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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