[00:00:04] Speaker 00: State of New York at ELL petitioners versus Environmental Protection Agency at ELL. [00:00:10] Speaker 00: Mr. Franklin for petitioners, Ms. [00:00:12] Speaker 00: Shea for respondents. [00:01:05] Speaker 03: Mr. Frankel, we'll hear from you. [00:01:12] Speaker 01: Good morning, Your Honors, and may it please the Court, David Frankel on behalf of the state petitioners. [00:01:17] Speaker 01: I'd like to reserve two minutes for rebuttal as well. [00:01:23] Speaker 01: EPA may not arbitrarily deny to the petitioning states a remedy that Congress tailored to this set of circumstances. [00:01:31] Speaker 01: EPA's decision not to expand the ozone transport region, despite the undisputed satisfaction of the statutory trigger here, should be vacated because EPA's justifications are unsupported by the record, refuted by context and history, and generally fail to display reasoned decision-making. [00:01:49] Speaker 01: EPA asserted that other statutory tools were sufficient to effectively address remaining problems of interstate ozone transport. [00:01:57] Speaker 01: But EPA's history of partial remedies and extensive delays in using these tools refutes the assertion that they alone can address the harms necessitating this petition. [00:02:09] Speaker 01: EPA's transport rule under the Good Neighbor provision, on which it heavily relied, provided only a partial remedy resolving the obligation. [00:02:16] Speaker 01: And that rule, addressed to only a single type of emitting source, took nine years to put in place after mistertainment deadlines from downwind states. [00:02:26] Speaker 01: Similarly, while EPA suggests that Section 126 petitions are an effective way to address the regional low zone problem, EPA has delayed and denied all recent petitions. [00:02:37] Speaker 01: EPA fails to reasonably explain why these other measures, which have provided only partial remedies on delayed timeframes, are themselves sufficient. [00:02:47] Speaker 01: And while EPA points to progress in reducing ozone levels as a justification for its denial, EPA failed to provide a reasoned explanation for why those trends were likely to continue. [00:02:58] Speaker 01: EPA relied without analysis on its unquantified expectations about the effects of various rules. [00:03:05] Speaker 01: But at the same time, EPA failed to explain how those rules were likely to continue to have those same expectations given the agency's contemporaneous regulatory rollbacks. [00:03:15] Speaker 01: And to give one concrete example here, simultaneously with his decision to deny this petition, EPA proposed a glider rule [00:03:24] Speaker 01: that is projected to increase NOx emissions by 300,000 tons. [00:03:27] Speaker 01: That's in contrast to the 60,000-ton reduction of the entire transport rule at issue, swamping it with five times the amount of increase as EPA's central rule on which it relies is likely to lead to increased reductions. [00:03:42] Speaker 03: Can I ask you a question about the transport rule, or I guess that's the same thing as the cross-state air pollution rule? [00:03:49] Speaker 01: The cross-state update, yes. [00:03:54] Speaker 03: The regulatory hook that EPA used for that was the Good Neighbor provision in the Clean Air Act, correct? [00:04:04] Speaker 03: Yes. [00:04:05] Speaker 03: And that's the same Good Neighbor provision that requires state implementation plans to account for cross-state air pollution, right? [00:04:23] Speaker 03: Yes. [00:04:24] Speaker 03: So when the rule was enacted, had EPA acted in a timely fashion on the state implementation plans that had been submitted by the states that were subject to the rule? [00:04:44] Speaker 01: No, EPA had not. [00:04:45] Speaker 01: EPA had extensively delayed in denying the SIPs and promulgating compliant FIPs. [00:04:51] Speaker 01: That would satisfy the Good Neighbor provision. [00:04:54] Speaker 01: And ultimately what we have is the Casper Update Rule, which itself is only a partial remedy that, again, only solves one of those 22 states' obligations under the Good Neighbor provision, though we have attainment deadlines being missed in the meantime by downwind states. [00:05:09] Speaker 01: We've had the 2015 deadline passed. [00:05:12] Speaker 01: We've had the 2018 deadline pass with the New York metropolitan area still unable to meet its obligations. [00:05:18] Speaker 01: And we have upcoming attainment deadlines that absent reductions in ozone transport from upwind states, additional noncompliance is likely. [00:05:27] Speaker 03: What do we have in the record with respect to [00:05:30] Speaker 03: the missed deadlines by EPA of either acting upon SIPs or promulgating FIPs for noncompliant