30:41] Speaker 01:
They did indeed do that.

[00:30:44] Speaker 01:
But they never have retracted or disavowed their statements.

[00:30:48] Speaker 01:
In fact, they've repeated their statements, even as early as January of this year, that the care emission reductions were permanent and enforceable, essentially locked in.

[00:30:56] Speaker 01:
Those emission reductions under care were locked in under CASPER, which was a more stringent program.

[00:31:02] Speaker 02:
I mean, it makes sense that it would sort of be a one-way ratchet to the extent that the law and the courts are requiring the EPA to go further.

[00:31:11] Speaker 02:
They're saying, well, don't abandon what you're doing under care, and then let's establish and finalize the legality of the transport rule.

[00:31:22] Speaker 02:
And okay, that's demanding a bit more.

[00:31:24] Speaker 02:
And I guess I don't see the illogic of EPA saying, okay, now everyone has to do the bit more.

[00:31:32] Speaker 01:
And of course, the states that were subject to CASPER did more, but that doesn't negate or undermine the emission reductions that were achieved through the installation of control devices, as EPA said, under CARE.

[00:31:48] Speaker 01:
But it doesn't necessarily render them adequate either, does it?

[00:31:51] Speaker 01:
It renders them adequate for purposes, Your Honor, of the BART alternative.

[00:31:55] Speaker 01:
That's what we're talking about here.

[00:31:57] Speaker 01:
This court held unqualifiedly in utility air regulatory group versus EPA in 2006 that CARE produced visibility improvement that was far greater, not just greater, but far greater than BART.

[00:32:11] Speaker 07:
So for EPA to... But if CARE is dead, it seems to be the case.

[00:32:16] Speaker 07:
then the training program of which the EPA findings, which was the support of the EPA finding, disappears, right?

[00:32:31] Speaker 01:
Your Honor, I don't think it disappears at all.

[00:32:34] Speaker 01:
I think that it stands.

[00:32:36] Speaker 01:
In fact, in a way, it strengthened because Casper was more strengthened than CARE, and no one disputes that.

[00:32:42] Speaker 01:
EPA said repeatedly Casper produces more emission reduction.

[00:32:46] Speaker 01:
So you can view Casper as CARE plus.

[00:32:49] Speaker 01:
If CARE was enough to satisfy BART, then Casper is even more, if you will, enough to satisfy BART.

[00:32:56] Speaker 01:
As a practical matter,

[00:32:58] Speaker 07:
What would a decision in your favor do?

[00:33:02] Speaker 01:
Your Honor, I think that your question may get to what EPA called and the environmental interveners called mootness.

[00:33:10] Speaker 01:
And of course, as you know, defendants have the obligation or respondents have the obligation to show mootness.

[00:33:17] Speaker 01:
We don't believe they've done that.

[00:33:18] Speaker 01:
All parties agree that the question as to mootness concerns whether this court could provide any effectual relief whatsoever.

[00:33:28] Speaker 01:
And that's the established test.

[00:33:30] Speaker 01:
We think it's clear that because the environmental petitioners are challenging Casper equals BART.

[00:33:37] Speaker 01:
And in fact, in their October 30th rule 28 J letter, they specifically reserve the right to challenge EPA's very recent reaffirmation of Casper equals BART.

[00:33:47] Speaker 01:
We face the prospect, our clients face the prospect of the possibility that Casper equals part might go away.

[00:33:55] Speaker 01:
We don't think it should.

[00:33:56] Speaker 01:
We think it's always the contingency, so it's a contingency.

[00:34:00] Speaker 01:
Essentially, Your Honor, yes.

[00:34:02] Speaker 01:
I see that my time has expired.

[00:34:03] Speaker 01:
Are there any further questions of the court?

[00:34:07] Speaker 01:
Thank you.

[00:34:16] Speaker 07:
I'm almost brave, obviously.

[00:34:17] Speaker 07:
I want your answer on the contingency.

[00:34:19] Speaker 04:
Yes, Your Honor.

