Wednesday, March 28, 2012

Luminant Generation Company, et al v. U.S. EPA

Mar 27: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-60891. On Petition for Review of an Order of U.S. EPA. The Appeals Court explains that the case requires us to review the EPA's disapproval, more than three years after the time within which it was statutorily required to act, of three regulations promulgated by the State of Texas. Pursuant to Texas's duty under the Clean Air Act (CAA), to adopt and administer a statewide plan for implementing Federal air quality standards, the regulations provide for a standardized permit for certain projects that reduce or maintain current emissions rates. The Appeals Court ruled, "Because the EPA had no legal basis on which to disapprove those regulations, we vacate the agency's disapproval of Texas's regulations and remand with instructions."
    In a lengthy conclusion, the Appeals Court said, "This chapter in regulatory history has lasted almost two decades. Texas submitted its first two standard permits for PCPs [pollution control projects] to the EPA for approval in 1994. Texas made various amendments to these permits over the years, and promptly submitted each amendment to the EPA. The most recently amended version is the PCP Standard Permit at issue in this case. Despite an eighteen month statutory deadline, the EPA did not take action on any of these submissions until September 15, 2010. At that late date, the EPA disapproved the PCP Standard Permit -- submitted four and a half years earlier -- based on its purported nonconformity with three extra-statutory standards that the EPA created out of whole cloth. Moreover, the EPA did this in the context of a cooperative federalism regime that affords sweeping discretion to the states to develop implementation plans and assigns to the EPA the narrow task of ensuring that a state plan meets the minimum requirements of the Act. The EPA applied these unauthorized standards to disapprove of a state program for projects that reduce air pollution and that, under the Act's plain terms, is subject to only the most minimal regulation.
    "Because the EPA waited until more than three years after the statutory deadline to act on Texas's submission, we order the EPA to reconsider it expeditiously. On remand, the EPA must limit its review of Texas's regulations to ensuring that they meet the minimal CAA requirements that govern SIP revisions to minor NSR, as set forth in 42 U.S.C. § 7410(a)(2)(C) and § 7410(l). If Texas's regulations satisfy those basic requirements, the EPA must approve them, as § 7410(k)(3) requires. That is the full extent of the EPA's authority in the SIP-approval process because that is all the authority that the CAA confers. See La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986) ('[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.').
    "We vacate the EPA's disapproval of 30 Tex. Admin. Code §§ 116.610(a), 116.610(b), and 116.617 and remand with instructions that the EPA reconsider these regulations and approve or disapprove them most expeditiously."
    Access the complete opinion (click here). [#Air, #CA5]
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