SIPs? [00:05:45] Speaker 01: Well, we've psyched all these. [00:05:46] Speaker 01: I mean, these are all judicially noticeable. [00:05:49] Speaker 01: These are all actions that occurred within the Federal Register. [00:05:52] Speaker 01: And we explain how the EPA has delayed in fulfilling its obligations under these. [00:05:59] Speaker 01: and has not ultimately promulgated compliant FIPs for any of the good neighbor provisions, obligations of upwind states with very limited exceptions. [00:06:12] Speaker 04: But on your view, if EPA were more vigorously enforcing the good neighbor regime, would that solve your problem? [00:06:26] Speaker 04: As a conceptual matter, right? [00:06:29] Speaker 01: If EPA had promulgated a complete remedy under the Good Neighbor provision, we wouldn't be here right now. [00:06:35] Speaker 01: If EPA, instead of doing a partial remedy that addressed a single attainment deadline for a single kind of source, and rather than fixing the obligations of one up when state had addressed all of the obligations of the states named in the petition, then we wouldn't be here. [00:06:49] Speaker 01: But that's not the case right now. [00:06:50] Speaker 01: And what we have shown is that the statutory trigger for this provision, that there's significant contributions from upland states that are leading to violations in downland states, continue to be met. [00:07:03] Speaker 01: And if EPA had been more vigorous. [00:07:04] Speaker 01: So that's not enough, right? [00:07:08] Speaker 01: The statute's discretion to EPA and that it uses the word may. [00:07:11] Speaker 01: So there's no question that EPA does have some discretion here. [00:07:16] Speaker 01: But EPA acknowledges that MAY isn't some grant of unfettered authority. [00:07:20] Speaker 01: I mean, it briefs this case as if it sort of can do whatever it wants because of the MAY. [00:07:25] Speaker 01: But the case law is pretty clear that MAY, even though it grants discretion, still subjects an agency's action to judicial review. [00:07:33] Speaker 02: Well, it smacks of prosecutorial discretion. [00:07:37] Speaker 02: The prosecutor can't bring a case unless he's got the evidence to indicate that a crime has been committed, but nevertheless has discretion not to bring the case. [00:07:49] Speaker 02: And we're dealing here with enforcement devices. [00:07:52] Speaker 02: The 126th Petition, the Good Neighbor provision, and even the Transport Region. [00:07:58] Speaker 02: are all enforcement devices to try to get to a particular attainment for whatever the knack is on ozone. [00:08:07] Speaker 02: So why isn't this comparable, at least analogous to the vast amount of literature and cases on prosecutorial discretion? [00:08:16] Speaker 01: Well, there are prosecutorial discretion decisions that are ultimately unreviewable, and that's the chainy line of cases. [00:08:23] Speaker 01: But I would direct this Court to the Supreme Court's decision that actually came out just yesterday in the Weyerhaeuser case. [00:08:29] Speaker 01: And the Court's confirmed that when a statute uses the word may, [00:08:32] Speaker 01: to grant an agency the discretion to take an action or not, that word does not, and I quote, segregate his discretionary decision from judicial review, and the decision will still be overturned if the agency fails to consider the relevant factors. [00:08:45] Speaker 01: And here we have several items that constrain the agency's authority. [00:08:48] Speaker 04: But to say that the action is reviewable is one thing, and they haven't argued to the contrary, but still [00:08:56] Speaker 04: Judge Randolph's point has a lot of force, at least to the extent of suggesting that any review would have to be very highly discretionary. [00:09:07] Speaker 01: Well, there is some level of deference here. [00:09:09] Speaker 01: There's no question. [00:09:10] Speaker 01: But there are really two bounds that do provide standards against to which address their decision. [00:09:15] Speaker 01: And one is the APA, which generally requires reasoned decision making. [00:09:18] Speaker 01: So when the agency provides its stated justifications, which they've done here, we've shown that the stated justifications matter. [00:09:25] Speaker 02: Does the APA apply? [00:09:27] Speaker 01: Yes, the APA does apply. [00:09:28] Speaker 02: Are you sure about that? [00:09:29] Speaker 01: Well, the APA applies to petitions for rulemaking where someone uses the APA's generalized position. [00:09:35] Speaker 02: There was a position in the Clean Air Act that specifically says that the APA does not apply unless otherwise noted. [00:09:43] Speaker 02: And I'm just wondering, I haven't looked this