USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 1 of 22 IN THE FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 12-1238 CENTER FOR BIOLOGICAL DIVERSITY, et al., v. Petitioners, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents. On Petition for Review of Final Action of the United States Environmental Protection Agency RESPONSE OF INTERVENOR-RESPONDENTS UTILITY AIR REGULATORY GROUP AND AMERICAN PETROLEUM INSTITUTE OPPOSING PETITION FOR PANEL REHEARING Andrea Bear Field Lucinda Minton Langworthy Aaron M. Flynn HUNTON & WILLIAMS LLP 2200 Pennsylvania Avenue, N.W. Washington, D.C. 20037 (202) 955-1500 Dated: November 14, 2014 Counsel for Intervenor-Respondents Utility Air Regulatory Group and American Petroleum Institute
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 2 of 22 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION... 1 BACKGROUND... 1 ARGUMENT... 5 I. The Petition for Panel Rehearing Is Untimely.... 6 II. EPA s Post-Decisional Reasons for Suspending the Field Pilot Program Do Not Invalidate the Lawfulness of the Final Rule.... 7 III. Neither EPA s Final Rule Nor the Panel s Decision Relies on the Existence of the Field Pilot Program.... 9 IV. EPA s Decision To Suspend the Field Pilot Program Is Not Reviewable.... 14 CONCLUSION... 15 - i -
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 3 of 22 TABLE OF AUTHORITIES FEDERAL CASES Amoco Oil Co. v. EPA, 501 F.2d 722 (D.C. Cir. 1974)... 7 *Camp v. Pitts, 411 U.S. 138 (1973)... 7 Cnty. of Los Angeles v. Shalala, 192 F.3d 1005 (D.C. Cir. 1999)... 9 *Ctr. for Biological Diversity v. EPA, 749 F.3d 1079 (D.C. Cir. 2014)... 1, 10, 11, 12, 13 Fisher v. Immigration & Naturalization Serv., 79 F.3d 955 (9th Cir. 1996)... 8 Heckler v. Chaney, 470 U.S. 821 (1985)... 14 *Massachusetts v. EPA, 549 U.S. 497 (2007)... 12, 13 Motor & Equip. Mfrs. Ass n. Inc. v. EPA, 627 F.2d 1095 (D.C. Cir. 1979)... 8 *Lincoln v. Vigil, 508 U.S. 182 (1993)... 15 Natural Res. Def. Council v. SEC, 606 F.2d 1031 (D.C. Cir. 1979)... 15 Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981)... 7 * Authorities upon which we chiefly rely are marked with asterisks. - ii -
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 4 of 22 Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014)... 13 Wash. Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991)... 8 WWHT, Inc. v. FCC, 656 F.2d 807 (D.C. Cir. 1981)... 15 Clean Air Act, 42 U.S.C. 7401 et seq. FEDERAL STATUTES 42 U.S.C. 7408(a)(2)... 12 42 U.S.C. 7409(b)(2)... 2 42 U.S.C. 7409(d)... 12 42 U.S.C. 7607(d)(1)(A)... 7 42 U.S.C. 7607(d)(7)(A)... 7 FEDERAL RULES D.C. Cir. R. 27(h)(1)... 6 D.C. Cir. R. 27(h)(4)... 6 Fed. R. App. P. 40(a)(2)... 1, 6 Fed. R. Evid. 201(a)... 9 FEDERAL REGISTER *77 Fed. Reg. 20,218 (Apr. 3, 2012)... 1, 2, 3, 10, 12 - iii -
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 5 of 22 GLOSSARY OF ABBREVIATIONS AND ACRONYMS AAI Agency ambient standards CAA Aquatic Acidification Index U.S. Environmental Protection Agency National Ambient Air Quality Standards Clean Air Act CBD Center for Biological Diversity v. EPA, 749 F.3d 1079 (D.C. Cir. 2014) EPA Final Rule Intervenors JA McCabe Decl. NOx U.S. Environmental Protection Agency EPA, Secondary National Ambient Air Quality Standards for Oxides of Nitrogen and Sulfur; Final Rule, published at 77 Fed. Reg. 20,218 (Apr. 3, 2012) Utility Air Regulatory Group and American Petroleum Institute Joint Appendix Declaration of Janet McCabe, EPA s Acting Assistant Administrator for the Office of Air and Radiation, Oct. 6, 2014 Oxides of Nitrogen Pet. for Reh g Petition for Rehearing, Oct. 7, 2014 SOx Oxides of Sulfur - iv -
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 6 of 22 INTRODUCTION This Court properly determined that the Environmental Protection Agency ( EPA or Agency ) had an adequate scientific basis for deciding not to revise the secondary national ambient air quality standards ( ambient standards ) for oxides of nitrogen ( NOx ) and oxides of sulfur ( SOx ). Ctr. for Biological Diversity v. EPA, 749 F.3d 1079 (D.C. Cir. 2014) ( CBD ). Petitioners request for panel rehearing of that decision fails to show that the panel overlooked or misapprehended any point of law or fact. Fed. R. App. P. 40(a)(2). Thus, Intervenor-Respondents Utility Air Regulatory Group and the American Petroleum Institute ( Intervenors ) respectfully request that this Court deny the pending petition for panel rehearing ( Pet. for Reh g ). BACKGROUND The panel s opinion addressed EPA s 2012 decision not to revise the secondary ambient standards for NOx and SOx. 77 