[00:00:00] Speaker 04:
23-9565 Center for Biological Diversity versus EPA, Mr. Mahar.

[00:00:07] Speaker 04:
You may proceed.

[00:00:10] Speaker 00:
Good morning.

[00:00:12] Speaker 00:
May it please the court, Ryan Mahar on behalf of petitioners, which I'll refer to as the public interest groups.

[00:00:18] Speaker 00:
I'd like to reserve four minutes of my time for rebuttal, please.

[00:00:22] Speaker 00:
Your honors, in the decision on appeal, EPA approved parts of Colorado's plan for meeting ozone air quality standards

[00:00:29] Speaker 00:
even though the plan had already failed.

[00:00:31] Speaker 00:
This unique situation resulted from EPA's and Colorado's delays in developing and finalizing the plan.

[00:00:39] Speaker 00:
Now EPA and Colorado seek to force through an inadequate plan in further violation of the act.

[00:00:45] Speaker 00:
They take the expression a day late and a dollar short to a new extreme.

[00:00:49] Speaker 00:
Even though delayed, the public is still entitled to the pollution reductions that this plan is required to achieve to protect public health from toxic ozone.

[00:00:59] Speaker 00:
Well, the state and EPA's delayed resulted in a number of serious consequences.

[00:01:04] Speaker 00:
I'd like to focus on two specific sub-issues today.

[00:01:07] Speaker 04:
Before you get to that, do we have a plan?

[00:01:10] Speaker 04:
They approve part of it, they disapprove part of it.

[00:01:13] Speaker 04:
What's the status of a plan if it's still under development by the state for the disapproved elements?

[00:01:20] Speaker 00:
Yes, Your Honor.

[00:01:22] Speaker 00:
Largely in effect, there are a few disapprovals related to reporting requirements.

[00:01:28] Speaker 00:
But the substantive provisions of the plan are fully in effect, as well as the elements before the court reasonable for the progress and the admissions budget.

[00:01:39] Speaker 04:
And because of the timing you just emphasized, the state is obligated to prepare a new SIP

[00:01:48] Speaker 04:
correct with the severe designation?

[00:01:51] Speaker 04:
What's the status of that?

[00:01:53] Speaker 00:
That's correct, Your Honor.

[00:01:54] Speaker 00:
The severe plan has been submitted to EPA.

[00:01:58] Speaker 00:
It's pending before EPA.

[00:02:00] Speaker 00:
EPA's obligation to take final action on the plan doesn't come up for several months.

[00:02:06] Speaker 00:
It'll be in 2025?

[00:02:09] Speaker 00:
December 2024.

[00:02:10] Speaker 00:
The attainment date that the severe plan is meant to achieve is July 20, 2027.

[00:02:17] Speaker 00:
The issue is EPA has a long history of delay when it comes to complying with deadlines to finalize severe plans.

[00:02:26] Speaker 00:
So we're talking several months before EPA is even obligated to finalize the plan.

[00:02:31] Speaker 04:
And what are the practical implications, if we're really your favorite in this case?

[00:02:37] Speaker 00:
Yes, Your Honor.

[00:02:39] Speaker 00:
First and foremost, vacature of the emissions budget would require EPA to disapprove of the 2020 emissions budget.

[00:02:47] Speaker 00:
and Colorado or EPA would have to implement a new serious emissions budget.

[00:02:53] Speaker 00:
And I want to emphasize that this is a very live issue because the 2020 emissions budget at issue is controlling transportation projects and their approval currently.

[00:03:04] Speaker 04:
But if that's the case, won't that process be working in tandem with the new SIP for the severe attainment

[00:03:13] Speaker 00:
The serious plan is much farther ahead because we've already reached the stages of approval or disapproval for certain elements, but approval.

[00:03:21] Speaker 04:
And won't it have to have RFPs and a budget in the new plan?

[00:03:24] Speaker 00:
Sorry, I missed that question, Your Honor.

[00:03:26] Speaker 04:
Won't the new plan have RFPs and budgets that are aimed towards achieving attainment?

[00:03:34] Speaker 00:
That's correct, Your Honor, but finalization of that new plan is likely multiple years away.

