In December, 2010, EPA announced its Finding of Substantial Inadequacy and SIP Call Rule for greenhouse gas emissions. It found that the laws of 13 states do not authorize them to regulate GHG emissions as is required as of January 2, 2011, and EPA requires those states to change their laws and submit revised State Implementation Plans (SIPs) for review and approval. In the meantime, EPA will use its own Federal Implemenation Plan (FIP) to regulate GHGs. The affected states are Arkansas, Arizona, parts of California, Connecticut, Florida, Idaho, Kansas, Kentucky, Oregon, Nebraska, Nevada (Clark County), Texas, and Wyoming.
The NAM and other associations that are part of the SIP/FIP Advocacy Group have petitioned two federal appeals courts to review EPA's action. This is another step in our overall challenge to EPA's efforts to regulate greenhouse gases under the Clean Air Act. We filed comments with EPA when this action was proposed, arguing that EPA's own regulations give the states 3 years to comply with the new greenhouse gas requirements, and that the state implementation plans are not "substantially inadequate" to enforce the new requirements.
A similar case was filed in the U.S. Court of Appeals for the Fifth Circuit. It was transferred to the D.C. Circuit. On 7/6/11, the court consolidated the cases into one but denied EPA's request that it be held in abeyance pending resolution of the main challenges to their greenhouse gas regulations.
On 2/8/2012, the SIP/FIP Advocacy Group filed its main brief, arguing that the Clean Air Act requires EPA to give the states 3 years to amend their SIPs to account for greenhouse gases. EPA sought, through unlawful intimidation, to coerce states to consent to GHG regulation immediately to avoid a threatened ban on new-source construction. EPA has never acted outside of these procedures, and it should be required to follow them. Until then, we ask the court to provide that no GHG-emitting sources be subject to any PSD (Prevention of Significant Deterioration) permitting requirements.
On 5/14/2012, NAM filed a reply brief arguing that EPA’s refusal to accept State Implementation Plans is invalid. EPA thinks that states may not issue preconstruction permits addressing greenhouse gases, and that EPA must take over the state's power and issue federal implementation plans. We argued that the states continue to have permitting authority and may take the time allotted by EPA regulations to implement the new greenhouse gas requirements.
On July 26, 2013, the D.C. Circuit ruled 2 to 1 that no party had standing to challenge EPA's actions because any harm was caused by the Clean Air Act and not by EPA's actions. It found that the Act's permitting requirements are self-executing and require permits for each pollutant subject to regulation under the Act even when the applicable SIP has not been updated to include requirements for newly regulated pollutants. The petitioners did not have standing, according to the majority, because a victory for them would leave them worse off than with the rules, because there would be a construction ban in those states without a SIP for greenhouse gases. The court's ruling applies to Texas v. EPA as well.