Earlier this month, the District of Columbia Court of Appeals vacated most of EPA's startup, shutdown, and malfunction SIP Call. The Court's rationale boils down to EPA's failure to make a predicate finding that the SIP call was "necessary or appropriate to meet the [CAA's] applicable requirements." Without plumbing the depths of the Clean Air Act's intricacies, it will give some sense of the nuances of the Act that the Court reached this decision while at the same time rejecting the Petitioners' argument that EPA:
must make factual findings about adverse effects resulting from the SIP's deficiencies—for example, by identifying instances in which the SSM provisions at issue prevented or will prevent attainment of the national ambient air quality standards (NAAQS).
Navigating the distinction between what EPA need not do – make specific factual findings about the harm caused by SIPs containing SSM exemptions or defenses – and what it must do – i.e., include "emissions limitations" in a SIP only upon a finding that it is necessary or appropriate to meet the [CAA's applicability requirements" – is what keeps Clean Air Act lawyers employed.
Aside from reminding readers of the subtleties involved in CAA interpretation, it's also worth noting here that, while the Court vacated most of EPA's SIP Call, it left open the possibility that EPA could resuscitate it:
If EPA in the future were to determine that, for states to meet the CAA's applicable requirements, it is "necessary or appropriate" for their emission reduction measures to meet the statutory definition of "emission limitations" and operate during SSM periods, the agency could explain and implement that rationale and its action would be subject to judicial review. Here, however, the agency merely reasoned that every emission restriction in a SIP needs to be continuous to qualify as an "emission limitation" per the statutory definition, without explaining why that continuity is "necessary or appropriate" to meet any of the CAA's requirements (beyond the definition itself). That rationale cannot be sustained.
It will be interesting to see whether EPA takes up the Court's invitation. There are definitely environmental and public health NGOs who will want EPA to do so. My guess is that EPA will delay a decision on that question until after the 2024 elections, but my guesses have been wrong before. Stay tuned on this one.
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