[00:03:39] Speaker 00:
And I want to point out, too, with the disapproval of the serious emissions budget at issue, there's nothing preventing EPA from stepping in with a federal emissions budget immediately.

[00:03:50] Speaker 00:
The Supreme Court said in EME Homer City that after a disapproval, EPA can step in with a federal plan immediately.

[00:03:58] Speaker 04:
Actually, the severe plan could... It doesn't have to, though.

[00:04:00] Speaker 04:
It's discretionary.

[00:04:01] Speaker 00:
It is discretionary, Your Honor, yes.

[00:04:03] Speaker 00:
So there's a two-year clock that starts clicking with the disapproval where the state either has to provide a new plan or EPA has to step in.

[00:04:13] Speaker 04:
And if you could just sum up in a sentence or two, what is the remedy that you're seeking and why is it going to accomplish anything in light of the new SIP being developed?

[00:04:26] Speaker 00:
Yes, Your Honor, we're requesting vacature of the reasonable further progress and vehicles budget, which will result in their disapproval and will hasten the process of securing a stronger budget and stronger RFP faster than the severe planning process.

[00:04:44] Speaker 04:
And how would it do that?

[00:04:44] Speaker 04:
It's still going to take some time to come up with a revised plan.

[00:04:49] Speaker 04:
I mean, is there a deadline there that the state will be under the gun for?

[00:04:54] Speaker 00:
With the disapproval, it would be the two-year clock that starts ticking upon the disapproval.

[00:05:02] Speaker 00:
But again, I want to emphasize that, as the DC District Court has said, EPA has a nearly unblemished record of missing Clean Air Act deadlines with respect to state implementation plan developments.

[00:05:14] Speaker 04:
Although that's not your issue here, is it?

[00:05:16] Speaker 00:
It's not, but it reflects on the practical considerations related to the not parallel, but serious and severe planning process and the adoption of the plan.

[00:05:28] Speaker 03:
So your position would be you can't wait just because this 2027 plan is on the horizon because with EPA's track record, that's probably not going to happen in 2027.

[00:05:42] Speaker 03:
So we have to get this one in place as soon as possible.

[00:05:46] Speaker 00:
That's correct.

[00:05:47] Speaker 00:
In addition to the importance of maintaining the integrity of the SIP process, because EPA and Colorado have failed five times to produce SIPs that achieve attainment between 2008 and 2015 ozone nacks.

[00:06:00] Speaker 00:
That's a five-time failure.

[00:06:04] Speaker 00:
Waiting for the severe SIP is not going to be the solution.

[00:06:06] Speaker 00:
We need precedent that strengthens the serious SIP and thereby strengthens future SIPs.

[00:06:13] Speaker 00:
Unfortunately, we're on track to not meet the severe

[00:06:16] Speaker 00:
Attainment deadline the applicable years that are relevant to that consideration are 2024 to 2026 and This summer was one of the worst ozone seasons on record so the state will have a hard time meeting the severe plan or excuse me the severe attainment date and It's likely that the severe plan will be significantly delayed.

[00:06:41] Speaker 03:
Let me change topics on you a little bit

[00:06:43] Speaker 03:
So I look at this thing and we're talking about the vehicle budget and the RFP of the SIP.

[00:06:52] Speaker 03:
But to get ozone, to reach attainment with respect to ozone, there are other items that are at play also, right?

[00:07:02] Speaker 03:
So I guess I'm wondering, yeah, we look at this and these two things did not cause attainment with the air quality standards.

[00:07:14] Speaker 03:
But how can we look at just these two things when we're not looking at stationary sources and various other parts of the holistic review that we need to do to reach a decision about the air quality, meeting the air quality standards?

[00:07:34] Speaker 00:
Yes, Your Honor.

[00:07:34] Speaker 00:
First, I'd like to point out that this is a problem of EPA's own creation, where

[00:07:39] Speaker 00:
I'm not blaming you for it.

[00:07:42] Speaker 03:
I'm not blaming you.

[00:07:43] Speaker 03:
I'm just wondering how it works.

[00:07:45] Speaker 03:
Even if they did create the problem, how do we fix it?

