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Media Alerts - State of Texas v. EPA & Utility Air Regulatory Group v. EPA
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July 26, 2013
  State of Texas v. EPA & Utility Air Regulatory Group v. EPA
Headline: DC Circuit Holds That Part C PSD Permitting Requirements are Unambiguously Self-Executing and Apply Directly to Major Stationary Sources Irrespective of the Applicable State Implementation Plans

Area of Law: Environmental law

Issue(s) Presented: Whether § 165(a) of the Clean Air Act, which requires issuance of a Part C PSD permit before construction of a major emitting facility, is self-executing and therefore allows the EPA to impose federal regulations on any state that does not implement its requirements within the statutory timeframe?

Brief Summary: In the combined cases, State of Texas v. EPA and Utility Air Regulatory Group v. EPA, Texas, Wyoming, and several industry groups raised a variety of objections to EPA permitting requirements for new major stationary sources of greenhouse gases under Part C of Title I of the Clean Air Act (CAA). Recent expansion of EPA's authority to regulate greenhouse gases emitted by cars and light trucks under Title II of the CAA has resulted in significant new regulatory requirements for stationary sources of greenhouse gasses. In particular, state programs for issuing Prevention of Significant Deterioration permits before major emitting facilities can be constructed must be updated to include greenhouse gasses in those programs. In order to ensure that all states complied with the new requirements, EPA enacted new rules imposing a Federal Implementation Plan (FIP) on states that failed to incorporate new permitting regulations for PSDs into their State Implement Plans (SIPs) by January 2, 2011.

While conceding EPA's authority to compel states to update their SIPs in accordance with the new regulations, Petitioners challenged the method and timing by which EPA required the updates, arguing that, in the absence of the challenged rules, states would have been allowed at least three years to update their SIPs and were authorized under section 165(a) of the CAA to issue valid PSD permits in the interim. EPA argued that, under the same section of the CAA, the permitting requirements were self-executing and went into effect as soon as EPA's authority to regulate greenhouse gasses was established, triggering an immediate requirement that states update their SIPs or lose the ability to issue PSD permits. Therefore, the challenged rules benefitted Petitioners by ensuring that they maintained their authority to issue valid PSD permits.

The D.C. Circuit sided with EPA, determining, based on the plain language of CAA § 165(a) that the statute was self-executing and unambiguously required a PSD permit before a major emitting facility could be constructed, notwithstanding the status of a state's SIP. Accordingly, EPA can impose regulations on a state if it does not meet the timeline for SIP revisions, in order to ensure that it maintains its permitting authority.

In dissent, Judge Kavanaugh argued that states should have been allowed three years to update SIP requirements before federal intervention was warranted.

For the full text of this opinion, please visit

Panel (if known): Rogers, Tatel, and Kavanaugh

Argument Date (if known): May 7, 2013

Date of Issued Opinion: July 26, 2013

Docket Number: 10-1425, 11-1037

Decided: July 26, 2013

Case Alert Author: Tiffany Kelley

Counsel (if known):

Author of Opinion: Rogers

Dissent by: Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/26/2013 05:37 PM     DC Circuit  

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