As previously reported in The Climate Report, the states of Texas and Wyoming, along with industry groups, challenged in the U.S. Court of Appeals for the District of Columbia U.S. EPA's plan for implementing greenhouse gas emissions regulations (State of Texas v. the United States Environmental Protection Agency, No. 10-1425). This latest dispute in a series of legal skirmishes revolved around implementation of Part C permitting requirements in states without implementation plans for greenhouse gases as of January 2, 2011.
Texas, Wyoming, and the industry groups contended that five
rules promulgated by EPA were based on impermissible
interpretations of the Part C Prevention of Significant
Deterioration ("PSD") Program and ran afoul of the Clean
Air Act's "orderly process" for revising State
Implementation Plans ("SIPs"). Petitioners acknowledged
that states were obligated to update their SIPs to incorporate
greenhouse gas emissions into their PSD programs but raised
procedural and substantive challenges to the timing and methods
employed by EPA in requiring revisions to SIPs. Petitioners,
moreover, argued that the Clean Air Act permitted states to issue
lawful PSD permits under the previously approved SIP during the
three-year period to which states were entitled to revise their
SIPs. Oral argument was heard on May 7, 2013.
On July 26, 2013, the three-judge panel consisting of Judges
Rogers, Tatel, and Kavanaugh, in a 2–1 ruling, dismissed the
petitions for lack of jurisdiction, finding that the states and the
industry groups lacked Article III standing to challenge the rules.
The majority of the court concluded that, pursuant to the plain
text of Clean Air Act §§ 165(a) and 167, PSD permitting
requirements are self-executing and apply directly to major
stationary sources irrespective of an applicable SIP. Specifically,
the court held that the industry petitioners failed to show
sufficient injury-in-fact to sustain a challenge of the rules
because the challenged rules actually mitigate an injury that
industry petitioners would have otherwise sustained by not being
able to obtain lawful PSD permits until the states revised their
SIPs. As to the state petitioners, the court held that vacating the
challenged rules would not redress the state's alleged injury
to their quasi-sovereign interests in regulating air quality within
their borders because the claimed injury was caused by the
automatic operation of Section 165(a), rather than the challenged
rules.
Judge Kavanaugh dissented, arguing that the EPA rules should be
vacated because a long-standing EPA regulation gives states three
years to revise their SIPs to incorporate new EPA regulations, and
the EPA rules at issue stripped the states of the prescribed period
to update their SIPs to include greenhouse gases. In addition,
Judge Kavanaugh argued that these states should have been allowed
to issue PSD permits under their old SIP during the three-year
interim period.
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