Fed. Reg. 20,218 (Apr. 3, 2012) ( Final Rule ), JA0078-132. In that Final Rule, the EPA Administrator determined that the existing secondary ambient standards for NOx and SOx, while adequate to protect against direct phytotoxic effects on vegetation, were not capable of preventing all adverse effects to ecosystems that result from acidifying deposition of NOx and SOx. Id. at 20,241, JA0101. Despite five years of intensive effort to develop an entirely new type of ambient standard that might -1-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 7 of 22 address these ecosystem effects a standard EPA calls the Aquatic Acidification Index ( AAI ) the Administrator was nevertheless forced to conclude that the scientific record before her did not support the establishment of such a standard. Indeed, the Administrator determined that the complexity in the structure of an AAI-based standard presented a unique challenge because the very nature of some of the uncertainties is fundamentally different than uncertainties that have been relevant in other [ambient standard] reviews. Id. at 20,261, JA0121. Those uncertainties were so significant, the Administrator found, that she could not account for them by adjusting the level of the standard because neither the direction nor the magnitude of change from the target level and percentile that would otherwise be chosen can reasonably be ascertained at this time. Id. at 20,262, JA0122. As a result, EPA could not identify a secondary standard that would satisfy the Clean Air Act s ( CAA ) requirement that an ambient standard be requisite to protect the public welfare, and the Agency instead determined that it was appropriate to retain the existing standards without imposing additional regulatory requirements. 42 U.S.C. 7409(b)(2). The Administrator recognized, however, that the new health-protective primary standards for NOx and SOx would also result in reductions in oxides of nitrogen and sulfur that will directionally benefit the environment by reducing NO[x] and SOx deposition to sensitive ecosystems. 77 Fed. Reg. at 20,252, JA0112. -2-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 8 of 22 In addition to its rulemaking on the secondary ambient standard, EPA in the Final Rule described a field pilot program. The Agency intended that program to further evaluate questions and uncertainties identified during the development of the AAI. Id. at 20,264, JA0124. The Final Rule described only EPA s current ideas about what could be incorporated into the pilot program and noted that EPA has not made any final decisions on what will be included. Id. The ideas EPA described in the Final Rule, however, involve a variety of matters, some of which go to the most basic scientific issues related to an AAI type of standard intended to address ecosystem impacts, such as evaluation of NOx and SOx measurement methods, examination of regional variability in responsiveness to NOx and SOx deposition, and development of region-specific factors for use in the AAI equation, as well as providing support for longer-term research. Id. To achieve these ends, EPA suggested a program potentially starting in late 2012 and extending through 2018, that would collect data at three to five acid-sensitive sites. Id. Consistent with the intentions stated in the Final Rule, as explained in a letter and an accompanying Declaration of Janet McCabe, EPA s Acting Assistant Administrator for the Office of Air and Radiation ( McCabe Decl. ), filed with this Court on October 6, 2014, EPA quickly began the process of setting up the field pilot program, designing site selection and monitoring placement criteria and developing detailed budgeting plans. McCabe Decl. at 2. In addition to staff -3-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 9 of 22 resources, EPA spent over $300,000 on field pilot program implementation in 2012. Id. Petitioners sought review in this Court challenging EPA s Final Rule on June 1, 2012. Petitioners argued that, notwithstanding the Agency s views on the adequacy of the scientific record, EPA was obligated to revise the secondary ambient standards for NOx and SOx because the Agency had determined the existing secondary ambient standards did not provide sufficient protection from ecosystem acidification. EPA argued that the record and the substantial scientific uncertainties, in particular justified its decision to refrain from revising the secondary ambient standards. In addition, arguing in support of EPA s Final Rule, Intervenors explained that the CAA prohibited a secondary ambient standard with the