up, so are you familiar with that provision? [00:09:48] Speaker 02: I'm not immediately familiar with that. [00:09:50] Speaker 02: I'll tell you, the Chevron case itself was a case that was decided under a provision in which the APA did not apply. [00:10:03] Speaker 01: Well, I would say that there's consensus between the parties here that the agency needs to rationally articulate the facts and policies underlying its decision, that it needs to display reason and decision making, and that it needs to act consistently with the statute. [00:10:16] Speaker 04: And our point is that... Right, but on your view, this is an APA petition for a rulemaking. [00:10:21] Speaker 01: Well, in our view, this standard for review should actually be tighter here. [00:10:25] Speaker 01: Because rather than some generalized, interested person seeking some random relief, the statute here gives the states a specific procedural right. [00:10:33] Speaker 04: But this is a petition, on your view, this is a petition for a rulemaking under the APA. [00:10:39] Speaker 01: Well, it's a petition for rulemaking under the specific provision of the opinion. [00:10:45] Speaker 04: And that is yet another context in which our review is especially deferential. [00:10:51] Speaker 01: I don't contest that there is deference that's appropriate, but the agency still has an obligation to engage in reasoned decision making consistent with the statute. [00:10:59] Speaker 01: If you go through point by point what the agency has provided here for its reasoning, for example, the existence of these other statutory tools that by themselves have proven not to be sufficiently effective at resolving the problem. [00:11:14] Speaker 01: that if you look at EPA's explanation for why it expects trends to continue, that conspicuously omits its simultaneous actions that are nearly certain to undermine those very trends on which it relies, that the agencies cited, well, of course we want to address this problem, but we have resource constraints. [00:11:30] Speaker 01: But unlike other situations in which resource constraints really can be a legitimate reason, like these [00:11:37] Speaker 01: Wild Earth guardians are defenders of wirelet cases where agencies are articulated with specificity how resource concerns would prevent them from engaging this part of a problem and it was better to focus on the whole solution. [00:11:49] Speaker 01: Here we have a solution that actually requires very few agency resources, if any, to put in place. [00:11:56] Speaker 01: It's provisions of the OTR region tools [00:11:59] Speaker 01: are largely self-executing or state-driven. [00:12:01] Speaker 01: So when EPA says, oh, we don't have the resources to do that, that's a point that's actually refuted by the record and the operation of those tools. [00:12:10] Speaker 01: EPA also relied on this idea that the state needed to submit more information to prove its case, that there were some sort of analytical gaps. [00:12:19] Speaker 01: And not only were the states not fairly on notice of that, but that the states did demonstrate that there were significant ongoing violations downwind because of upwind ozone transport. [00:12:29] Speaker 01: And having made that showing, if EPA believed that some additional sort of cost benefit analysis was necessary to determine what the best way to approach it, whether the ozone transport tools or some other tools, which would be cheaper, it's incumbent on the agency to do that. [00:12:45] Speaker 01: I mean, the states aren't even in a position to be able to have that sort of information about upwind sources and upwind emissions that would enable that sort of analysis. [00:12:54] Speaker 01: that ultimately it's these ozone transport region tools that are ozone-specific, that are the most tailored tool to the ozone problem itself, that they are the fastest and least resource-intensive way of addressing the problem. [00:13:09] Speaker 01: We're not saying that EPA lacked discretion. [00:13:11] Speaker 01: But we're saying that EPA had to grapple with the technical merits of the petition in a way that it didn't. [00:13:16] Speaker 01: And that it had to provide reasoned, rational decision-making for why some choice of other tools or why a reliance on other continuing trends was reasonable and that in this instance it failed to meet that burden. [00:13:29] Speaker 01: In addition, there's the Clean Air Act, which also sets bounds for EPA's discretion. [00:13:34] Speaker 01: That the overarching mandate under which EPA [00:13:38] Speaker 01: EPA manages the Clean Air Act is a responsibility to ensure that states can meet compliance and meet compliance by specified attainment deadlines. [00:13:47] Speaker 