Five key take-aways from oral arguments in HPBA vs. EPA

The judges hearing this case: Judge
Pillard, Wilkins and Henderson.

Lawyers for HPBA and the EPA faced off today in the litigation in the DC Court of Appeals between HPBA and EPA, which is now focused only on the audit provisions in the 2015 wood heater regulations. Now, it’s a waiting game.

Each side was given 10 minutes, but the judges had so manyquestions for David Chung, the lead attorney for HPBA, that it took nearly 28 minutes before the EPA attorney, Simi Bhat, began. The oral arguments and questions from the judges can be heard here.

All three judges asked tough questions and appeared well-prepared and surprisingly well-versed in the nuances of the issue. They seemed skeptical of some of HPBA arguments at first but it’s far from clear how they may rule in this case. 

Our five key takeaways are:

David Chung, lead attorney
for HPBA

1. HPBA attorney Chung was on top of his game. Chung would have been the MVP player in this competition if this were a contact sport. He held up well against a series of tough questions from the judges and showed the value of an attorney who knows the issues, the technologies and the test methods well.

2. The court could rule against HPBA on a technicality. The judges questioned whether they should dismiss the case outright because HPBA may have forgotten to specify which member manufacturers it was representing, and thus lacked “standing” to bring the case. Judge Wilkins interrupted Chung very early in his presentation on this issue and Judge Pillard brought it up again later in the proceedings.

3. If the court sides with HPBA, it may remand the issue to the EPA.

Simi Bhat, attorney for the EPA

HPBA is asking the court to vacate and completely overturn the current audit provisions. However, if the court agrees with the HPBA arguments, it may be more likely to remand (send back) the rule to EPA instead of vacating it. Then, the EPA would need to undertake a rulemaking consistent with the court's opinion. If the rule is just remanded back to the agency and not vacated, the requirements remain in place until the EPA revises them in some way. If the audit provisions are impacted by the court’s opinion, EPA may need to issue some temporary guidance or a no action letter to address compliance issues in the interim.

4. The court may not rule on the core issues. The core issue is whether the EPA’s audit provisions are “arbitrary and capricious.” In other words, did the EPA provide enough substantiation to potentially revoke a stove model’s certification if it tested above 2 grams an hour in an audit. In essence, HPBA is saying that if EPA had allowed a stove to emit up to 3 grams in an audit test, for example, the EPA’s regulation would be more reasonable. The EPA contends that a margin is already built in and manufactures have various mechanisms available to them if they exceed 2 (or 2.5) grams in an audit. However, there are a range of legal issues that the court could rule on, in favor of one side or another.

5. When will this be resolved? It usually takes about 2-6 months from oral argument for the DC Circuit to issue an opinion. Then there could be another rulemaking, or the audit provisions may remain intact.

The Alliance for Green Heat supports an audit program that focuses on periodic audits of the highest volume wood and pellet heater models and where heaters are not decertified for testing at slightly above the relevant emission standard but only for substantial emissions above the standard.

More about this litigation:

Hearth industry lists grounds for suit against EPA (June 2015)

EPA and States vigorously defend audit provisions (Sept. 2020)