features of the AAI. On May 27, 2014, this Court issued an opinion upholding EPA s decision to retain the existing secondary ambient standards for NOx and SOx. On July 3, 2014, Petitioners filed a motion seeking an extension of the deadline for filing a petition for rehearing of the panel s decision. Petitioners stated that they wished to consider EPA s response to a Freedom of Information Act request regarding the status of the field pilot program before filing any petition for rehearing. This Court granted that request July 8, 2014. On August 5, 2014, Petitioners and EPA filed a joint motion seeking a second extension of the filing -4-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 10 of 22 deadline, which was granted on August 8, 2014. On September 15, 2014, Petitioners and EPA sought a third extension. This Court denied that request on September 30, 2014. Afterwards, on October 6, 2014, EPA filed its letter and the McCabe Declaration explaining the status of the field pilot program. The McCabe Declaration states that, after the initial progress in implementing the field pilot program in 2012 and after including funding necessary to carry out the field pilot program in its 2013 budget, EPA determined that it could not continue the program during fiscal year 2013 due to previously unforeseeable budgetary constraints resulting, at least in part, from the budget sequestration imposed by the Budget Control Act of 2011. Id. at 2. In the meantime, as the Declaration explains, EPA has begun the CAA-mandated five-year review of the secondary ambient standards for NOx and SOx and is in the process of assessing the current state of the science related to acidifying deposition tied to these pollutants. Id. at 3. On October 7, 2014, Petitioners filed a petition for panel rehearing arguing that continued implementation of the field pilot program is an essential element of EPA s Final Rule. ARGUMENT Petitioners provide no basis for panel rehearing. The petition is untimely and should be dismissed for that reason alone. Moreover, Petitioners fail to identify any point of law or fact that this Court overlooked or misapprehended in -5-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 11 of 22 its panel decision. Fed. R. App. P. 40(a)(2). Petitioners arguments improperly rely on non-record material, are based on a fundamental misunderstanding of the panel s decision and the CAA s requirements, and seek to involve the Court in budgetary decisions that are committed to agency discretion. The petition should be denied. I. The Petition for Panel Rehearing Is Untimely. Petitioners claim that their petition is timely pursuant to Circuit Rule 27(h)(4). Pet. for Reh g at 1 n.1. Circuit Rule 27(h)(4) states that a motion filed in accordance with the requirements of subparagraphs (1) and (2) of Circuit Rule 27(h) qualifies for an automatic extension when a court does not act on a motion for an extension of time prior to the end of the second business day before the otherwise applicable filing deadline. Circuit Rule 27(h)(1), however, states that the rule applies only to motions, responses, and replies. A petition for panel rehearing is not one of these items and is not, therefore, covered by the automatic extension provision of Circuit Rule 27(h)(4). The last applicable filing deadline specified by this Court for petitions for rehearing was September 25, 2014. Petitioners should have filed their petition for rehearing by that date. Because the petition for rehearing was filed after the deadline, the Court should reject it. -6-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 12 of 22 II. EPA s Post-Decisional Reasons for Suspending the Field Pilot Program Do Not Invalidate the Lawfulness of the Final Rule. This is a record review case. It is a bedrock principle of administrative law that agency actions are reviewed based on the administrative record already in existence, not some new record made initially in the reviewing court. Camp v. Pitts, 411 U.S. 138, 142 (1973). That principle has even greater force in a challenge to an EPA rulemaking regarding the potential revision of an ambient standard, because Congress has directed that the record for judicial review in such matters shall consist exclusively of specified material in the rulemaking docket. 