[00:07:48] Speaker 00:
We're in a universe that has contravened the Clean Air Act's purposes and clear statutory deadlines, where normally, as you say, RFP and the budget would be approved

[00:08:00] Speaker 00:
before the plan is supposed to work, well before, along with other SIP elements.

[00:08:07] Speaker 00:
However, the segmentation of the individual SIP elements doesn't mean that the individual elements like RFP and budget can be

[00:08:17] Speaker 00:
One, divided from their Clean Air Act requirements, and then two, diluted to be meaningless.

[00:08:23] Speaker 00:
It's a divide and conquer kind of strategy that's really unfortunate.

[00:08:27] Speaker 00:
So holding individual SIP elements to their Clean Air Act requirements, even though EPA has taken this segmented approach to approving a plan, is of the utmost importance.

[00:08:38] Speaker 00:
Also, RFP,

[00:08:40] Speaker 00:
is a more important element than EPA gives it credit for.

[00:08:44] Speaker 00:
Because RFP is setting the emission reductions targets.

[00:08:49] Speaker 00:
It's in the driver's seat.

[00:08:51] Speaker 00:
And the other elements, like reasonably available control technology, are the parts of the plan that actually achieve emissions reductions.

[00:09:00] Speaker 00:
But again, it's RFP that's setting those goals, setting those targets.

[00:09:04] Speaker 00:
And for what purpose?

[00:09:06] Speaker 00:
The purpose is attainment.

[00:09:07] Speaker 00:
And that can't be divided from RFP, and RFP cannot be severed from that objective.

[00:09:19] Speaker 04:
What's the flaw then in EPA's argument that RFP is just a sub-element of an overall plan that's designed to achieve attainment?

[00:09:33] Speaker 04:
Because clearly, all these elements have to work.

[00:09:38] Speaker 04:
in combination to, I don't think anybody would say, RFP is just a metric.

[00:09:43] Speaker 04:
It's a way to measure progress, right?

[00:09:45] Speaker 04:
It's not the end goal.

[00:09:47] Speaker 04:
The end goal is whatever the ozone calculation is going to be.

[00:09:54] Speaker 04:
So why can't they approve parts of it and disapprove other parts of it, which is what they did here?

[00:10:03] Speaker 00:
The reason is because, as I was telling Judge Carson, the purpose of RFP is serving as a goal-setting mechanism.

[00:10:10] Speaker 00:
So the other elements of the plan are doing the work, so to speak, and RFP guides those emissions reductions.

[00:10:18] Speaker 00:
And it's emission reductions that will bring us into attainment.

[00:10:22] Speaker 00:
So without that driving force that's aimed at attainment, actually these other SIP elements are somewhat purposeless, or at least are not

[00:10:32] Speaker 00:
designed pursuant to the Clean Air Act's requirements.

[00:10:35] Speaker 00:
So I think at bottom, the issue, especially here where 2020 is both an attainment year and a milestone year, is that just relying on simple percentage reductions will not get us to attainment and does not comply with the plain language requirements of the act.

[00:10:56] Speaker 02:
But does it have to get us to attainment?

[00:10:59] Speaker 02:
It seems that the EPA is suggesting

[00:11:02] Speaker 02:
these incremental reductions are designed to essentially help get there, to reach attainment, but they make this sort of fine distinction between being designed to reach attainment and actually pushing through and pushing

[00:11:24] Speaker 02:
Colorado into attainment.

[00:11:25] Speaker 02:
Does that make sense?

[00:11:26] Speaker 00:
Yes, your honor.

[00:11:27] Speaker 00:
I noticed I'm eating into my rebuttal time, but I would like to answer the question.

[00:11:33] Speaker 00:
So one reason this case presents a unique circumstance is that 2020 is both the attainment year and a milestone year.

[00:11:41] Speaker 00:
So normally in the way the Cleaner Act is supposed to work RFP

[00:11:47] Speaker 00:
applies to incremental years that precede the attainment year.

[00:11:50] Speaker 00:
So you're slowly chipping away at the goal of attainment, making steady progress, so you don't save all your emissions reductions for the last year, or at least your planned emissions reductions.

[00:12:01] Speaker 00:
But here, 2020 is also the attainment year, so there's no more progress to be made.

[00:12:06] Speaker 00:
If you don't attain in 2020, you don't attain, and that's exactly what happened here.

