State v. Envtl. Prot. Agency, Nos. 10–1425

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: ROGERS
• Citation: 726 F.3d 180
• Parties: State of TEXAS, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Conservation Law Foundation, et al., Intervenors. Utility Air Regulatory Group, Petitioner v. Environmental Protection Agency, Respondent Wyoming Mining Association and State of Connecticut, Intervenors.
• Docket Number: 11–1062,11–1291,11–1040,11–1287,11–1037,11–1039,11–1078,11–1128,11–1289,Nos. 10–1425,11–1249,11–1059,11–1293.,11–1077,11–1288,11–1041,11–1063,11–1290,11–1060,11–1247,11–1292,11–1076,11–1250,11–1075,11–1038
• Decision Date: 26 July 2013

726 F.3d 180

State of TEXAS, et al., Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent
Conservation Law Foundation, et al., Intervenors.
Utility Air Regulatory Group, Petitioner
v.
Environmental Protection Agency, Respondent Wyoming Mining Association and State of Connecticut, Intervenors.

Nos. 10–1425, 11–1062, 11–1128, 11–1247, 11–1249, 11–1250, 11–1037, 11–1038, 11–1039, 11–1040, 11–1041, 11–1059, 11–1060, 11–1063, 11–1075, 11–1076, 11–1077, 11–1078, 11–1287, 11–1288, 11–1289, 11–1290, 11–1291, 11–1292, 11–1293.

United States Court of Appeals,
District of Columbia Circuit.

Argued May 7, 2013.
Decided July 26, 2013.

[726 F.3d 181]

On Petitions for Review of Final Actions of the United States Environmental Protection Agency.
Mark W. DeLaquil argued the cause for petitioners. With him on the briefs were David B. Rivkin Jr., Andrew M. Grossman, Matthew G. Paulson, Roger R. Martella Jr., F. William Brownell, Henry V. Nickel, Norman W. Fichthorn, Allison D. Wood, Charles H. Knauss, Shannon S. Broome, Greg Abbott, Attorney General, Office of the Attorney General for the State of Texas, J. Reed Clay Jr., Special Assistant and Senior Counsel to the Attorney General, John A. Riley, and Christopher C. Thiele. Bill Cobb, Deputy Attorney General for Civil Litigation, Office of the Attorney General for the State of Texas, entered an appearance.

Madeline P. Fleisher, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were Howard J. Hoffman, Elliott Zenick, and Sara Schneeberg, Attorneys, U.S. Environmental Protection Agency. Thomas A. Lorenzen and Perry M. Rosen, Attorneys, U.S. Department of Justice, entered appearances.

Sean H. Donahue argued the cause for intervenors. With him on the brief were Joanne M. Spalding, Nathan Matthews, Vickie L. Patton, Pamela Campos, Peter Zalzal, Ann Brewster Weeks, Lisa J. Zak, and David Doniger. Meleah A. Geertsma and Craig H. Segall entered appearances.

David B. Rivkin Jr. argued the cause for petitioner State of Texas. Nancy E. Vehr, Attorney, Office of the Attorney General for the State of Wyoming, argued the cause for the State of Wyoming. With them on the briefs were Greg Abbott, Attorney General, Office of the Attorney General for the State of Texas,

[726 F.3d 182]

J. Reed Clay Jr., Special Assistant and Senior Counsel to the Attorney General, Jay Jerde, Deputy Attorney General, Office of the Attorney General for the State of Wyoming, Jeremiah I. Williamson, Assistant Attorney General, and Mark W. DeLaquil and Andrew M. Grossman.

Henry V. Nickel argued the cause for Non–State Petitioners and Intervenor–Petitioner. With him on the briefs were F. William Brownell, Norman W. Fichthorn, Allison D. Wood, Peter S. Glaser, Charles H. Knauss, Shannon S. Broome, Matthew G. Paulson, Roger R. Martella, and Eric Groten. Mark E. Nagle entered an appearance.

Madeline P. Fleisher and Matthew R. Oakes, Attorneys, U.S. Department of Justice, argued the causes for respondents. With them on the brief were Howard J. Hoffman, Attorney, United States Environmental Protection Agency, Elliott Zenick, Assistant General Counsel, and Sara Schneeberg, Attorney. Perry M. Rosen, Attorney, U.S. Department of Justice, entered an appearance.

George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Kimberly P. Massicotte and Scott N. Koschwitz, Assistant Attorneys General, Vickie L. Patton, Pamela Campos, Peter M. Zalzal, Sean H. Donahue, Joanne M. Spalding, Nathan Matthews, David D. Doniger, Meleah A. Geertsma, Ann Brewster Weeks, and Lisa J. Zak were on the briefs for intervenors in support of respondent.