01: And EPA failed to acknowledge at all how its use of these tools or the other complementary tools would enable it collectively to be able to meet attainment by the deadlines set forth in the Clean Air Act. [00:13:59] Speaker 01: And so in addition to the problems with EPA's reasoning, you have EPA's failure to grapple with the statute that gives it authority to administer these separate programs. [00:14:07] Speaker 01: At the point of denial, it's undisputed that both New York and Philadelphia, these are regions involving six states and about 25 million people, were measuring violations. [00:14:19] Speaker 01: More recent validated air quality data shows that both New York and Philly are measuring even higher non-attainment levels than anticipated. [00:14:29] Speaker 01: And the modeling on which EPA relied here, the Casper update modeling, [00:14:33] Speaker 01: showed projected continued non-attainment for the largest metropolitan area in the country indefinitely. [00:14:40] Speaker 01: And one last point before I reserve the remainder of time for rebuttal is that one other major factor that EPA failed to consider here was the import of the 2015 NACs. [00:14:51] Speaker 01: Having opened its inquiry up to a variety of non-statutory factors, one critical factor is that EPA has already determined that 75 parts per billion is an insufficient level to protect public health, and that even more and greater regulatory solutions are necessary. [00:15:07] Speaker 01: And this solution is the one most tailored to the ozone. [00:15:09] Speaker 02: Has the Transport Commission weighed in on the issue that you've raised here? [00:15:16] Speaker 01: I don't believe the Transport Commission has directly weighed in. [00:15:20] Speaker 01: But I will say that the Transport Commission is also one other entity that gives this a unique flexibility, that unlike the other solutions, it does allow the states to work collaboratively to promote further approaches to reduce the ozone problem. [00:15:35] Speaker 01: I reserve the remainder of my time for rebuttal. [00:15:37] Speaker 03: Thank you. [00:15:44] Speaker 05: Good morning. [00:15:44] Speaker 05: May it please the Court, Sonia Shea on behalf of EPA. [00:15:48] Speaker 05: With me at Council's table are Daniel Schramm and Stephanie Hogan. [00:15:52] Speaker 05: EPA's denial of the state's petition to expand the ozone transport region should be upheld because the statute provides the agency with discretion, and EPA recently explained its basis for the denial of the petition here. [00:16:04] Speaker 05: The standard of review for the agency's decision not to initiate rulemaking is at the high end of deference. [00:16:11] Speaker 05: All that is required is that EPA explain the facts and policy concerns it relied on and that those facts have some basis in the record. [00:16:20] Speaker 05: EPA met that standard here. [00:16:22] Speaker 03: Do you believe that the State Farm standard applies to the reason decision making here? [00:16:31] Speaker 05: The state farm standard was, I believe, in the context of a rulemaking, whereas here we have a denial of a petition to initiate rulemaking. [00:16:43] Speaker 05: And so, while the APA standard, if that is what your honor is getting at, does apply for the standard of review, the standard of review is even at a higher level of deference when the agency is denying to initiate a rulemaking. [00:16:57] Speaker 03: Well, I guess what I'm trying to get at is the state farm standard that requires there to be essentially a correct assessment of the facts by the agency and that the agency consider all of the important aspects of the problem. [00:17:16] Speaker 03: Does that part of the state farm standard apply to our review of what the EPA did here? [00:17:24] Speaker 05: Well, I think what's more applicable is the standard of review that was articulated in Wild Earth Guardians and in the Defenders of Wildlife cases, where both of those cases spoke directly to the same issue that we have here, where the agency is denying a petition to initiate rulemaking. [00:17:42] Speaker 03: And how do you think that that standard differs from the State Farm standard? [00:17:47] Speaker 05: I would have to go back and look directly at the state farm standard again, but my understanding is that here at EPA did provide the facts in the record as needed to support its risen decision, which it explained, and it also expressed its policy concerns for why it found that expansion of the region at this time was not appropriate. [00:18:11] Speaker 03: I'm not sure if the standards are... Let me tell you what my concern is with the EPA's position. [00:18:17] Speaker 03: Just lay my cards on the table