[00:34:23] Speaker 04:
Well, first of all, Your Honor, it's purely speculative.

[00:34:26] Speaker 04:
And clearly, it's the court.

[00:34:29] Speaker 04:
And it certainly shows.

[00:34:29] Speaker 07:
That argument is available whenever you're talking about a contingency.

[00:34:32] Speaker 04:
No, that's true, Your Honor.

[00:34:33] Speaker 04:
But still, the petitioners here have never articulated any real injury that they have suffered from the care SIPs being

[00:34:44] Speaker 04:
disapproved, there's no injury, they haven't probably got any remedy.

[00:34:48] Speaker 04:
Their only remedy is to say, well, if you disapprove the Casper versus Vart rule, perhaps it should be in place, but that still doesn't make any sense.

[00:34:58] Speaker 02:
But isn't there injury, Mr. Rave, reliance?

[00:35:00] Speaker 02:
They're saying, we've done this, we've complied, we've stepped up to the line, sir, yes, sir, and now you're telling us to do something different.

[00:35:09] Speaker 04:
No, well, they may be making, they really haven't articulated that argument, but even if they are, it's not warranted for a number of reasons.

[00:35:16] Speaker 04:
One, this court in North Carolina specifically said that care was going to have to be replaced.

[00:35:21] Speaker 04:
So care from day one when they submitted their steps was clearly a temporary measure.

[00:35:26] Speaker 07:
Secondly, despite your saying many times that the improvements under it were permanent, you get the other adjective.

[00:35:34] Speaker 04:
Well, Your Honor, I wanted to get to that point, which is that EPA has only made that statement in the context of states where care was replaced by CASPER.

[00:35:43] Speaker 04:
It has not ever taken the position, and clearly throughout this litigation we haven't taken the position, that a state that was formerly in care but is no longer, in other words, is not replaced by Casper, that those emission reductions are permanent because they can't be.

[00:35:58] Speaker 04:
Yes, they may have put on controls, but they don't have to run them if there's no regulation.

[00:36:03] Speaker 04:
And it costs money to run them.

[00:36:04] Speaker 04:
And there's certainly no assumption that a state that was in care and is no longer in care is going to run them unless they make some state-specific showing that they have put other regulatory requirements in place.

[00:36:17] Speaker 04:
And the EPA's regular.

[00:36:18] Speaker 07:
So are you saying that a state that is out of care

[00:36:22] Speaker 07:
under your regulation challenge here, could simply adopt regulations enforcing the same behavior that it was doing, that its sources were doing under care, and that would take care of it, subject, of course, to the Casper.

[00:36:44] Speaker 04:
Well, they would have to make a showing of that.

[00:36:47] Speaker 04:
And I think, Your Honor, it's worth looking at.

[00:36:50] Speaker 04:
Of the 14 states that EPA disapproved, nine of them were going to be in Casper and were basically rolled over into Casper.

[00:36:59] Speaker 04:
So EPA promulgated the same action.

[00:37:01] Speaker 04:
It promulgated, it disapproved these CARE CIPs.

[00:37:04] Speaker 04:
It promulgated federal implementation plans for Casper for nine of the states.

[00:37:08] Speaker 04:
It also in that federal registry.

[00:37:10] Speaker 04:
said, because at that time, CARE had been, or CASPER had been stayed, in that Federal Register notice, EPA specifically stated that it would not make states do anything as long as there was a question about whether CARE was in effect.

[00:37:26] Speaker 04:
And while it was in effect, that's on page 22 of the Joint Appendix.

[00:37:30] Speaker 04:
So there was no immediate harm.

[00:37:31] Speaker 04:
They didn't have to do anything.

[00:37:33] Speaker 04:
For nine of those states EPA promulgated, subsequently three states have submitted alternative SIPs demonstrating through state programs that they believe

[00:37:46] Speaker 04:
are an alternative bar to which EPA has approved and one EPA has proposed for approval.

[00:37:52] Speaker 04:
One additional state EPA has promulgated a federal plan for an in-state program, that's Texas, and there is one state, Mississippi, that EPA is still working with for trying to develop a SIP.

