USCA Case #21-1028 Document #1920265 Filed: 10/29/2021 Page 1 of 12
`ORAL ARGUMENT NOT YET SCHEDULED
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`No. 21-1028
`and consolidated cases
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`UNITED STATES COURT OF APPEALS
`DISTRICT OF COLUMBIA CIRCUIT
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`____________________________________
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`STATE OF NEW YORK,
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`et al.,
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`Petitioners,
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`v.
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`ENVIRONMENTAL PROTECTION
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`AGENCY, et al.,
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`Respondents.
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`____________________________________)
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`MOTION TO HOLD IN ABEYANCE
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`Petitioners seek judicial review of an action titled “Review of the Ozone
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`National Ambient Air Quality Standards,” 85 Fed. Reg. 87,256 (Dec. 31, 2020)
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`(“2020 Ozone NAAQS Decision”). Pursuant to this Court’s September 27, 2021,
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`order, and certain previous orders, these cases have been held in abeyance with a
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`deadline to file motions to govern on October 29, 2021. Respondents United
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`States Environmental Protection Agency, et al. (“EPA”) have now determined that
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`EPA will be reconsidering the 2020 Ozone NAAQS Decision, with the intention of
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`completing the reconsideration by the end of 2023. EPA therefore respectfully
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`moves that the Court hold these consolidated cases in abeyance until December 15,
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`ORAL ARGUMENT NOT YET SCHEDULED
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`No. 21-1028
`and consolidated cases
`
`UNITED STATES COURT OF APPEALS
`DISTRICT OF COLUMBIA CIRCUIT
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`____________________________________
`
`
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`
`)
`STATE OF NEW YORK,
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`)
`et al.,
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`)
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`
`)
`Petitioners,
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`)
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`)
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`v.
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`)
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`ENVIRONMENTAL PROTECTION
`)
`AGENCY, et al.,
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`)
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`
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`)
`Respondents.
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`)
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`____________________________________)
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`MOTION TO HOLD IN ABEYANCE
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`Petitioners seek judicial review of an action titled “Review of the Ozone
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`National Ambient Air Quality Standards,” 85 Fed. Reg. 87,256 (Dec. 31, 2020)
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`(“2020 Ozone NAAQS Decision”). Pursuant to this Court’s September 27, 2021,
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`order, and certain previous orders, these cases have been held in abeyance with a
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`deadline to file motions to govern on October 29, 2021. Respondents United
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`States Environmental Protection Agency, et al. (“EPA”) have now determined that
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`EPA will be reconsidering the 2020 Ozone NAAQS Decision, with the intention of
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`completing the reconsideration by the end of 2023. EPA therefore respectfully
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`moves that the Court hold these consolidated cases in abeyance until December 15,
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`USCA Case #21-1028 Document #1920265 Filed: 10/29/2021 Page 2 of 12
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`2023, with a status report due 90 days after the Court’s order placing these cases
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`into abeyance and every 90 days thereafter.
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`Counsel for Respondents have conferred with Petitioners’ counsel and
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`counsel for intervenors. State Petitioners in Case No. 21-1028 take no position at
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`this time on the relief requested by EPA and intend to file a response in support or
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`opposition by Friday, November 5, 2021. Environmental Petitioners in No. 21-
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`1060 intend to file a response to EPA’s motion by Friday, November 5, 2021, after
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`they have had an opportunity to gain further clarity on EPA’s timeline for
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`reconsidering the ozone NAAQS. Petitioner Center for Biological Diversity in
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`Case No. 21-1073 states that it opposes an abeyance as to the issues raised in its
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`petition, and takes no position on an abeyance as to the other petitions in these
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`consolidated cases. Industry intervenors state that they take no position on the
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`relief requested in this motion. A coalition of intervenors, representing six states
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`oppose the relief requested in this motion.
