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Advanced Energy Economy, Petition for Review USCA Case #19-1249 Document #1818015 Filed: 11/25/2019 Page 1 of 61 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ADVANCED ENERGY ECONOMY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ANDREW R. WHEELER, in his official capacity as Administrator, United States Environmental Protection Agency, No. 19-1249 Respondents. PETITION FOR REVIEW Pursuant to Rule 15 of the Federal Rules of Appellate Procedure, D.C. Circuit Rule 15, and Section 307(b)(1) of the Clean Air Act, 42 U.S.C. USCA Case #19-1249 Document #1818015 Filed: 11/25/2019 Page 2 of 61 § 7607(b)(1), Advanced Energy Economy (“AEE”) hereby petitions this Court for review of the final actions by respondents United States Environmental Protection Agency and Administrator Andrew R. Wheeler titled “The Safer Affordable Fuel Efficient (SAFE) Vehicles Rule Part One: One National Program,” and published at 84 Fed. Reg. 51,310 (September 27, 2019). A copy is attached as Exhibit A. This petition for review is timely filed within sixty days of the challenged action’s publication in the Federal Register. 42 U.S.C. § 7607(b)(1). DATED: November 25, 2019 Respectfully submitted, /s/ Jeffery Scott Dennis Jeffery S. Dennis General Counsel and Managing Director Advanced Energy Economy 1000 Vermont Ave. NW Suite 300 Washington, D.C. 20005 202.383.1950 [email protected] Counsel for Advanced Energy Economy 2 USCA Case #19-1249 Document #1818015 Filed: 11/25/2019 Page 3 of 61 CERTIFICATE OF SERVICE I, Jeffery Scott Dennis, hereby certify that on this 25th day of November, 2019, a true and correct copy of the foregoing Petition for Review was served by certified mail, return receipt requested, on the following: Hon. Andrew Wheeler, Administrator Office of the Administrator (1101A) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 Correspondence Control Unit Office of General Counsel (2311) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 Hon. William Barr Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530 /s/ Jeffery Scott Dennis Jeffery Scott Dennis 3 USCA Case #19-1249 Document #1818015 Filed: 11/25/2019 Page 4 of 61 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ADVANCED ENERGY ECONOMY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ANDREW R. WHEELER, in his official capacity as Administrator, United States Environmental Protection Agency, Respondents. No. 19-1249 RULE 26.1 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1, Petitioner Advanced Energy Economy (“AEE”) states as follows: USCA Case #19-1249 Document #1818015 Filed: 11/25/2019 Page 5 of 61 AEE is a not-for-profit business association dedicated to making energy secure, clean, and affordable. AEE does not have any parent companies or issue stock, and no publicly held company has a 10% or greater ownership interest in AEE. DATED: November 25, 2019 Respectfully submitted, /s/ Jeffery Scott Dennis Jeffery S. Dennis General Counsel and Managing Director Advanced Energy Economy 1000 Vermont Ave. NW Suite 300 Washington, D.C. 20005 202.383.1950 [email protected] Counsel for Advanced Energy Economy USCA Case #19-1249 Document #1818015 Filed: 11/25/2019 Page 6 of 61 CERTIFICATE OF SERVICE I, Jeffery Scott Dennis, hereby certify that on this 25th day of November, 2019, a true and correct copy of the foregoing Rule 26.1 Corporate Disclosure Statement was served by certified mail, return receipt requested, on the following: Hon. Andrew Wheeler, Administrator Office of the Administrator (1101A) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 Correspondence Control Unit Office of General Counsel (2311) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 Hon. William barr Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530 /s/ Jeffery Scott Dennis Jeffery Scott Dennis USCA Case #19-1249 Document #1818015 Filed: 11/25/2019 Page 7 of 61 EXHIBIT A 51310USCA Federal Case #19-1249Register/Vol. 84,Document No. 188/Friday, #1818015 September 27,Filed: 2019/Rules 11/25/2019 and Regulations Page 8 of 61 ENVIRONMENTAL PROTECTION November 26, 2019. Given the inherent III. EPA's Withdrawal of Aspects of the AGENCY relationship between the agencies' January 2013 Waiver of CAA section actions, any challenges to NHTSA's 209(b) Preemption of the State of 40 CFR Parts 85 and 86 regulation should also be filed in the California's Advanced Clean Car Program United States Court of Appeals for the IV. Regulatory Notices and Analyses DEPARTMENT OF TRANSPORTATION D.C. Circuit. See also Sections III.G and IV.Q of this preamble. I. Overview National Highway Traffic Safety ADDRESSES: EPA and NHTSA have On August 24, 2018, the Administration established dockets for this action under Environmental Protection Agency (EPA) Docket ID No. EPA-HQ-OAR-2018- and the Department of Transportation's 49 CFR Parts 531 and 533 0283 and NHTSA 2018-0067, National Highway Traffic Safety [NHTSA-2018-0067; EPA-HQ-OAR-2018- respectively. All documents