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Kansas v. Environmental Protection Agency

ELR Citation: 46 ELR 20077
Nos. No. 14-1268, (D.C. Cir., 04/15/2016)

The D.C. Circuit, in an unpublished opinion, dismissed a petition challenging an EPA computer model that states must use to estimate motor vehicle emissions when developing their strategies to comply with the CAA. Kansas and Nebraska, as well as two nonprofit organizations, alleged that the model is a legislative rule promulgated without notice and comment in violation of the APA. They also allege that the model incorporates erroneous assumptions about the vehicle emissions resulting from ethanol in fuel. But the petitioners lack standing. Kansas and Nebraska maintain that they will soon be in nonattainment for ozone and therefore will be need to develop a SIP, which will require them to use the model. But their "general averments" and "conclusory allegations" of possible nonattainment are insufficient for standing purposes. Kansas and Nebraska also claim that because neighboring states will use the model, those states will limit ethanol blending in their fuels. This, in turn, may increase emissions of harmful pollutants and damage the health and welfare of the citizens of Kansas and Nebraska. Again, this is too speculative for purposes of establishing standing. And because the nonprofit petitioners offered no argument or evidence as to why they independently possess standing, the court dismissed the petition for lack of jurisdiction.