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`BACKGROUND
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`The Clean Air Act, 42 U.S.C. §§ 7401-7671q, establishes a comprehensive
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`program to protect and enhance the Nation’s air quality through a system of shared
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`federal and state responsibility. Id. § 7401(b)(1). Central to this program are the
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`national ambient air quality standards (NAAQS), which EPA sets to limit the
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`concentration of certain air pollutants in the ambient air to protect against the
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`-2-
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`USCA Case #21-1028 Document #1920265 Filed: 10/29/2021 Page 3 of 12
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`pollutants’ effects on public health and welfare. Id. §§ 7408-09. EPA has
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`established NAAQS for six common air pollutants, including ozone. 40 C.F.R. pt.
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`50. EPA is required to periodically review its standards to ensure that they provide
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`the requisite protection. 42 U.S.C. § 7409(d). The Act further requires that EPA
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`appoint an independent scientific review committee, the Clean Air Scientific
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`Advisory Committee (CASAC), and requires that committee to advise EPA on its
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`review of the science and on appropriate revisions to the NAAQS. Id. §
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`7409(d)(2).
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`EPA most recently revised the ozone NAAQS in a rule promulgated in 2015.
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`80 Fed. Reg. 65,292 (Oct. 26, 2015). In the 2020 Ozone NAAQS Decision
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`challenged here, EPA completed a review of the body of currently available
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`scientific evidence and decided to retain the existing ozone NAAQS promulgated
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`in 2015.
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`On January 20, 2021, President Biden issued an “Executive Order on
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`Protecting Public Health and the Environment and Restoring Science to Tackle the
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`Climate Crisis,” (“Executive Order”) which directed review of certain agency
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`actions taken from January 20, 2017, until January 20, 2021.1 An accompanying
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`1 https://www.whitehouse.gov/briefing-room/presidential-
`actions/2021/01/20/executive-order-protecting-public-health-and-environment-
`and-restoring-science-to-tackle-climate-crisis/
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`-3-
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`USCA Case #21-1028 Document #1920265 Filed: 10/29/2021 Page 4 of 12
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`fact sheet provides a non-exclusive list of agency actions that agency heads will
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`review in accordance with that order, including the 2020 Ozone NAAQS
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`Decision.2 Consistent with this direction, EPA’s Acting General Counsel has
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`requested that stays or abeyances of proceedings be obtained in pending litigation
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`seeking judicial review of any EPA regulation promulgated in the above time
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`period. See Motion for Abeyance Ex. 1, Case No. 21-1028, Doc. No. 1885865
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`(Feb. 17, 2021).
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`EPA has now determined that it will be reconsidering the 2020 Ozone
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`NAAQS Decision through a new notice-and-comment rulemaking proceeding, and
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`its expected timetable for this reconsideration confirms its intention to move as
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`expeditiously as practicable. Goffman Decl. ¶ 20-21. EPA’s goal is to complete
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`this reconsideration by the end of 2023. Id. ¶¶ 20. In an effort to obtain even more
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`robust input from CASAC regarding policy-relevant science during the
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`forthcoming reconsideration, EPA anticipates that it will convene an ozone-specific
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`panel supporting CASAC for this reconsideration, as the review of the Ozone
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`NAAQS culminating in the 2020 Ozone NAAQS Decision was completed without
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`the benefit of such a panel. Id. ¶ 21. During the review leading up to the 2020
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`decision CASAC had noted the absence of an ozone review panel, stating:
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`2 https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-
`sheet-list-of-agency-actions-for-review/
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`-4-
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`USCA Case #21-1028 Document #1920265 Filed: 10/29/2021 Page 5 of 12
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`“interactive discussion between the CASAC and a pollutant-specific review panel,
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`enables significantly more discussion and deliberation among experts with
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`differing backgrounds and opinions, potentially resulting in a more comprehensive
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`examination of some controversial topics.”3 Id. ¶ 22. Convening an ozone-
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`specific review panel and seeking its advice, which includes a public meeting and
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`the development of the CASAC’s advice to the Administrator, requires time, and
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`completing that process and the rulemaking process by December 2023 would be
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`an expeditious schedule. Id. ¶ 23; see also id. ¶¶ 7-9 (describing the types of
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`documents and analysis that EPA may prepare in the course of NAAQS reviews,
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`including to facilitate the CASAC’s advisory role); id. ¶¶ 12-14 (discussing the
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`significant process involved in determining whether to revise a NAAQS and, as
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`appropriate, revising a NAAQS).