[00:12:11] Speaker 00:
And again, 2020 is the last year that RFP was meant to achieve emissions reductions as well.

[00:12:16] Speaker 00:
So that's what makes this a rare circumstance.

[00:12:19] Speaker 04:
And that's four years ago.

[00:12:22] Speaker 04:
Has there been incremental progress since the failure to meet the milestone and attainment goals?

[00:12:30] Speaker 00:
RFP has been met in 2020.

[00:12:32] Speaker 04:
Did it achieve the 3% reduction goal?

[00:12:37] Speaker 00:
It did achieve the numerical reductions on paper.

[00:12:40] Speaker 00:
And EPA approved that analysis.

[00:12:42] Speaker 00:
But we clearly did not achieve attainment.

[00:12:44] Speaker 00:
And we're likely not going to again, unfortunately, in 2027.

[00:12:48] Speaker 00:
OK.

[00:12:49] Speaker 04:
Let's hear from the government.

[00:12:54] Speaker 00:
Thank you, Your Honors.

[00:12:55] Speaker 04:
Welcome.

[00:12:56] Speaker 04:
Ms.

[00:12:56] Speaker 04:
Brown.

[00:12:59] Speaker 01:
Good morning, Your Honors.

[00:13:00] Speaker 01:
May it please the Court.

[00:13:01] Speaker 01:
Lucy Brown for the US Department of Justice on behalf of the US Environmental Protection Agency.

[00:13:06] Speaker 01:
Joining me at council's table is Mike Boydston from EPA's Office of Regional Council.

[00:13:11] Speaker 01:
The Clean Air Act is designed to gradually reduce emissions over time with increasingly stringent controls to help states attain the National Ambient Air Quality Standards, or NACs.

[00:13:22] Speaker 01:
This case concerns EPA's approval of discrete elements of Colorado's plan for reducing ground level ozone in the Denver area, with the overarching goal being attainment of the NACs.

[00:13:35] Speaker 01:
But as the state is managing the many complex issues associated with regulating ozone, different elements of the plan are designed to ensure that Colorado is moving in the right direction and making incremental progress towards attainment.

[00:13:50] Speaker 01:
EPA's role in this process is to review the plan submissions for their consistency with the act, approve the portions that satisfy the act's requirements, and disapprove the portions that do not.

[00:14:03] Speaker 01:
Petitioners would have EPA throw out the entire plan because Denver did not attain by the applicable date.

[00:14:10] Speaker 01:
But doing so would ignore the plain text of the statute and the regulations, which set forth specific, severable requirements for certain plan elements, many of which Colorado has met here.

[00:14:22] Speaker 01:
When a state does not attain, the remedy is not disapproval of the plan.

[00:14:27] Speaker 01:
It is reclassification to a stricter non-attainment designation

[00:14:32] Speaker 01:
with more rigorous requirements, which is precisely what's happened here.

[00:14:36] Speaker 04:
What's your response to my question to counsel that what's the practical effect of a ruling in favor of the center in this case, i.e.

[00:14:48] Speaker 04:
reinstatement of your serious SIP with RFP and budgets included?

[00:14:57] Speaker 01:
Faketer would not accomplish the goals that petitioners are seeking here.

[00:15:01] Speaker 01:
For example, if this court were to vacate the budgets, during that two-year period that Petitioner was referring to, that the state has to cure the defect, the budgets would revert back to the prior budgets, which were approved in 2018 and were attached to the moderate area non-attainment designation.

[00:15:21] Speaker 01:
So those budgets are actually larger.

[00:15:23] Speaker 01:
They would allow for more emissions.

[00:15:25] Speaker 01:
And that's precisely the problem here.

[00:15:28] Speaker 01:
The purpose of reasonable further progress is to progress toward attainment.

[00:15:34] Speaker 01:
And states do this by enacting regulations that form the basis of a prediction that the area will meet these specific percentage reductions over applicable periods of time.

[00:15:46] Speaker 01:
And here Colorado's submission showed that the Denver area would reduce its ozone precursor pollutants, so volatile organic compounds or nitrogen oxides,

[00:15:57] Speaker 01:
by 9% over the applicable three-year period.

