Appeals court rules for EPA, against power industry in GHG case

A three-judge panel at the U.S. Court of Appeals for the D.C. Circuit on July 26 ruled for the Environmental Protection Agency and against states like Texas over EPA authority under the Clean Air Act to impose greenhouse gas emissions standards.

The combined cases covered by the decision present another set of challenges to rules promulgated by the EPA in response to the Supreme Court’s holding that greenhouse gases unambiguously qualify as an “air pollutant” under the Clean Air Act in a landmark 2007 ruling related to vehicle tailpipe emissions.

Last year, in Coalition for Responsible Regulation Inc. v. EPA, the appeals court upheld EPA’s regulation in the Tailpipe Rule of greenhouse gases emitted by cars and light trucks under Title II of the CAA, 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. 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.

At issue in the case decided July 26 is implementation of the Part C permitting requirements in several states without implementation plans for greenhouse gases as of Jan. 2, 2011, when the emission standards in the Tailpipe Rule took effect. The states of Texas and Wyoming and industry groups petitioned 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, and violate the Act’s “orderly process” for revision of state implementation plans (SIPs) pursuant to CAA Section 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,” said the July 26 ruling. “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.”

The industry petitioners involved in this case include the Utility Air Regulatory Group, National Mining Association, coal producer Peabody Energy (NYSE: BTU), Great Northern Project Development LP, Rosebud Mining, Alpha Natural Resources (NYSE: ANR), Chase Power Development LLC, Texas Chemical Council and Texas Association of Business.

In this case, EPA issued new regulations governing emissions of greenhouse gases, requiring that in turn that states revise the portions of their SIPs incorporating the PSD program. EPA set short deadlines for states to update their SIPs. Texas and Wyoming did not meet their deadlines, and EPA imposed federal implementation plans (FIPs) for those states.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.