Before: ROGERS, TATEL and KAVANAUGH, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.
Dissenting opinion by Circuit Judge KAVANAUGH.

ROGERS, Circuit Judge:

These cases present another set of challenges to rules promulgated by the Environmental Protection Agency (“EPA”) in response to the Supreme Court's holding that greenhouse gases unambiguously qualify as an “air pollutant” under the Clean Air Act (“the Act” or “CAA”). See Massachusetts v. EPA, 549 U.S. 497, 528–32, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). Last year, in Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C.Cir.2012) (“Coalition ”), this court upheld EPA's regulation in the Tailpipe Rule of greenhouse gases emitted by cars and light trucks under Title II of the CAA, id. at 116–29, 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, id. at 132–44. 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. Id. at 144–48.

At issue here is implementation of the Part C permitting requirements in several States without implementation plans for greenhouse gases as of January 2, 2011, when the emission standards in the Tailpipe Rule took effect. The States of Texas and Wyoming and industry groups petition 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, CAA §§ 160–169, and violate the Act's “orderly process” for revision of state implementation plans (“SIPs”) pursuant to CAA § 110. The court on more than one occasion has interpreted CAA § 165(a) unambiguously to

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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. 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.

We begin in Part I with a brief overview of relevant provisions of the Act and the regulatory and procedural background of the challenged rules. In Part II, we address CAA § 165(a), which underlies the rules, and petitioners' interpretation of the Part C permitting requirements. In Part III, we turn to the challenged rules and must initially address whether petitioners have Article III standing to challenge them.

I.

Title I, Part A, of the Act addresses air quality and emissions limitations. It requires EPA to establish National Ambient Air Quality Standards (“NAAQS”) that set the maximum permissible levels of pollutants for which air quality criteria have been issued. CAA § 109, 42 U.S.C. § 7409. States, in turn, are required to develop SIPs to determine, based on local conditions and needs, how to implement the NAAQS and related requirements. CAA § 110, 42 U.S.C. § 7410. Section 110 provides the framework for SIP development and submission by States to EPA, “within 3 years (or such shorter period as [EPA] may prescribe)” of promulgation of a NAAQS. CAA § 110(a)(1), 42 U.S.C. § 7410(a)(1). Among other things, it requires that a SIP “includ [e] a permit program as required in parts C and D of this subchapter” and “meet the applicable requirements of ... Part C.” CAA § 110(a)(2)(C), (J), 42 U.S.C. § 7410(a)(2)(C), (J). EPA must approve a SIP “if it meets all of the applicable requirements of this chapter [i.e., Chapter 85 Air Pollution Prevention and Control].” CAA § 110(k)(3), 42 U.S.C. § 7410(k)(3). But if EPA determines that a previously approved SIP is “substantially inadequate to attain or maintain the [NAAQS] ... or to otherwise comply with any requirement of this chapter, [EPA] shall require the State to revise the plan as necessary to correct such inadequacies.” CAA § 110(k)(5), 42 U.S.C. § 7410(k)(5). Likewise, if EPA determines its approval or disapproval of a SIP “was in error, [it] may in the same manner as the approval [or] disapproval ... revise such action as appropriate without requiring any further submission from the State.” CAA § 110(k)(6), 42 U.S.C. § 7410(k)(6). When EPA disapproves a SIP “in whole or in part” or “finds that a State has failed to make a required submission,” EPA must promulgate a federal implementation plan (“FIP”) within two years. CAA § 110(c)(1), 42 U.S.C. § 7410(c)(1).

Parts C and D of Title I address pre-construction review requirements for new major stationary sources of air pollution. Part C, Prevention of Significant Deterioration of Air Quality (“PSD”), applies to areas that have attained the air quality standards for any criteria pollutant. CAA §§ 160–169, 42 U.S.C. §§ 7470–79. It bars construction of a “major emitting facility” without a permit that includes emission limitations and requires the proposed

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facility to use “the best available control technology for each pollutant subject to regulation under this chapter emitted from, or which results from, such facility.” CAA § 165(a)(4), 42 U.S.C. § 7475(a)(4). Part C also provides that EPA “shall ... take such measures ... as necessary to prevent the construction or modification of a major emitting facility which does not conform to the requirements of this part....” CAA § 167, 42 U.S.C. § 7477. A “major emitting facility” is a stationary source that emits, or has the potential to emit, either 100 tons or 250 tons per year of “any air pollutant.” CAA § 169(1), 42 U.S.C. § 7479(1). Part D, Plan Requirements for Nonattainment Areas, applies to areas that exceed the air quality standards for a NAAQS pollutant, CAA §§...