42 U.S.C. 7607(d)(1)(A), (7)(A) (emphasis added). That provision strictly define[s] what constitutes the rulemaking record, and judicial review must be based on that record except in the most unusual circumstances.... Sierra Club v. Costle, 657 F.2d 298, 390 n.450 (D.C. Cir. 1981). Contrary to that bedrock principle, the petition for rehearing is based exclusively on non-record material. Indeed, these materials could not have been a part of the record because they did not exist at the time of the final administrative action at issue in this case. Petitioners cite three cases in an attempt to support their assertion that the Court should reconsider its decision based on non-record material. None of them justify that action. Amoco Oil Co. v. EPA involved a motion to supplement the administrative record. 501 F.2d 722, 729 n.10 (D.C. Cir. 1974). No such motion has been filed here. Likewise, the decision in Amoco predates the enactment of -7-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 13 of 22 CAA 307, and that enactment renders the Amoco decision inapplicable to this case. Moreover, in Amoco, this Court granted a motion to supplement the record because material contained in post-decision testimony related to the truth or falsity of agency predictions that were central to that agency s final rule. Id. As explained in greater detail below, the field pilot program was, at most, peripheral to EPA s decision not to revise the secondary standards for NOx and SOx. Similarly irrelevant is Motor and Equipment Manufacturers Association, Inc. v. EPA, where this Court took judicial notice of a change in state regulations that occurred after an EPA regulatory decision and that potentially mooted some of the petitioners claims. 627 F.2d 1095, 1104 n.18 (D.C. Cir. 1979). The decision offers no support to Petitioners here. Finally, Petitioners cannot use Washington Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991), to justify their reliance on non-record materials. Washington Post, which Petitioners cite for the principle that courts may take judicial notice of facts that are generally known as a result of newspaper articles, was not an administrative record case. Id. at 291-92. Judicial notice cannot be used to circumvent the rules applicable to administrative law cases. E.g., Fisher v. Immigration & Naturalization Serv., 79 F.3d 955, 963 (9th Cir. 1996) (en banc) (Courts are not authorized to take judicial notice of information not part of the administrative record when reviewing an agency decision on the merits.). -8-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 14 of 22 Moreover, Federal Rule of Evidence 201 provides that judicial notice applies only to the recognition of adjudicative facts. In a record review case such as this one, there are no adjudicative facts. See Cnty. of Los Angeles v. Shalala, 192 F.3d 1005, 1011 (D.C. Cir. 1999) (recognizing that when agency action is challenged, courts typically do not resolve factual issues). In summary, Petitioners provide no valid reason or authority for this Court to deviate from the statutory specification that review is limited to the record before the agency. Accordingly, the petition for rehearing should be denied. III. Neither EPA s Final Rule Nor the Panel s Decision Relies on the Existence of the Field Pilot Program. There is no basis for Petitioners claim that EPA s decision to suspend the field pilot program renders its Final Rule unlawful. See Pet. for Reh g at 7. Neither the Final Rule nor the panel s decision is premised on EPA carrying out that program. As noted above, EPA s decision not to revise the secondary ambient standards for NOx and SOx was based on EPA s inability, due to scientific uncertainty, to identify an appropriate standard to address ecosystem acidification. Nothing in the Final Rule suggests that EPA would have reached a different conclusion on whether to revise the ambient standards if the field pilot program had then appeared to be an unavailable course of action. Quite the opposite, the Final Rule makes clear that EPA viewed the field pilot program as a related, but discrete, issue. The Final Rule, for instance, does not establish the program; it only -9-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 15 of 22 describes EPA s current ideas about what the field pilot program might do and explains that EPA intended to later publish a draft white paper presenting detailed plans for the program; take public comment on the plans; and, taking those comments into account, prepare a final white paper that will serve as a program management and communication document to facilitate engagement with interested stakeholders and convey the EPA s final plans. 77 Fed. Reg. at 20,264, JA0124. All of these statements confirm that the EPA did not view the field pilot program as an integral part of its decision on the secondary ambient standards. It was instead a complementary and wholly voluntary action. 