On October 24, 2014, the Environmental Protection Agency (“EPA”) published its final rule documenting the failure of the California Air Resources Board (“CARB”) to submit a State Implementation Plan (“SIP”) revision containing measures to control California’s significant contribution to the nonattainment, or interference with maintenance, of the 2006 24 hour fine particulate matter (“PM2.5”) National Ambient Air Quality Standards (“NAAQS”) in other states (“Interstate Transport SIP”).
After five years of give and take with EPA, beginning with the submittal of “an infrastructure SIP certification letter,” certifying compliance with the “information and authorities, compliance assurances, procedural requirements, and control measures that constitute the ‘infrastructure’ of a state’s air quality management program,” 79 Fed. Reg. 63737, in 2009, the proposed infrastructure SIP was the subject of a 2012 lawsuit brought by the Sierra Club against EPA for failure of enforcement of the infrastructure SIP requirements, which lawsuit was stayed by the United States District Court for the Northern District of California as related to ongoing litigation in the United States Supreme Court, EME Homer City v. EPA, 696 F.3d 7 (D.C. Cir. 2012). On March 6, 2014, CARB submitted a multi-pollutant infrastructure SIP revision including a SIP revision for the 2006 PM2.5 NAAQS. That submission, however, also failed to meet the requirements of CAA § 110(a)(2)(D)(i)(I), where CARB declined to include interstate transport of pollutants because of its interpretation of the D.C. Circuit Court of Appeals Opinion in EME Homer City v. EPA, supra, which it read as exempting states from addressing Prongs 1 and 2 “until U.S. EPA quantifies each state’s transport obligation.” After the Supreme Court’s ultimate reversal of the D.C. Circuit Court’s decision in EME Homer City, on July 18, 2014, CARB withdrew its earlier 2009 “infrastructure SIP certification letter” pending its future revision but leaving CARB without even a gesture of compliance.