CLIMATE:

Appeals court rejects Texas, industry challenge to EPA's GHG implementation rules

Federal judges today rejected arguments from Texas and industry groups that U.S. EPA unlawfully forced states to adopt its greenhouse gas rules on an inappropriately short timeline.

In two cases, the U.S. Court of Appeals for the District of Columbia Circuit held that EPA was only carrying out a "self-executing" part of the Clean Air Act that was triggered when greenhouse gases were added to the program as a pollutant.

Further, the court held in a 2-1 vote that the petitioners -- Texas, Wyoming and a host of industry groups -- had failed to show how they were harmed by EPA's deadlines for revised State Implementation Plans, or SIPs. Consequently, they lacked standing to bring the case, the court ruled.

At issue is how EPA went about implementing its greenhouse gas policies in 2010. The agency set out to ensure that states with Clean Air Act permitting authority had the capability to adequately take into account greenhouse gas emissions.

That December, the agency required those states to submit their SIP revisions for review, a process known as a SIP Call. It gave states a short window to comply with the new rules.

For most states, EPA signed off on their revisions. Texas refused to make changes, arguing that greenhouse gases should not be regulated under the Clean Air Act. The Lone Star State, as well as Wyoming, did not comply and contended that EPA was seeking to strong-arm states into adopting its climate policy.

Specifically, the states contended that EPA was threatening a construction ban until they complied.

But Judge Judith Rogers, writing for the court's majority, said the Clean Air Act clearly bars construction of new facilities if they do not obtain a permit addressing pollutant emissions.

"By its plain terms," wrote Rogers, who was appointed to the bench by President Clinton, the Clean Air Act "prohibits construction of a major emitting facility absent ... a permit."

Further, Rogers noted that "state petitioners do not assert a concrete injury based on EPA's chosen timeline."

Rogers was joined on the opinion by Judge David Tatel, another Clinton appointee.

She added that vacating the EPA rules in question would not solve Texas' problem: its disagreement over the regulation of greenhouse gases or a construction moratorium.

"To the extent these are cognizable injuries, they are caused by the Act, not the challenged rules," Rogers wrote. "[V]acatur of the rules would not restore either state's ability to issue necessary ... permits with greenhouse gas requirements for construction of major emitting facilities but would result in a construction moratorium until they submitted revised SIPs that EPA approved."

The ruling marks the second time in about a year that a major challenge to EPA's greenhouse gas regulations has been rebuffed by D.C. Circuit judges. In June 2012, a panel unanimously upheld four rules at the heart of the agency's greenhouse gas program (Greenwire, June 25, 2012).

Conservative Judge Brett Kavanaugh, however, dissented from the opinion. Another section of the Clean Air Act, he said, required EPA to give Texas three years to come up with a new SIP because a new pollutant -- greenhouse gases -- was added to the Prevention of Significant Deterioration, or PSD, program.

"In my view, this case is straightforward," wrote Kavanaugh, who was appointed by President George W. Bush. "The relevant EPA regulation plainly gives states three years to revise their SIPs whenever new pollutants, like greenhouse gases, are regulated under EPA's PSD regulations. ... During that time, states may still issue PSD construction permits."

Peter Zalzal of the Environmental Defense Fund said the ruling shows Texas' misplaced priorities when it comes to climate change.

"Instead of Texas using taxpayer dollars to litigate and obstruct clean air protections, Texas should invest in expanding its world class wind resources and building a stronger clean energy economy," he said in an email.

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