1 Although the panel s decision reflects that this Court fully understood that the field pilot program was ancillary to EPA s decision not to revise the ambient standards for NOx and SOx, Petitioners now argue that the panel [i]n upholding EPA s action,... expressly relied on the agency s plan to implement th[e] pilot study. Pet. for Reh g at 1 (citing CBD, 749 F.3d at 1089-90). They emphasize this Court s statements that EPA must address the known or anticipated harms 1 Indeed, the Final Rule acknowledges that the field pilot program would not have been adequate to address all of the uncertainties associated with an AAIbased standard. Id. at 20,268, JA0128 ( The EPA largely agrees that the scope of the field pilot program is not adequate to address many of the issues raised by the commenters.... ). If EPA had an obligation to conduct research sufficient to permit future ambient standard revision when it cited scientific uncertainty as a basis for not making a revision which it does not the field pilot program would not have satisfied that requirement. -10-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 16 of 22 associated with criteria air pollutants, and that [w]e cannot say, under deferential Massachusetts review, that targeted data collection is not a valid step toward that end. Id. at 7 (citation omitted). There are at least two flaws with Petitioners argument. First, it ignores the bulk of the Court s analysis. Significant portions of the Court s opinion are devoted to summarizing EPA s uncertainty-based rationale for concluding that the science did not support revising the secondary standards. Relying on that rationale, the Court concluded: [i]n light of the deference due EPA s scientific judgment, it is clear that its judgment must be sustained here. CBD, 749 F.3d at 1089. Indeed, in the paragraphs immediately following the text Petitioners cite, the panel states its reason for upholding EPA s Final Rule: [A]t some point, action infected by enough uncertainty cannot be called reasoned. Distinguishing among these degrees is emphatically the province of EPA. See cases cited supra. Here, EPA explained at length that the uncertainty it faced was unusually profound. Across the Aquatic Acidification Index model, data gaps were of such a significant nature and degree that any rule promulgated would not have been based on reasoned judgment.... Petitioners question that conclusion, but as between petitioners critique and EPA s scientific analysis, EPA s judgment prevails. Because the Act requires a reasoned judgment, and because EPA found it could not form one, EPA s explanation conform[ed] to the authorizing statute. -11-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 17 of 22 Id. at 1090-91 (alteration in original) (footnote omitted) (citing 77 Fed. Reg. at 20,256; Massachusetts, 549 U.S. 497, 533 (2007)). The presence of the field pilot program had no bearing on EPA s reasoning or the Court s holding. Second, Petitioners argument equates the Court s stamp of approval for the field pilot program with a finding that it was statutorily compelled in light of the decision not to revise the ambient standards. There is no such requirement in the CAA. On the contrary, the carefully designed ambient standard program instead requires five-year reviews of the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in the ambient air, in varying quantities. 42 U.S.C. 7408(a)(2); see also id. 7409(d). If new scientific information warranting a change in the ambient standard for a pollutant has become available, then the Administrator is obliged to revise the standard. Id. 7409(d). As Petitioners acknowledge, such a review is precisely what EPA is doing now. Pet. for Reh g at 7. There is, on the other hand, no requirement that the Administrator, upon finding an ambient standard revision is not appropriate, undertake her own course of scientific research in an effort to support a possible future revision. Indeed, the Petitioners have pointed to no other instance in which the Administrator has taken such action. -12-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 18 of 22 As recently stated by the Supreme Court, Massachusetts v. EPA stands for the proposition that EPA must ground its reasons for action or inaction in the statute. Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2441 (2014) (emphasis added in original) (quoting Massachusetts v. EPA, 549 U.S. at 535). And as noted above, in CBD, this Court found that EPA s uncertainty-based rationale for declining to revise the ambient standards conform[ed] to the authorizing statute. CBD, 749 F.3d at 1090-91 (alteration in original) (quoting Massachusetts v. EPA, 549 U.S. at 533). Accordingly, because scientific uncertainty was an adequate reason for refraining from revising the secondary ambient standards for NOx and SOx, the suspension of the field pilot program has no bearing on the validity of EPA s Final Rule. Finally, Petitioners suggest that EPA s brief relied heavily on the existence of the field pilot program. Pet. for Reh g at 5. The pages of Respondents brief that Petitioners cite, however, state only that EPA decided to establish a field pilot program. See Resp t Br. at 1, 17, 20, and 47. They say nothing at all about its importance and certainly do not suggest that the validity of EPA s decision not to revise the ambient standards somehow rests on the program s implementation. For all of these reasons, the petition should be denied. -13-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 19 of 22 IV. EPA s Decision To Suspend the Field Pilot Program Is Not Reviewable. This is not a case where Congress has directed EPA to take a particular action or to act by a specified date. This case involves the wholly voluntary decision by EPA to undertake a limited research program and to then suspend that program when competing priorities demanded that the Agency choose which of its activities to fund. Such decisions are not subject to judicial review. Heckler v. Chaney, 470 U.S. 821, 830 (1985) (Agency action is unreviewable when there is no meaningful standard against which to judge the agency s exercise of discretion. ). EPA s decision to suspend the field pilot program was rational given the circumstance the Agency faced. As explained in the McCabe Declaration, EPA began full implementation of the field pilot program in 2012, consistent with the plans stated in the Final Rule. McCabe Decl. at 2. When faced with a sudden and substantial change in the Agency s budget, however, EPA determined that it was appropriate to suspend the field pilot program. Id. Petitioners acknowledge all of these facts. See Pet. for Reh g at 2 & n.3. They even quote an EPA statement explaining that the Agency is now considering whether it should continue with the field pilot program or if the need for the program is obviated by the new review of the secondary standards for NOx and SOx and the independent scientific research conducted since the last review. Id. at 2. Nevertheless, the petition for rehearing -14-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 20 of 22 rests on the suggestion that the agency could have continued to fund the pilot study if it so chose and that it presumably should have made different budgetary decisions to preserve the field pilot program. See id. at 2 n.3. How agencies allocate limited funds appropriated to them has long been recognized as a matter that is committed to agency discretion by law and not subject to judicial review. E.g., Lincoln v. Vigil, 508 U.S. 182, 192 (1993) ( The allocation of funds from a lump-sum appropriation is another administrative decision traditionally regarded as committed to agency discretion. ); WWHT, Inc. v. FCC, 656 F.2d 807, 817-18 (D.C. Cir. 1981) (considerations of budget and personnel allocation and the balancing of competing policies are not subject to judicial review); Natural Res. Def. Council v. SEC, 606 F.2d 1031, 1046 (D.C. Cir. 1979) (decisions not to regulate are committed to agency discretion). The petition for rehearing, in essence, asks this Court to revisit EPA s funding choices and penalize the Agency for failing to prioritize the field pilot program differently. The Court should refuse to step into that thicket and deny the petition for rehearing. CONCLUSION For the foregoing reasons, Intervenors respectfully request that this Court deny Petitioners petition for rehearing. -15-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 21 of 22 Respectfully submitted, /s/ Lucinda Minton Langworthy Andrea Bear Field Lucinda Minton Langworthy Aaron M. Flynn HUNTON & WILLIAMS LLP 2200 Pennsylvania Avenue, N.W. Washington, D.C. 20037 (202) 955-1500 Dated: November 14, 2014 Counsel for the Utility Air Regulatory Group and the American Petroleum Institute -16-
USCA Case #12-1238 Document #1522458 Filed: 11/14/2014 Page 22 of 22 CERTIFICATE OF SERVICE I hereby certify that on this 14th day of November, 2014, the foregoing document was served electronically through the Court s CM/ECF system on all registered counsel. /s/ Lucinda Minton Langworthy Lucinda Minton Langworthy