On April 15, 2016, the United States Court of Appeals for the District of Columbia dismissed a challenge brought by Kansas and Nebraska to EPA's new vehicle emissions model, "MOVES2014." State of Kansas et al. v. EPA et al., No. 14-1268. The model notably discourages the use of ethanol in gasoline, concluding that it leads to higher fuel emissions.

Kansas and Nebraska, two of the nation's largest corn-producing states, brought a lawsuit to overturn the model. The lawsuit alleged that EPA relied on flawed data in reaching its conclusions concerning ethanol. The states alleged potential injury in the form of future ozone nonattainment area designations, which would require the states to limit the use of ethanol in fuel as part of compliant State Implementation Plans ("SIPs"). The states also alleged "secondary injury" under the theory that other nonattainment states will use MOVES2014 and decrease their ethanol use as well. Finally, the states claimed that EPA issued the model without the required notice and comment.

EPA argued that the D.C. Circuit should dismiss the case on several grounds. First, EPA asserted that MOVES2014 is a policy statement that is an exercise of the agency's scientific judgment and expertise, and not a final agency action. According to EPA, it was therefore not required to submit the model for notice and comment, and the court lacked jurisdiction over the states' challenge.

EPA further argued that the states lacked standing because their claims were wholly dependent on speculation about the Agency's future conduct. EPA pointed out that states currently are not obligated to use the model, and that the appropriate time for states to raise objections would be if and when they are required to use the model in future SIPs.

In dismissing the states' lawsuit, the D.C. Circuit agreed with EPA that the states lacked standing. The court found that EPA presented sufficient evidence to establish that the data necessary to determine if the states will be required to develop future SIPs in response to nonattainment area designations does not yet exist. The Agency plans to use data collected from 2014 through 2016; currently, however, only 2014 data is available, and that data shows that Kansas's and Nebraska's ozone levels are in attainment. The court also rejected the states' secondary injury claims, finding the claims to be too speculative and lacking in evidence to survive summary judgment.

Despite the outcome in this case, given the vigorous opposition to MOVES2014 by corn-producing states, ethanol groups, and other clean energy groups, the issue is likely to reemerge if EPA requires states to use the model and decrease ethanol use in future SIPs.

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