[00:16:01] Speaker 01:
Petitioners advance this sort of all or nothing approach.

[00:16:04] Speaker 04:
Did it meet that goal?

[00:16:06] Speaker 01:
It did, Your Honor.

[00:16:07] Speaker 04:
Will the 3% minimum, statutory minimum, correct?

[00:16:13] Speaker 01:
Correct.

[00:16:14] Speaker 01:
States are required to submit a plan that shows at least a 3% reduction per year, averaged over three years.

[00:16:22] Speaker 04:
And for the Denver area, will

[00:16:25] Speaker 04:
a 3% minimum ever achieve the attainment goal?

[00:16:31] Speaker 01:
It could, Your Honor, hypothetically.

[00:16:33] Speaker 01:
But that's not the situation that occurred here.

[00:16:37] Speaker 01:
There are lots of other elements to the plan that contribute to whether the area ultimately attains or not.

[00:16:44] Speaker 01:
And the attainment demonstration, which is a separate requirement under the act, takes that more holistic view of all of the plan elements and using complex modeling

[00:16:53] Speaker 01:
determines whether the area will, in fact, attain by the attainment date.

[00:16:57] Speaker 01:
So that's a much broader look at how all of the factors are working together.

[00:17:03] Speaker 04:
Well, under this plan, has there been backsliding?

[00:17:06] Speaker 04:
Is the ozone quality getting better since 2018, or is it stable or backsliding?

[00:17:14] Speaker 01:
Your Honor, the ozone quality is getting better, and that's proven by EPA's, or rather, Colorado's milestone compliance demonstration.

[00:17:23] Speaker 01:
which is at AR0000138, so that's EPA's approval of their compliance demonstration, that showed between 2018 and 2020, Colorado achieved that 3% annual reduction that was required to show reasonable further progress.

[00:17:41] Speaker 01:
And I think it's important to note that the statute also allows states to propose an even smaller reduction of emissions, if that's all that's technologically feasible, regardless of the consequences for attainment.

[00:17:53] Speaker 01:
And that's at section 7511A, C2B2.

[00:18:01] Speaker 01:
And petitioners advance the same flawed argument for the motor vehicle emissions budgets.

[00:18:06] Speaker 01:
So these budgets are tools used to quantify emissions for on-road motor vehicles to make sure that they conform to the goals of the Clean Air Act.

[00:18:15] Speaker 01:
So states essentially calculate how many emissions they can allow in a given year and still achieve their goals under the act.

[00:18:23] Speaker 01:
and one bucket of these emissions is allocated to motor vehicles.

[00:18:27] Speaker 01:
Petitioners allege that EPA cannot approve budgets once the attainment deadline has passed and the area has not attained.

[00:18:35] Speaker 01:
But what the regulations actually require is that when reviewing the budgets, regardless of if it's before or after the attainment deadline, EPA must consider their consistency with reasonable further progress or attainment or maintenance

[00:18:50] Speaker 01:
depending on what the relevant submission is that EPA is reviewing.

[00:18:54] Speaker 03:
Isn't the ultimate purpose of all of this, though, to reach attainment?

[00:18:58] Speaker 03:
So the vehicle budgets and the RFPs are all what you try to achieve in order to achieve attainment.

[00:19:10] Speaker 03:
Yes, Your Honor.

[00:19:11] Speaker 03:
I mean, so in that sense, doesn't your opponent's

[00:19:17] Speaker 03:
argument have some appeal that if you're approving numbers that don't get you to attainment, why approve them at all?

[00:19:28] Speaker 01:
Your honor, petitioners said that reasonable further progress sets the goals for attainment.

[00:19:34] Speaker 01:
And Congress has said that those goals are specific percentage reductions to show that the area is making forward progress.

[00:19:44] Speaker 01:
And if Congress had wanted to

[00:19:45] Speaker 01:
say that the reasonable further progress meant whatever percentage reduction was required to attain, it would have done so.

[00:19:54] Speaker 01:
And EPA adopted the same percentage reductions in its controlling regulations.

[00:20:00] Speaker 03:
Well, now that it's been the classifications moved from serious to severe, the RFP goals are more or higher, aren't they?