here. [00:18:22] Speaker 03: Throughout the final decision, EPA talks about the fact that we don't need to expand this OTR because we have good neighbor provisions that are being implemented [00:18:40] Speaker 03: And they use words like efficiently, effectively. [00:18:45] Speaker 03: And they talk about the state implementation plans. [00:18:49] Speaker 03: And then if the state implementation plans aren't sufficient, then there can be federal implementation plans. [00:18:55] Speaker 03: And then the kicker is towards the end. [00:18:59] Speaker 03: And this appears at page 51, 248 of the Federal Register in the far right column. [00:19:13] Speaker 03: I'll let you get that in front of you, 51248. [00:19:17] Speaker 03: The far right column, they respond, this is, their comments are saying, but there's lots of problems with inaction, delay, and failure of the EPA to actually implement SIPs in the good neighbor provisions therein. [00:19:43] Speaker 03: And the EPA's response is, well, we appreciate the time and resources needed for the agency and states to take action to address interstate transport obligations. [00:19:57] Speaker 03: And then they say they disagree that expansion of the OTR would be a faster or more efficient way to deal with this problem because addressing the good neighbor obligation [00:20:10] Speaker 03: is required of all states following NOX promulgation. [00:20:15] Speaker 03: And then they say thus, the CAA section 110A2D1I process on its face provides a faster time frame for implementation of interstate transport requirements for a new NOX in application of OTR requirements. [00:20:37] Speaker 03: All of that is predicated on the fact [00:20:40] Speaker 03: is that on the assumption that SIPs would be approved or disapproved within 12 months, which is what the statute requires, and that if a SIP is disapproved, that a FIP would be implemented within two years, as the statute requires. [00:21:00] Speaker 03: The problem is that the EPA never meets those deadlines, and it's replete [00:21:05] Speaker 03: in the record and it was replete in the comments that those deadlines don't get met. [00:21:12] Speaker 03: States have to, parties have to sue to get the EPA to act on SIPs, sue to get the EPA to promulgate FIPs. [00:21:23] Speaker 03: But the EPA doesn't mention any of that. [00:21:26] Speaker 03: I don't see one word of that anywhere in this rule. [00:21:31] Speaker 03: Can you show me anywhere where EPA discusses [00:21:34] Speaker 03: those delays anywhere? [00:21:39] Speaker 05: Well, Your Honor, I'm not sure I have an exact record site, but I do think that EPA does discuss the delay that was encountered with the EME Homer City litigation. [00:21:48] Speaker 03: But that doesn't have anything to do with the EPA's obligation to approve or disapprove a SIP and to promulgate a FIP. [00:21:59] Speaker 03: And the EPA is relying upon that process [00:22:04] Speaker 03: in those deadlines that are part of that process to deny the petition here. [00:22:12] Speaker 03: As if, you know, that process is fine. [00:22:15] Speaker 03: It's efficient. [00:22:16] Speaker 03: It's effective. [00:22:17] Speaker 03: When it's anything but efficient and effective. [00:22:21] Speaker 03: I mean, this seems to me like the EPA, you know, was going past the graveyard here and not accounting for [00:22:32] Speaker 03: as State Farm would say, are not considering an important aspect of the problem. [00:22:39] Speaker 03: I mean, we wouldn't be here if EPA acted in a timely fashion with respect to SIPs, right? [00:22:52] Speaker 05: Well, Your Honor, yes, there has been some delay in EPA's action on SIPs and issuing FIPs, but the CASPER update rule [00:23:02] Speaker 05: that issued the FIPs there was not actually late. [00:23:05] Speaker 05: It was less than two years after the CIP disapprovals in that case. [00:23:10] Speaker 05: And EPA has been working with the Good Neighbor provision for over 20 years to develop... Were the CIPs disapprovals timely? [00:23:23] Speaker 05: Not sure. [00:23:24] Speaker 03: Your colleague is shaking her head no. [00:23:26] Speaker 03: Let the record reflect. [00:23:28] Speaker 03: I'll use my district court training to make that finding. [00:23:36] Speaker 03: I'll allow you to confer with her in case you want to dispute that finding. [00:23:41] Speaker 05: No, I think that's probably accurate. [00:23:43] Speaker 02: Can you tell me, as a practical matter, what the difference is between adding the states to this transport region and simply going ahead with 126 and the good neighbor provision? [00:23:57] Speaker 05: Yes, Your Honor. [00:23:58] Speaker 05: So with 126, it's a more tailored process, as is the Good