CLIMATE:

EPA to defend its greenhouse gas emission rules tomorrow

U.S. EPA will return to court tomorrow to defend its regulations for fighting climate change from multiple challenges by Texas and industry groups.

At issue before the U.S. Court of Appeals for the District of Columbia Circuit are two cases that center on EPA's implementation of greenhouse gas air emissions standards under the Clean Air Act after the agency determined the emissions endangered public health.

Both center on EPA's efforts to review state permitting programs for planned major facilities to ensure that greenhouse gas emissions were considered along with other pollutants regulated under the Clean Air Act.

In one case, Texas, Wyoming and several major industry groups argue that EPA rushed its review of the so-called state implementation plans, or SIPs, and "coerced" states into complying by threatening a ban on construction of new facilities.

In the second, Texas is challenging EPA's decision to retroactively revoke its SIP because the Lone Star State refused to add greenhouse gases to its permitting program.

The petitions are part of a concerted effort by opponents of EPA greenhouse gas regulations to win back some of the territory they have lost since 2007, when the Supreme Court ruled in Massachusetts v. EPA that EPA must consider regulating heat-trapping emissions under the Clean Air Act, as well as subsequent similar rulings.

The first case comes from a broad industry coalition, including the Utility Air Regulatory Group and National Mining Association. When EPA began regulating greenhouse gases under the Clean Air Act in 2010, the agency issued its "tailoring rule" -- providing a way for large stationary emitters to be phased into coverage. A key component of those regulations was ensuring that planned facilities obtain pre-construction prevention of significant deterioration, or PSD, permits.

For many states, EPA issues those permits, ensuring that the facilities install the best available control technology for pollutants included in the Clean Air Act. For 13 states, local authorities held the permitting authority.

To ensure that the state permitting programs were capable of also taking greenhouse gas emissions into its permitting process, EPA issued a "SIP call" in December 2010 to review them and gave states just a few weeks to comply.

For most of those 13 states, EPA found the programs capable of tweaks to include greenhouse gases. For a few, EPA said the SIPs were insufficient and revoked their permitting authority.

Texas, Wyoming and the industry groups are arguing that EPA moved too quickly. They contend that states should have been given three years to revise and provide public notice and comment.

"EPA's SIP call and accompanying actions," the groups wrote in court documents, "sought, through unlawful intimidation, to coerce states to consent to [greenhouse gas] regulations under the PSD program immediately, in disregard of the [Clean Air Act's] procedures and the agency's own rules."

The second case stems directly from the first. Texas refused to comply with the SIP call, insisting that it shouldn't regulate greenhouse gases and pursuing various challenges in court. When it didn't submit revisions, EPA revoked permitting authority granted to Texas roughly 20 years ago.

Texas contends that EPA violated the Clean Air Act by assuming new authority to accomplish its climate agenda.

If the court doesn't strike down EPA's action, it "could legitimize EPA in the future to divest states of their lawful regulatory authority whenever it is convenient or conducive to EPA's policy goals."

EPA's defense

EPA has steadfastly defended itself in both cases, arguing that the Clean Air Act expressly grants authority to review SIPs and revoke them if they are found inadequate.

In the broad SIP call case, EPA is also questioning whether the petitioners have standing because, the agency contends, they haven't been harmed by greenhouse gas regulations and industry in fact benefits from an authority that can lawfully grant PSD permits for construction.

An issue that is likely to come up, however, is whether EPA's SIP call process amounted to an effective ban on new construction. The industry groups contend that EPA looked outside the Clean Air Act to unlawfully implement a ban by forcing states to comply with the new greenhouse gas regulations.

In a subtle difference, EPA claims there is no other way to read the Clean Air Act. The statute, the agency argues, expressly states that construction may not occur if no permit has been issued from a proper authority.

Similarly, in the Texas case, EPA is questioning whether the state has standing and is asking Texas to prove it has been harmed. The agency is also contending that the public comment argument from Texas is moot because EPA didn't take any action during the time frame in question.

The cases will be argued tomorrow before Judges Judith Rogers, David Tatel and Brett Kavanugh. Rogers and Tatel are Clinton appointees and sat on a panel that upheld the primary EPA greenhouse gas rules last year (Greenwire, June 26, 2012). After that ruling, Kavanaugh, a George W. Bush appointee, criticized EPA's greenhouse gas rules when the D.C. Circuit declined to rehear the case.

But environmentalists say the petition revisits many of the same issues that were settled last June in that case.

Vickie Patton, general counsel for the Environmental Defense Fund, noted that one of the judges who ruled in EPA's favor last June was Judge David Sentelle, a Reagan appointee. That shows broad support for the rule at the appeals court level, Patton said, and might indicate that the states' petition will also face long odds.

Patton said the state of Texas had every opportunity to administer the rule itself, but it "refused, declined, obstructed in carrying out the nation's clean air laws."

That sentiment was echoed by Sean Donahue of Donahue & Goldberg, who represents environmentalists who have intervened in the cases. But he added that a major sticking point for the agency continues to be Texas' outright refusal to regulate greenhouse gases.

"Some Clean Air Act cases are where state has one way of doing things and the federal government has another, so there's a fight about that," Donahue said. "This is a case where a state has very candidly said, 'We don't want to do anything.'"

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