There are a number of different issues concerning the SIP Call which are all coming together and will cause impacts on all of the States involved.
First, The SIP Call which originally required the States to submit their plans to the EPA by this September has been put on hold by the court while they consider whether or not to overturn the rulemaking. This has created confusion within the States. I know some States are going forward with a SIP, others are submitting SIPs which would not have been approved by the EPA, and other States have decided not to submit SIPs until the court case has been decided. A question I have for all of the States is if you go forward with something now and either the courts or the EPA changes the rules during the process, what will be the effect?
Second, absent the NOx SIP Call, the EPA is going forward with the Section 126 petitions which will require reductions, starting in December, based on the one-hour ozone standard. Is this the best use of resources? Once again, if the SIP call, or a modified version, is reinstated next year, will the States and industry have made irreversible decisions regarding control measures which will be forced to change in mid-course?
Finally, overshadowing all of this is the NAAQS court case decision invalidating the new ozone standards. Much of the EPA's justification for both the SIP Call and the Section 126 petitions was based on the eight-hour ozone standard which has been held unconstitutional by the court, and unenforceable. I think it is important to note that while the constitutional decision was a split decision, all three judges agreed that the standard could not be enforced.
I believe most of these problems could have been avoided if the EPA had bothered to work collectively with all of the Regions affected by these decisions. Last year a group of Midwest and Southeastern Governors offered a compromise solution which would have addressed over 75% of what the EPA regulation would have accomplished. This would have avoided the lawsuit and allowed the program to continue. Sometimes it appears that the only lawsuits this EPA is willing to avoid are the ones filed by environmentalists. They seem to prefer conflict with the States over rational program choices.