[00:20:13] Speaker 01:
Colorado has to show over the next applicable three-year period that they will reach the 3% reduction over each year.

[00:20:21] Speaker 03:
OK, so it remains 3%.

[00:20:23] Speaker 03:
That's not a higher number.

[00:20:24] Speaker 01:
That's correct, Your Honor.

[00:20:27] Speaker 02:
Could you address his argument about the fact that 2020 was both a milestone year, an attainment year, and how that impacts your argument?

[00:20:39] Speaker 02:
Yes, Your Honor.

[00:20:40] Speaker 02:
I'm a little confused about that one.

[00:20:42] Speaker 01:
Sure, so sometimes the milestone year and the attainment year are different, such as in the NRDC versus EPA case.

[00:20:50] Speaker 01:
Here, just by the circumstances, they're the same.

[00:20:53] Speaker 01:
But the fact of the matter is that the regulations do not say that if the milestone year and the attainment year are the same, then EPA must review the budgets for their consistency with attainment.

[00:21:04] Speaker 01:
It really is about the purpose of the submission.

[00:21:07] Speaker 01:
And here, EPA was acting on the reasonable further progress submission.

[00:21:11] Speaker 01:
And so it reviewed the budgets through that lens.

[00:21:15] Speaker 02:
The Ninth Circuit case didn't really deal with that issue, though, the case you just mentioned, because they weren't separate years in that case.

[00:21:23] Speaker 02:
The court was... Or they weren't the same year, I'm sorry.

[00:21:26] Speaker 01:
That's right.

[00:21:26] Speaker 01:
The court was sort of approaching it from a different perspective because they were different.

[00:21:30] Speaker 01:
But the court did say the regulations are clear.

[00:21:33] Speaker 01:
And for milestone years, EPA can review the budgets for reasonable further progress purposes.

[00:21:41] Speaker 01:
And the reasonable further progress demonstration also comes into play when we are looking at which federal control strategies are causing these emissions to reduce, which kind of brings me to my second point.

[00:21:53] Speaker 01:
In the Clean Air Act context, control strategies are devices or restrictions that are placed on an activity that are intended to reduce emissions.

[00:22:03] Speaker 01:
Colorado has federal control measures which are reviewed and approved by EPA and they become federally enforceable.

[00:22:09] Speaker 01:
And it also has state control measures, which are codified in state regulations and are not federally enforceable.

[00:22:17] Speaker 01:
So here, EPA was reviewing whether Colorado's federally enforceable control measures would provide the emissions reductions necessary to meet reasonable further progress.

[00:22:27] Speaker 01:
So in practicality, it's good to take an example.

[00:22:32] Speaker 01:
So oil and gas condensate tanks.

[00:22:35] Speaker 01:
These tanks store oil during the oil and gas production process.

[00:22:39] Speaker 01:
which we know emit VOCs that contribute to ozone.

[00:22:43] Speaker 01:
So the state submitted an EPA approved a regulation that requires operators of these tanks to cumulatively reduce the VOC emissions from these tanks by 90%.

[00:22:54] Speaker 01:
So this is a federally enforceable control requirement.

[00:22:58] Speaker 01:
That means that if an operator has 10 tanks in its system, for example, it has to reduce the VOC emissions system-wide by 90%.

[00:23:08] Speaker 01:
And there are many methods of doing this, such as attaching a physical control device to a tank, which would combust the VOCs before they got to the atmosphere.

[00:23:17] Speaker 01:
So Colorado knows that looking at the emissions reductions from these tanks alone, it would have provided 11% reductions in VOCs over the applicable three years, which is more than the 9% needed to show reasonable further progress.

[00:23:33] Speaker 01:
Colorado did not need to quantify its reductions from state-only control measures,

[00:23:38] Speaker 01:
to know that its federal measures provided more than enough reductions to show reasonable further progress.

[00:23:45] Speaker 01:
And that brings me to my last point, which is that nothing in the record supports petitioners' argument that these plan submissions would interfere with attainment of the NACs under Section 7410L.

[00:23:56] Speaker 01:
This is an anti-backsliding provision, meaning that EPA cannot approve a plan submission that would move the area backwards in its efforts to attaining

[00:24:08] Speaker 01:
as opposed to forward.

