ELR Citation: 43 ELR 20170
No(s). 10-1425, 11-1037 (D.C. Cir. Jul 26, 2013)

The D.C. Circuit denied states' and industry groups' petitions challenging EPA rules establishing CAA permitting requirements in states that do not have implementation plans for greenhouse gases. The rules were designed to ensure that a permitting authority was available to issue the required greenhouse gas permits. Industry groups, Texas, and Wyoming filed petitions for review, arguing that the rules are based on an impermissible interpretation of the CAA's prevention of significant deterioration (PSD) program and that they violate the Act's SIP revision process under CAA §110. The petitioners did not dispute that states had to update their SIPs to incorporate greenhouse gases into their PSD programs. Instead, they challenged the method and timing by which EPA required SIP revisions. But CAA §165(a), as reinforced by CAA §167, unambiguously prohibits the construction of any major emitting facility without a PSD permit addressing newly regulated pollutants, regardless of whether the applicable SIP has been updated. Thus, under the plain text of CAA §165(a) and §167, PSD permitting requirements are unambiguously self-executing with respect to newly regulated pollutants, and they apply directly to major stationary sources irrespective of the applicable SIP. Accordingly, the industry petitioners failed to show how they have been injured in fact by rules enabling issuance of the necessary permits. The state petitioners likewise failed to show how vacating the rules would redress their purported injuries. The court therefore dismissed the petitions for lack of jurisdiction.