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`ARGUMENT
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`The Court should grant EPA’s motion for an abeyance. Agencies have
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`inherent authority to reconsider past decisions and to revise, replace or repeal a
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`decision to the extent permitted by law and supported by a reasoned explanation.
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`3 Letter from Louis Anthony Cox, Jr., Chair, Clean Air Scientific Advisory
`Committee, to Administrator Andrew R. Wheeler, Re: CASAC Review of the
`EPA’s Policy Assessment for the Review of the Ozone National Ambient Air
`Quality Standards (External Review Draft – October 2019), Consensus Responses
`to Charge Questions at 1 (February 19, 2020). Available at:
`https://yosemite.epa.gov/sab/sabproduct.nsf/264cb1227d55e02c85257402007446a
`4/4713D217BC07103485258515006359BA/$File/EPA-CASAC-20-003.pdf
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`-5-
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`USCA Case #21-1028 Document #1920265 Filed: 10/29/2021 Page 6 of 12
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`FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); Motor Vehicle
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`Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42 (1983) (“State
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`Farm”). Here, EPA intends to reconsider the 2020 Ozone NAAQS Decision with
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`the goal of completing that reconsideration by 2023. Moreover, a revised
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`rulemaking based “on a reevaluation of which policy would be better in light of the
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`facts” is “well within an agency’s discretion,” and “‘[a] change in administration
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`brought about by the people casting their votes is a perfectly reasonable basis for
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`an executive agency’s reappraisal of the costs and benefits of its programs and
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`regulations.’” Nat’l Ass’n of Home Builders v. EPA, 682 F.3d 1032, 1038 & 1043
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`(D.C. Cir. 2012) (quoting State Farm, 463 U.S. at 59 (Rehnquist, J., concurring in
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`part and dissenting in part)); see also Nat’l Cable & Telecomm. Ass’n v. Brand X
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`Internet Servs., 545 U.S. 967, 981 (2005) (internal quotation marks and citations
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`omitted).
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`Courts may defer judicial review of a final rule pending completion of
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`reconsideration proceedings. See Am. Petroleum Inst. v. EPA (“API”), 683 F.3d
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`382 (D.C. Cir. 2012). And this Court has often held challenges to Clean Air Act
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`rules, in particular, in abeyance pending completion of reconsideration
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`proceedings. See, e.g., Sierra Club v. EPA, 551 F.3d 1019, 1023 (D.C. Cir. 2008);
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`New York v. EPA, No. 02-1387, 2003 WL 22326398 at *1 (D.C. Cir. 2003).
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`-6-
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`USCA Case #21-1028 Document #1920265 Filed: 10/29/2021 Page 7 of 12
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`With these principles in mind, abeyance is warranted in this case. EPA
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`reviewed the 2020 Ozone NAAQS Decision following the direction of the
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`President of the United States and decided to reconsider the 2020 Ozone NAAQS
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`Decision after determining that there are aspects of the 2020 Ozone NAAQS
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`Decision that it wishes to reassess. Thus, “[i]t would hardly be sound stewardship
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`of judicial resources to decide this case now.” API, 683 F.3d at 388. Abeyance
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`would allow EPA to “apply its expertise and correct any errors, preserve[] the
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`integrity of the administrative process, and prevent[] piecemeal and unnecessary
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`judicial review.” Id. It would allow EPA the first opportunity to determine which
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`aspects of the 2020 Ozone NAAQS Decision, if any, warrant revision or additional
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`explanation, and thus serve the proper function of the administrative process.
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`EPA’s determination to reconsider the 2020 Ozone NAAQS Decision comes
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`at the very beginning stages of this case, before any meaningful investment of time
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`or resources by either the Court or the parties has occurred. As a corollary, this
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`means that granting an abeyance will essentially conserve all of the resources
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`normally expended by the parties and the Court in litigating a petition for judicial
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`review of agency action. While EPA cannot prejudge the outcome of its
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`reconsideration process, litigating these consolidated cases risks wasting these
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`resources in review of an action that may be mooted, or a record that may be
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`changed, through a final action that completes the reconsideration process. Given
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`-7-
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`USCA Case #21-1028 Document #1920265 Filed: 10/29/2021 Page 8 of 12
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`EPA’s intended timetable, such changes may occur shortly after (or even before)
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`any Court decision.
