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Sierra Club v. Environmental Protection Agency

ELR Citation: 44 ELR 20133
Nos. 13-1014, (D.C. Cir., 06/13/2014)

The D.C. Circuit held that environmental groups lacked standing to challenge an EPA memo issued to regional directors in response to an earlier court decision vacating the Agency's 2011 Cross-State Air Pollution Rule (the "transport rule"), which sets sulfur dioxide and nitrogen oxides emissions limits for 28 upwind states based on those states' contributions to downwind states' air quality problems. In that case, EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 42 ELR 20177 (D.C. Cir. 2012), the court invalidated the rule and instructed EPA to continue implementing the Clean Air Interstate Rule (CAIR), which the transport rule was intended to replace since it too had been struck down. In response to the court's decision, the memo directed regional directors to proceed with pending state redesignation requests and SIP actions that relied on emissions reductions from CAIR. Environmental groups petitioned for review, arguing that the memo should be struck down on procedural and substantive grounds. Nevertheless, the case was dismissed because the groups failed to demonstrate injury-in-fact. The groups failed to show how any of their members were suffering from an actual or imminent injury, and they offered no evidence to suggest that CAIR-based emissions reductions will be fleeting or that a replacement program will result in increased emissions. They argued that the memo has denied them the protection of "permanent and enforceable" emission reductions "guaranteed" by the CAA, but their reliance on guarantees of "permanent" emissions reductions is tantamount to "an abstract, and uncognizable, interest in seeing the law enforced." Notably, the U.S. Supreme Court recently reversed the vacatur of the transport rule in EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 44 ELR 20094 (2014). But because EPA has not yet determined whether it will continue to rely on CAIR, the case was not moot.