Jul 26: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1425, consolidated with 11-1062, 11-1128, 11-1247, 11-1249, 11-1250; and 11-1037, consolidated with 11-1038, 11-1039, 11-1040, 11-1041, 11-1059, 11-1060, 11-1063, 11-1075, 11-1076, 11-1077, 11-1078, 11-1287, 11-1288, 11-1289, 11-1290, 11-1291, 11-1292, 11-1293. On Petitions for Review of Final Actions of the U.S. EPA. In this high profile case, a 2-1 majority supports EPA's greenhouse gas rules and dismisses the states and industry petitions for lack of jurisdiction
The Appeals Court explains that the cases present another set of challenges to rules promulgated by the Environmental Protection Agency (EPA) in response to the Supreme Court's holding that greenhouse gases unambiguously qualify as an "air pollutant" under the Clean Air Act (the Act or CAA). See Massachusetts v. EPA, 549 U.S. 497, 528–32 (2007). Last year, in Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012) (Coalition), the D.C. Circuit upheld EPA's regulation in the Tailpipe Rule of greenhouse gases emitted by cars and light trucks under Title II of the CAA, id. at 116–29, as well as its determination that the rule triggered permitting requirements for new major stationary sources of greenhouse gases under Part C of Title I of the CAA, id. at 132–44. The court dismissed for lack of standing under Article III of the U.S. Constitution challenges by States and industry groups to Timing and Tailoring Rules that ameliorated the burden of Part C permitting for greenhouse gases. Id. at 144–48.
The Majority says, "At issue here is implementation of the Part C permitting requirements in several States without implementation plans for greenhouse gases as of January 2, 2011, when the emission standards in the Tailpipe Rule took effect. The States of Texas and Wyoming and industry groups petition for review of five rules designed to ensure that a permitting authority existed to issue the required greenhouse gas permits. Petitioners contend the rules are based on an impermissible interpretation of the Part C Prevention of Significant Deterioration program, CAA §§ 160–169, and violate the Act's "orderly process" for revision of state implementation plans (SIPs) pursuant to CAA § 110.
"The court on more than one occasion has interpreted CAA § 165(a) unambiguously to prohibit construction or modification of a major emitting facility without a Part C permit that meets the statutory requirements with regard to each pollutant subject to regulation under the Act. Because we now hold that under the plain text of CAA § 165(a) and § 167 the permitting requirements are self-executing without regard to previously approved SIPs, industry petitioners fail to show how they have been injured in fact by rules enabling issuance of the necessary permits. State petitioners likewise fail, in the face of Congress's mandate in CAA § 165(a), to show how vacating the rules would redress their purported injuries. Accordingly, because petitioners lack Article III standing to challenge the rules, we dismiss the petitions for lack of jurisdiction. . . Accordingly, because "[p]etitioners have failed to establish that the [challenged] Rules caused them 'injury in fact,' much less injury that could be redressed by the Rules' vacatur," id. at 146, we must dismiss the petitions for lack of jurisdiction."
In a lengthy dissent, Justice Kavanaugh said in part, "In this case, EPA in effect has required all States – including those without automatically updating SIPs, such as Texas and Wyoming – to immediately update their PSD permitting process when PSD requirements are changed. That approach cannot be squared with EPA's regulation. Section 51.166(a)(6)(i) expressly allows the States without automatically updating SIPs three years to update the PSD programs in their SIPs when PSD requirements are changed. That regulation has been on the books and followed by EPA for some 30 years. EPA may now believe that the regulation is bad policy. If so, EPA should change the regulation. But until then, the regulation remains binding law. In light of the regulation, I would therefore vacate the relevant EPA orders in this case. . . "
Also, he said, "EPA did not have authority to disapprove Texas's and Wyoming's SIPs or to issue FIPs to regulate emissions of greenhouse gases in those States until the expiration of the three-year period set forth in EPA's regulation. Under that binding EPA regulation, States without automatically updating SIPs are entitled to three years to revise their SIPs to cover greenhouse gases. During that time, States have legal authority to issue valid permits under their existing SIPs. EPA's orders should therefore be vacated. For those reasons, I respectfully dissent."
Access the complete opinion and dissent (click here). [#Air, #Climate, CADC]
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