in the Administration (NHTSA) (collectively, 0283; FRL 10000-45-OAR] docket are listed in the http:// "the agencies") jointly published in the RIN 2127-AL76; 2060-AU09 www.regulations.gov index. Although Federal Register a notice of proposed listed in the index, some information is rulemaking entitled, "The Safer The Safer Affordable Fuel-Efficient not publicly available, e.g., confidential Affordable Fuel-Efficient (SAFE) (SAFE) Vehicles Rule Part One: One business information (CBI) or other Vehicles Rule for Model Years 2021- National Program information whose disclosure is 2026 Passenger Cars and Light Trucks" restricted by statute. Certain other (the SAFE Vehicles rule).' In the NPRM, AGENCY: Environmental Protection material, such as copyrighted material, EPA proposed new greenhouse gas Agency and National Highway Traffic will be publicly available in hard copy (GHG) standards and NHTSA proposed Safety Administration, Department of in EPA's docket, and electronically in new Corporate Average Fuel Economy Transportation. NHTSA's online docket. Publicly (CAFE) standards for model years (MY) ACTION: Withdrawal of waiver; final available docket materials can be found 2021 to 2026 light duty vehicles. The rule. either electronically in agencies also proposed to take two www.regulations.govby searching for actions, separate from the proposed SUMMARY: On August 24, 2018, the the dockets using the Docket ID standards, needed to ensure the Environmental Protection Agency (EPA) numbers above, or in hard copy at the existence of one Federal program for and the Department of Transportation's following locations: EPA: EPA Docket light vehicles. First, EPA proposed to National Highway Traffic Safety Center, EPA/DC, EPA West, Room 3334, withdraw the waiver it had previously Administration (NHTSA) jointly 1301 Constitution Ave. NW, provided to California for that State's published in the Federal Register a Washington, DC. The Public Reading GHG program and Zero Emissions notice of proposed rulemaking entitled, Room is open from 8:30 a.m. to 4:30 Vehicle (ZEV) mandate. Second, "The Safer Affordable Fuel-Efficient p.m., Monday through Friday, excluding NHTSA proposed regulatory text that (SAFE) Vehicles Rule for Model Years legal holidays. The telephone number made explicit that State programs to 2021-2026 Passenger Cars and Light for the Public Reading Room is (202) limit or prohibit tailpipe GHG emissions Trucks." In the NPRM, the agencies 566-1744. NHTSA: Docket Management or establish ZEV mandates are proposed new and amended greenhouse Facility, M-30, U.S. Department of preempted, to carry out its statutory gas (GHG) and Corporate Average Fuel Transportation (DOT), West Building, authority to set nationally applicable Economy (CAFE) standards for model Ground Floor, Rm. W12-140, 1200 New fuel economy standards and consistent year 2021 to 2026 light duty vehicles. Jersey Avenue SE, Washington, DC with the express preemption provisions EPA also proposed to withdraw the 20590. The DOT Docket Management of the Energy Policy and Conservation waiver it had previously provided to Facility is open between 9 a.m. and 5 Act (EPCA). California for that State's GHG and ZEV p.m. Eastern Time, Monday through The SAFE Vehicles Rule received programs under section 209 of the Clean Friday, except Federal holidays. several hundred thousand public Air Act. NHTSA also proposed comments, which discussed in great regulatory text implementing its FOR FURTHER INFORMATION CONTACT: EPA: Christopher Lieske, Office of detail all aspects of the proposal. The statutory authority to set nationally nature of the comments received related applicable fuel economy standards that Transportation and Air Quality, Assessment and Standards Division, to the proposed standards and the made explicit that those State programs proposed actions on preemption, would also be preempted under Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI though, were considerably different. NHTSA's authorities. In this action, the That is, the vast majority of comments, agencies finalize the two actions related 48105; telephone number: (734) 214- 4584; fax number: (734) 214-4816; whether one considers the number of to the waiver and preemption. commenters, the number of issues Accordingly, in this document: EPA email address: lieske.christopher@ epa.gov, or contact the Assessment and raised by commenters, or the length and announces its decision to withdraw the level of detail of those comments, waiver; and NHTSA finalizes regulatory Standards Division, email address: [email protected]. focused primarily on the agencies' text related to preemption. The agencies proposed standards. In contrast, the NHTSA: James Tamm, Office of anticipate issuing a final rule on comments to the preemption issues, Rulemaking, Fuel Economy Division, standards proposed in the NPRM in the though substantive and thorough, were National Highway Traffic Safety near future.
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