Neighbor provision, to allow EPA to focus on the pollutants that will most effectively reduce ozone pollution in the areas where those reductions are needed. [00:24:13] Speaker 05: So EPA has consistently found, through its Good Neighbor rulemaking provisions, that oxides of nitrogen are the most effective for reducing ozone transport on a regional scale. [00:24:24] Speaker 05: And the Good Neighbor provision allows for EPA [00:24:27] Speaker 05: to use that targeted method of addressing those emissions and sources of those emissions that can most cost-effectively reduce their emissions. [00:24:36] Speaker 02: So, for example, there's a smelter in Ohio at a steel mill or whatever, and so under the Good Neighbor provision, EPA can concentrate [00:24:50] Speaker 02: on the ozone precursors that are emitted from that particular entity or whatever company or steel mill or whatever. [00:25:00] Speaker 02: Is that what you're saying? [00:25:03] Speaker 05: I believe that yes, EPA can focus on sources. [00:25:07] Speaker 05: I think the process of how EPA does this is a bit complex for each individual source, and the states have some leeway in determining the budgets for each state. [00:25:18] Speaker 02: Technically, yes, EPA can focus on the resources that... Okay, so now, what's the difference if Ohio is put into the OSM transport region? [00:25:31] Speaker 05: So in that case, the state, let's say Ohio, would be subject to all of Section 7511C's mandatory controls, which are primarily targeted at volatile organic compounds and [00:25:45] Speaker 05: as EPA has shown through its rule-makings, over four successful rule-makings that it's had, these volatile organic compounds are more effective at reducing ozone levels locally and in urban areas, whereas oxides of nitrogen are more effective on the regional scale. [00:26:01] Speaker 05: And so all of the state of Ohio would have to apply those controls for resources. [00:26:08] Speaker 02: The VOs that basically control the volatile organic compounds as opposed to nitrogen oxide? [00:26:14] Speaker 05: That's correct, yeah. [00:26:15] Speaker 05: So the volatile organic compound controls that are in section 7511C would apply statewide to all of the major sources of those volatile organic compounds in the state, as well as the implementation of the enhanced vehicle inspection maintenance programs throughout the entire state area where those programs are applicable. [00:26:36] Speaker 02: But Ohio already has to have an inspection and maintenance program, doesn't it? [00:26:40] Speaker 05: they do have an inspection and maintenance program, but not in all of the counties that the expansion would require for them to include. [00:26:48] Speaker 05: And so I believe in their comments, they mentioned that it would cost, I could find, [00:26:59] Speaker 05: But it would cost several million more dollars to expand their enhanced vehicle inspection and maintenance program according to Ohio than what they're already implementing. [00:27:12] Speaker 02: Just on the inspection and maintenance, how does EPA enforce that requirement? [00:27:21] Speaker 05: I'm not exactly sure how EPA enforces it, but I know that it would be a provision that would be implemented through the SIPs that the states would need to submit for the ozone transport region compliance. [00:27:33] Speaker 02: Well, the two ways were, one is to cut off federal highway funds, and the second was for the federal government to take over and promulgate its own implementation plan. [00:27:50] Speaker 05: Yes, so in essence it would be a large expansion of controls primarily for volatile organic compounds which may not be necessary to actually [00:28:02] Speaker 05: reduce the emissions in the region or may not have a very light effect. [00:28:06] Speaker 02: Is that a scientific statement you're making that the transport downwind is basically of nitrogen oxide as opposed to volatile organic compounds? [00:28:21] Speaker 05: Well that's something that EPA has made that conclusion scientifically through each of its four good neighbor rule makings and there are studies that EPA has relied on [00:28:31] Speaker 05: that have backed that up as well, whereas volatile organic compounds can achieve reductions but are more so at the local level than the oxides of nitrogen, which really are more on the regional scale and are the most effective on the regional scale for controlling ozone pollution. [00:28:49] Speaker 03: Good. [00:28:51] Speaker 03: Let me ask you a question about how Section 126 petitions work. [00:28:56] Speaker 03: Sure. [00:28:58] Speaker 03: What is the interaction between the 126 petition and the state implementation plan? [00:29:10] Speaker 03: In