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`In addition, EPA has expressed its intention to act expeditiously in
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`conducting reconsideration and expects to issue a final decision by the end of
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`2023. Allowing this case to proceed would not be an efficient approach. This case
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`has not yet been briefed. Given EPA’s intended timetable, reconsideration would
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`be well underway prior to briefing, argument and decision. EPA’s decision on
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`reconsideration could moot the present challenges. An abeyance is thus an
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`efficient approach, which allows EPA’s final decision on reconsideration to serve
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`as the proper vehicle for any remaining challenges and which ensures that the
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`Court will have the benefit of EPA’s most up-to-date views and explanations for its
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`decision.
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`By contrast, lifting the abeyance now and proceeding with litigation could
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`subvert the administrative process by pressuring EPA to commit (in its briefs and
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`argument in this Court) to positions on issues relating to the 2020 Ozone NAAQS
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`Decision before it has completed its reconsideration of its position on those issues.
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`It would also result in moving forward with litigation that could, ultimately, prove
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`unnecessary depending on EPA’s further administrative actions.
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`In view of such considerations, this Court has routinely granted abeyance
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`requests in litigation challenging agency rulemaking where a change in presidential
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`-8-
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`USCA Case #21-1028 Document #1920265 Filed: 10/29/2021 Page 9 of 12
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`administrations has prompted or directed the agency to reconsider the underlying
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`action. See, e.g., California v EPA, Case No. 21-1014 & consol. cases, ECF No.
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`1916444 (D.C. Cir. Oct. 1, 2021). Competitive Enterprise Institute v. EPA, ECF
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`No. 1892931 (D.C. Cir. 20-1145) (granting abeyance in case challenging motor
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`vehicle emissions standards); Union of Concerned Scientists v. EPA, ECF No.
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`1884115 (D.C. Cir. 19-1230) (granting abeyance in case challenging withdrawal of
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`motor vehicle standard preemption waiver)
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`For the reasons stated above, and good cause shown, EPA respectfully
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`requests that the Court order that these consolidated cases be placed into abeyance
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`until December 15, 2023, with status reports due 90 days after the Court’s entry of
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`this order and every 90 days thereafter. EPA expects that the parties will confer in
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`advance of the expiration of the abeyance period and submit proposals to the
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`Court.4
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`Respectfully submitted,
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`4 EPA’s request for an abeyance until December 15, 2023 is without
`prejudice to any relief it may request following the expiration of the
`abeyance period.
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`-9-
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`USCA Case #21-1028 Document #1920265 Filed: 10/29/2021 Page 10 of 12
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`Dated: October 29, 2021
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`
`/s/ Benjamin Carlisle
`BENJAMIN CARLISLE
`U.S. Department of Justice
`Environment and Natural Resources
`Division
`Environmental Defense Section
`P.O. Box 7611
`Washington, DC 20044
`Phone: (202) 514-9771
`Email: benjamin.carlisle@usdoj.gov
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`Counsel for Respondents
`Environmental Protection Agency, et
`al.
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`-10-
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`USCA Case #21-1028 Document #1920265 Filed: 10/29/2021 Page 11 of 12
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`CERTIFICATE OF COMPLIANCE
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`Pursuant to Federal Rule of Appellate Procedure 27(d), I hereby certify that
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`the foregoing complies with the type-volume limitation because it contains 1,831
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`words, according to the count of Microsoft Word.
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`-11-
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`USCA Case #21-1028 Document #1920265 Filed: 10/29/2021 Page 12 of 12
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`CERTIFICATE OF SERVICE
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`I hereby certify, pursuant to Fed. R. App. P. 25(c), that the foregoing was
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`electronically filed with the Clerk of the Court using the CM/ECF system, which
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`will send a notification to the attorneys of record in this matter, who are registered
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`with the Court’s CM/ECF system.
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`/s/ Benjamin Carlisle
`Benjamin Carlisle
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`-12-
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