[00:38:03] Speaker 04:
The states and EPA have moved on.

[00:38:05] Speaker 04:
They've done just what the statutes said.

[00:38:07] Speaker 04:
Care no longer exists in these states.

[00:38:09] Speaker 04:
They have to come up with an alternative, and that's what we've moved forward to do.

[00:38:13] Speaker 04:
And if the Casper v. Barth rule was struck down by the court, that's what they would have to do.

[00:38:21] Speaker 04:
They'd have to come up with a new plan.

[00:38:23] Speaker 04:
all the Casper states as well as the states that aren't in Casper, either do BART or show that some other specific state plan was an adequate alternative to BART.

[00:38:35] Speaker 06:
It's contention that Connecticut is getting a free ride, at least relative to the Constitution.

[00:38:42] Speaker 04:
Yeah, that's simply not true, Your Honor, for a number of reasons.

[00:38:45] Speaker 04:
One, the actual approval of the stateship was made in April of 2013, not in 2014.

[00:38:54] Speaker 04:
It was published in 2014.

[00:38:56] Speaker 04:
because of a long dispute between the agency and the Office of the Federal Register over something.

[00:39:03] Speaker 04:
But it was actually, if you go to the Federal Register notice, you will see that it was signed and thus became in law in 2013.

[00:39:11] Speaker 04:
And it was signed in accordance with a district court order consent decree that required EPA to approve this, to make a decision on the SIF by that date, and also said,

[00:39:25] Speaker 04:
Part of that order was that they could not make any changes, that they had to submit to the Office of the Federal Register, and they couldn't make any changes to it before it was published, other than editorial changes.

[00:39:34] Speaker 04:
So that's one thing, is that, in fact, that approval was signed at the time when Casper had been vacated by this court and before the Supreme Court's decision.

[00:39:45] Speaker 04:
So the second thing is that the Connecticut SIP did not simply say, we're relying on care.

[00:39:52] Speaker 04:
The Connecticut SIP had a number of state programs.

[00:39:56] Speaker 04:
And the one that was for care was essentially a small part of the program, a small part of their

[00:40:02] Speaker 04:
a package of regulatory measures.

[00:40:05] Speaker 04:
They had other state measures.

[00:40:06] Speaker 04:
It accounted.

[00:40:07] Speaker 04:
And number two, the emissions from the state itself are extremely small.

[00:40:12] Speaker 04:
And three, EPA, in approving that set and once care is no longer in effect, you have to submit a set.

[00:40:19] Speaker 04:
So it's not, it was a very different time legally because it was while Casper had been vacated.

[00:40:25] Speaker 04:
And two, it was a very different kind of analysis.

[00:40:27] Speaker 04:
It wasn't just

[00:40:29] Speaker 04:
You've cited this care better than bar rule.

[00:40:32] Speaker 04:
It was a fact-specific analysis, which is what, in the five years since these SIPs were disapproved, the states and EPA have been doing.

[00:40:42] Speaker 04:
And that's why there's no harm and no injury for moving along.

[00:40:46] Speaker 04:
Any further questions, Jerome?

[00:40:48] Speaker 04:
Thank you very much.

[00:40:56] Speaker 05:
Charlie McFedrin for Conservation Group Petitioners.

[00:40:59] Speaker 05:
I just have three quick points I'd like to make.

[00:41:02] Speaker 05:
We agree with the government that CARE is dead, with Judge Williams' characterization that CARE is dead and has been superseded.

[00:41:09] Speaker 05:
We submit that CARE can't operate besides CASPER.

[00:41:15] Speaker 05:
The two programs are different.

[00:41:18] Speaker 05:
At JA 541-43, EPA describes in its federal notice differences between the programs and how they would be incompatible.

[00:41:29] Speaker 05:
And finally, I'd like to respond to something Mr. Fichthorn said, that if CARE is better than BART and CASPER is better than CARE, then CASPER must be better than BART.

[00:41:39] Speaker 05:
I hope I've summarized that fairly.