other words, does the state implementation plan have to be submitted and then approved or disapproved by the EPA before a 126 petition can be brought? [00:29:28] Speaker 05: Don't believe the timing matters? [00:29:31] Speaker 05: No. [00:29:32] Speaker 05: So a 126 petition could be brought at any time as far as I'm aware. [00:29:38] Speaker 03: So a neighboring state can say there's a problem with a source in an upwind state and file their 126 provision notwithstanding whatever the good neighbor provisions in the state implementation plan say. [00:30:00] Speaker 05: Right, yeah, and then my understanding is that if EPA granted the Section 126 petition, then the state would then amend its SIF to ensure that those controls were being implemented on the source. [00:30:12] Speaker 03: So, if a state implementation plan has been approved for, let's say, Ohio, and it requires a certain set of actions, [00:30:27] Speaker 03: doesn't require other actions. [00:30:31] Speaker 03: And a state within the OTR, let's just say Pennsylvania. [00:30:38] Speaker 03: I think Pennsylvania is within it. [00:30:40] Speaker 03: It is, yes. [00:30:41] Speaker 03: It says, we want Ohio to do X. Is it a defense for Ohio to say, well, our state implementation plan has been approved by the EPA? [00:30:55] Speaker 05: and it did not require us to do X. Well, I think how the merits of the 126 petition would be evaluated would be that EPA would assess whether or not the evidence that Pennsylvania submitted showed that there would be the threshold in Section 126 would be met by that source. [00:31:16] Speaker 05: And so if EPA made that finding, then certainly Ohio would have to do more. [00:31:22] Speaker 04: All right. [00:31:24] Speaker 04: Any other questions? [00:31:26] Speaker 05: So I think in sum, it's really important to look at the entire context of the air transport trend in this case. [00:31:36] Speaker 05: And EPA has had a successful history through its good neighbor rulemakings, through reducing ozone levels, and through the improvements in air quality through other rules. [00:31:49] Speaker 05: Its expectation that that trend was likely to continue is based on actual modeling that EPA conducted out to the year 2025 that shows that we are projecting to see improvements in air quality, even not withstanding the rules that petitioners raised. [00:32:08] Speaker 02: EPA has authority to set up other regional transport systems, whatever. [00:32:15] Speaker 02: Has EPA ever exercised that authority? [00:32:18] Speaker 05: to create other transport regions? [00:32:23] Speaker 05: No. [00:32:26] Speaker 03: So do you disagree that EPA relied upon timely implementation of the state implementation plan provisions of the Clean Air Act as a reason for denying this petition? [00:32:49] Speaker 05: I do disagree with that. [00:32:50] Speaker 05: I think it was more in the context of saying that the ozone transport region would not necessarily be as quick to implement as the Good Neighbor provision, and that EPA was looking at that in the context of the issues that petitioners had raised. [00:33:06] Speaker 05: It was not an independent basis to say we will for sure be more timely. [00:33:10] Speaker 03: The good neighbor provisions that they were talking about were the good neighbor provisions that are in state implementation plans or federal implementation plans if the state implementation plan was deemed inadequate. [00:33:21] Speaker 05: That's right. [00:33:22] Speaker 05: And it's important to note too that Section 7511 C's controls would also be implemented [00:33:27] Speaker 05: through state implementation plans and through that same 110 process of EPA approving the plan or disapproving the plan and possibly eventually issuing FIPs. [00:33:37] Speaker 03: So... So back to my original question. [00:33:43] Speaker 03: EPA relies on that process and says it's effective and it's efficient and that it's working, but EPA doesn't mention at all that [00:33:57] Speaker 03: there are blown deadlines and not just by months but by years and years and years of review of the state implementation plans and of implementation of federal implementation plans in lots of those upwind states. [00:34:17] Speaker 03: EPA just doesn't mention it at all and writes this report as if [00:34:24] Speaker 03: All of that is working fine. [00:34:28] Speaker 05: Well, I think EPA does acknowledge the delays, but ultimately the process is working in the sense that it is creating effective reductions in emissions and it is lowering the levels of air pollution both within and outside of the region. [00:34:47] Speaker 03: All right. [00:34:48] Speaker 03: Well, if there's nothing else, I'll let you