[00:24:10] Speaker 01:
It does not impose an affirmative obligation on EPA to approve only those plan submissions that would guarantee attainment.

[00:24:18] Speaker 01:
And this is EPA's longstanding interpretation of the provision, which has been affirmed by six circuit courts.

[00:24:26] Speaker 01:
It is indisputable that the reasonable further progress demonstration and the budgets move the area forward toward attaining by setting out how Colorado would

[00:24:37] Speaker 01:
reduce its emissions by implementing these federally enforceable control measures.

[00:24:43] Speaker 03:
Let me ask you a question about the state-only control measures.

[00:24:47] Speaker 03:
So from what I understood you to say just then, you have the federally enforceable control measures that you say resulted in an 11% reduction.

[00:25:01] Speaker 03:
There are some state-only control measures on oil and gas in addition to that?

[00:25:06] Speaker 01:
That's right, Your Honor.

[00:25:07] Speaker 01:
So just to be specific, the 11% reduction was from the oil and gas condensate takes only.

[00:25:14] Speaker 01:
So there were additional federal reductions.

[00:25:17] Speaker 01:
But that's just sort of the most straightforward example.

[00:25:19] Speaker 03:
Right.

[00:25:20] Speaker 03:
Give me an example of what would be a state-only reduction.

[00:25:27] Speaker 01:
I don't have a specific state-only reduction at hand.

[00:25:30] Speaker 01:
But I can explain that some reductions are difficult to quantify and therefore wouldn't be included in the plan.

[00:25:36] Speaker 01:
For example, there are regulations that require tanks that pick up the oil from the well pads to reduce their VOC emissions.

[00:25:45] Speaker 01:
So they could add a device that would combust the VOCs or another device that would reroute them because when the oil goes into the tank, it displaces VOC emissions.

[00:25:55] Speaker 01:
So that's really difficult to quantify regularly because it's hard to know how many emissions are in the tank, what's getting displaced, is it combusted, is it rerouted?

[00:26:03] Speaker 01:
That's really hard to measure.

[00:26:05] Speaker 01:
Another example is the leak detection and repair.

[00:26:09] Speaker 01:
So there's a regulation that requires operators to check their tanks and their lines and make sure that there aren't leaks.

[00:26:16] Speaker 01:
If they find one, they have to repair it.

[00:26:19] Speaker 01:
Again, this is incredibly hard to quantify with any certainty.

[00:26:23] Speaker 01:
And that's essentially what petitioners are asking operators and Colorado to do.

[00:26:28] Speaker 01:
Petitioners do not point to anything in the plan that would remove or weaken pollution controls.

[00:26:34] Speaker 01:
And that's because the plan did the opposite.

[00:26:36] Speaker 01:
It included strengthening measures that were intended to reduce emissions, and that includes amendments to Regulation 7 regarding oil and gas, and Regulation 21 regarding consumer products and industrial maintenance coatings.

[00:26:52] Speaker 01:
In sum, EPA properly exercised its authority in approving the portions of the plan that satisfied the act's requirements.

[00:27:01] Speaker 01:
If your honors have no further questions.

[00:27:03] Speaker 04:
So 2020 was the date by which the state or the area was going to achieve attainment, correct?

[00:27:12] Speaker 04:
That was the plan.

[00:27:14] Speaker 01:
The plan was to achieve by 2021, but 2020 was the last year that Colorado would measure its ozone emissions.

[00:27:22] Speaker 04:
Do we have a new attainment year?

[00:27:24] Speaker 04:
Yes, your honor.

[00:27:26] Speaker 04:
When is that?

[00:27:26] Speaker 01:
That's 2027.

[00:27:29] Speaker 04:
And when will the severe SIP be approved?

[00:27:31] Speaker 01:
So the severe plan has been submitted.

[00:27:34] Speaker 01:
It was due in May of this year.

[00:27:36] Speaker 01:
And there's a six-month period where EPA determines whether it's complete.

[00:27:42] Speaker 01:
And after that, it prompts a series of other deadlines for EPA to take action.

[00:27:47] Speaker 01:
So it's sort of contingent on this completeness determination.

[00:27:50] Speaker 04:
Are we going to meet approval before the expiration of the SIP this time?

