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EPA seeks dismissal of 'back-door' attempt to force scrutiny of CSAPR petitions


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EPA seeks dismissal of 'back-door' attempt to force scrutiny of CSAPR petitions

The U.S. Environmental Protection Agency has asked a federal appeals court to dismiss an attempt by several states to bring under court purview an as-yet nonexistent administrative action related to a 2016 update of the Cross-State Air Pollution Rule.

Promulgated under the Obama administration, the CSAPR update required nitrogen oxide emissions cuts for 22 eastern states. Officials in Wisconsin, Alabama, Arkansas, Ohio and Wyoming filed suit against the EPA in November 2016, suggesting that the update improperly relied on generation shifting and failed to properly account for changes in ozone pollution that may drift over from other countries.

The U.S. Court of Appeals for the District of Columbia Circuit on Aug. 10 suspended the briefing schedule in the case, and the EPA said the following day that it generally does not oppose the move. But the agency pushed back against the petitioners' request for regular updates on its progress in reviewing petitions for reconsideration of the rule, noting that those petitions were filed outside of the court challenge.

"EPA has not granted any petitions for reconsideration of the CSAPR update, so no administrative reconsideration proceeding is currently underway," the agency said in its response to the briefing suspension. "Movants' request that EPA be ordered to report to the court its progress towards completing administrative activities impermissibly seeks to subject those activities to judicial oversight."

If the EPA chooses to initiate an administrative proceeding to explore the petitions for reconsideration, it first must conclude that one or more of those petitions warranted further review. It then would need to conduct a reconsideration proceeding that includes a notice and comment opportunity for the public.

Any claim that the EPA has not responded to the petitions for reconsideration is a matter to be considered outside this current legal action and can only be filed after a proper notice of intent to bring such a legal challenge, the EPA said.

"Movants should not be allowed to use a unilateral motion for extension of time as a back-door means of inviting judicial supervision, and coercing agency action, on administrative matters where they have no claim before this court that the relevant administrative actions are overdue," the EPA said. Therefore, the agency asked that the court deny the motion for status updates related to the petitions for reconsideration.

The agency also asked the court to be mindful of the Christmas holidays when resetting the briefing schedule. Petitioners sought to extend the deadline for filing briefs to Dec. 19, but the EPA instead asked that it be pushed back to April 10, 2018.

The case is State of Wisconsin et al. v. U.S. EPA, (No. 16-1406).