[00:41:41] Speaker 05:
We disagree with that because BART is dynamic.

[00:41:43] Speaker 05:
EPA itself, in the guidelines in the 2005 rule, describes how over time,

[00:41:50] Speaker 05:
pollution controls become more cost-effective and more widely available.

[00:41:54] Speaker 05:
And we have demonstrated in the record of this case and in our briefs how pollution controls have improved at plants throughout the United States.

[00:42:04] Speaker 05:
And we disagree that that syllogism applies here.

[00:42:10] Speaker 05:
Thank you.

[00:42:27] Speaker 01:
Your Honor, just a few quick points.

[00:42:31] Speaker 01:
EPA, I just want to reiterate that EPA never showed in its rulemaking and never asserted in its brief that the control devices installed to achieve care reductions would be dismantled or not run.

[00:42:48] Speaker 01:
They never have disavowed their statements that those care reductions were permanent and enforceable.

[00:42:54] Speaker 01:
With respect to Connecticut, we've talked about the EPA's approval of Connecticut's Care Equals BART SIP.

[00:43:01] Speaker 01:
that.

[00:43:01] Speaker 01:
Um first of all, Mr Rave pointed out that the initial approval of that sip.

[00:43:09] Speaker 01:
Occurred in 2013, but that was at a time when.

[00:43:13] Speaker 01:
It was

[00:43:18] Speaker 01:
It was unmistakably clear that Connecticut would never be subject to Casper.

[00:43:23] Speaker 01:
So the only emission reductions that could be relied on as a BART alternative were carry emission reductions for Connecticut.

[00:43:30] Speaker 01:
Moreover, again with respect to Connecticut, on July 19, 2013,

[00:43:37] Speaker 01:
EPA published a notice in the Federal Register regarding redesignation of southwestern Connecticut from non-attainment to attainment for ambient air quality standards.

[00:43:50] Speaker 01:
And EPA said, EPA believes, I'm quoting, EPA believes it is appropriate to allow states to rely on care.

[00:43:58] Speaker 01:
and the existing emission reductions achieved by CARE as sufficiently permanent and enforceable.

[00:44:06] Speaker 01:
So there does seem to be some policy that EPA followed that at least Connecticut, which it was clear would never be subject to CASPER, should be entitled to rely on the CARE emission reductions that its sources achieved to satisfy BART under the CARE equals BART alternative.

[00:44:27] Speaker 01:
I would also note that Mr. McFadden noted that Casper is quote, I think he used the word dynamic.

[00:44:34] Speaker 01:
The fact that he's challenging.

[00:44:35] Speaker 01:
I thought he said Bart was dynamic.

[00:44:38] Speaker 01:
I may have misheard.

[00:44:39] Speaker 02:
Yeah, that it was sort of because it's looking at the best available retrofit that's dynamic in a way that I think that the other plans aren't.

[00:44:46] Speaker 01:
I may have misheard, but I do want to note that his clients are challenging.

[00:44:51] Speaker 01:
Obviously, they're challenging Casper equals Bart here.

[00:44:54] Speaker 01:
They reserve their right to challenge the recent reaffirmation of Casper equals Bart, presumably, in this court.

[00:45:01] Speaker 01:
And I would also note that his clients are challenging SIPs or specific Bart SIPs

[00:45:09] Speaker 01:
that EPA has proposed to approve for Louisiana for sulfur dioxide.

[00:45:13] Speaker 01:
Louisiana is not subject to Casper for sulfur dioxide.

[00:45:17] Speaker 01:
And they're also challenging use of Casper equals part for NOx through rulemaking comments for Louisiana and Arkansas.

[00:45:28] Speaker 01:
They've also challenged, as this Court knows,

[00:45:31] Speaker 01:
the case.

[00:45:34] Speaker 01:
There's an ongoing campaign by these parties to strike down use of Casper equals part, not only in these present cases, but elsewhere as well.

[00:45:43] Speaker 01:
This shows why our clients would like this court to affirm that to make clear that it was inappropriate and improper for EPA to disapprove.