[00:27:56] Speaker 01:
I don't want to get ahead of the agency.

[00:27:57] Speaker 01:
That's always the goal, Your Honor.

[00:28:00] Speaker 01:
But the Clean Air Act does set forth very ambitious timelines and goals.

[00:28:05] Speaker 04:
All right.

[00:28:05] Speaker 04:
Well, good luck.

[00:28:06] Speaker 04:
Thank you.

[00:28:06] Speaker 04:
Thank you, Your Honor.

[00:28:07] Speaker 04:
Thank you, Council.

[00:28:07] Speaker 04:
We have some rebuttal time.

[00:28:08] Speaker 00:
Thank you, Your Honors.

[00:28:11] Speaker 00:
I'd first like to just quote the definition of RFP at 42 USC Section 75011, which says, RFP constitutes annual incremental reductions in emissions of the relevant air pollutant as required by this part

[00:28:30] Speaker 00:
or may reasonably be required by the administrator for the purpose of ensuring attainment of the applicable standard by the attainment date.

[00:28:39] Speaker 00:
And then the ozone-specific portions of the act that apply to serious areas, specifically 42 USC 7511A, C2B, provide that at least 3% reductions need to be achieved

[00:28:59] Speaker 00:
per year for three years for serious areas.

[00:29:02] Speaker 00:
At least.

[00:29:04] Speaker 00:
And that's the floor.

[00:29:06] Speaker 00:
There is a second provision at C2C, which allows for the administrator to approve less than 3% reduction.

[00:29:15] Speaker 04:
Did they meet that 3% floor?

[00:29:20] Speaker 00:
In what sense, Your Honor?

[00:29:22] Speaker 04:
In the statutory sense.

[00:29:25] Speaker 00:
Well, they need it because they want

[00:29:28] Speaker 00:
They need to set a minimum reduction level, and that's the place to start when it comes to the goal of achieving attainment.

[00:29:36] Speaker 04:
Did they meet the statutory minimum?

[00:29:38] Speaker 00:
Oh, excuse me.

[00:29:39] Speaker 00:
They did meet the at least, but they did not meet the for the purpose of ensuring attainment.

[00:29:44] Speaker 00:
And that was proven, which again, we're in a unique circumstance where undeniably we have the greatest proof that the RFP and budget didn't work.

[00:29:53] Speaker 00:
I'd also like to note that the budget doesn't revert to the 2018 budget.

[00:29:57] Speaker 00:
There would not be a budget, in effect, that would allow for the approval of transportation requirements.

[00:30:02] Speaker 00:
Reversion to the 2018 budget would violate Section 110-L.

[00:30:06] Speaker 00:
And finally, I'd just like to quickly note that... But if we vacate this one, something has to spring into... There would not be a budget for that period, which would be a reason for EPA to act swiftly.

[00:30:19] Speaker 02:
That would be the worst case scenario, then, wouldn't it?

[00:30:23] Speaker 00:
No, because it would prevent projects from being approved in the first place.

[00:30:27] Speaker 00:
Without a budget, there can't be that comparison made.

[00:30:29] Speaker 00:
So it would not allow for unfettered emissions from transportation projects.

[00:30:36] Speaker 00:
Rather, they would cease.

[00:30:38] Speaker 00:
And this would look like a transportation project that would serve a 10,000-house development in East Arapahoe County or something.

[00:30:47] Speaker 04:
But is the definition of a transportation project

[00:30:52] Speaker 00:
It's essentially a highway or public transit project that increases emissions.

[00:30:59] Speaker 00:
So there are exceptions.

[00:31:02] Speaker 00:
Projects could go forward that decrease emissions.

[00:31:08] Speaker 00:
Got it.

[00:31:10] Speaker 00:
And for that reason, we request vacature of the RFP and motor vehicle emissions budget.

[00:31:15] Speaker 00:
Thank you, Your Honor.

[00:31:15] Speaker 04:
Thank you, Counsel.

[00:31:16] Speaker 04:
We appreciate the arguments.

[00:31:17] Speaker 04:
They were helpful.

[00:31:18] Speaker 04:
You're excused.

[00:31:19] Speaker 04:
And the case is submitted.