conclude. [00:34:52] Speaker 05: Okay, so in some EPA reasons that continued use of the Clean Air Act's other provisions would better address any remaining ozone transport problems in the region, EPA found that the levels of ozone pollution had been trending downward and could be anticipated to continue to do so, and that any remaining problems in the region were few and relatively isolated. [00:35:18] Speaker 05: And in light of the dramatic improvement in air quality, [00:35:20] Speaker 05: and other available mechanisms of addressing the few remaining problems, EPA expressed concern that granting the petition and imposing Section 7511C's controls throughout the upwind states would not be warranted under the circumstances. [00:35:36] Speaker 05: Thus, the agency reasonably decided not to grant the petition, and we respectfully request that this court uphold EPA's decision. [00:35:49] Speaker 03: Did Mr. Frankel have any time left? [00:35:54] Speaker 01: We'll give you two minutes. [00:35:55] Speaker 01: Thank you, Your Honor. [00:35:56] Speaker 01: I'd just like to make a few brief points, really. [00:35:59] Speaker 01: Judge Wilkins, you asked about evidence of delay in the record. [00:36:02] Speaker 01: I would just draw your attention to pages 340 and 341 of the Joint Appendix, where we do reference those delays, as well as we extensively talk about them. [00:36:10] Speaker 01: There are other places in the record. [00:36:11] Speaker 01: We extensively talk about them with citations on pages 14 to 17 and 39 to 44 of our opening brief. [00:36:19] Speaker 01: On the point about timeliness, one of the real advantages of the ozone transport region expansion is that within nine months, newly added states are added and have to include in their SIPs all of these provisions. [00:36:32] Speaker 01: And this is unlike the Good Neighbor provision, where it takes nine years for the EPA to develop modeling and count emissions budgets, and unlike that, it would give immediate relief to the states, and that's a factor that EPA simply failed to give enough consideration to. [00:36:46] Speaker 01: The idea of 126 petitions [00:36:48] Speaker 01: Are they more tailored? [00:36:50] Speaker 01: In theory, they're more tailored. [00:36:52] Speaker 01: But in practice, as we've seen, neither 126 petitions or the Good Neighbor provision actions are sufficient to redress the ongoing harms that petitioning states have suffered under the 2008 NACs for 10 years plus. [00:37:05] Speaker 01: And as we look forward to the 2015 standards, ongoing non-attainment looking forward. [00:37:10] Speaker 01: There's another point. [00:37:12] Speaker 01: Council spoke about VOCs and NOCs and it is clear that NOCs of the two are the larger contributor to interstate ozone transport, but it's also undisputed that both NOCs and VOCs play a role and that reducing VOC emissions would also reduce interstate ozone transport and that the transport [00:37:33] Speaker 01: the transport provisions contain tools addressing both NOx and VOCs. [00:37:39] Speaker 01: There's really nothing on the record to suggest that VOCs would not help the work. [00:37:44] Speaker 02: What's the largest source of nitrogen oxides? [00:37:49] Speaker 01: I don't know the largest source of nitrogen oxides. [00:37:52] Speaker 01: I will say that one thing that the [00:37:59] Speaker 01: that implementation of the transport provision tools would do was it would impose on all major stationary sources in upwind states requirements for reducing NOx emissions. [00:38:11] Speaker 02: And these are sources that... Are they for mobile sources as well? [00:38:14] Speaker 01: I don't believe for mobile sources, for stationary sources. [00:38:17] Speaker 01: And these stationary sources are significant contributors. [00:38:21] Speaker 01: And these are also sources where the downwind states have already implemented a host of regulations. [00:38:26] Speaker 01: For 30 years, the downwind states have lived with these controls. [00:38:29] Speaker 01: They're not unduly onerous or burdensome. [00:38:31] Speaker 01: And also, because we keep missing attainment deadlines, we keep having to oppose even stricter, even more costly controls on downwind sources, while upwind states named in the petition haven't in many instances had to enact some of the most basic controls. [00:38:45] Speaker 01: I would conclude by just saying again that it's already been 10 years after the 2008 ozone nacks. [00:38:55] Speaker 01: The states believe that they're entitled to this remedy and that EPA's conclusions and EPA's justifications don't withstand scrutiny. [00:39:02] Speaker 01: We'd ask the court to vacate the EPA's decision. [00:39:05] Speaker 03: Thank you.