ELR Citation: 41 ELR 20100
No(s). 10-60961 (5th Cir. Feb 24, 2011)

The Fifth Circuit granted EPA's request to transfer to the D.C. Circuit Texas' petition for review of the Agency's call for revisions to the state's SIP because its prevention of significant deterioration (PSD) provisions fail to control greenhouse gases. Greenhouse gases have not always been part of the PSD program, and states' SIPs thus have not always been required to regulate them. But after EPA determined that greenhouse gases were part of the PSD program, it found that any SIPs that fail to regulate them, including Texas' SIP, were inadequate. The CAA provides that challenges to nationally applicable regulations promulgated under the Act must be filed in the D.C. Circuit. The SIP call at issue in this case makes its national reach clear: it avowedly applies to all states whose implementation plans do not apply the Act's PSD program to greenhouse-gas emitting sources. Further, the 13 states affected by the SIP call span seven different EPA regions, seven different federal circuits, and four different time zones. Thus, the SIP call is not regional. It is a nationally applicable regulation, and the petition challenging it should be heard before the D.C. Circuit.