Texas, Wyoming, And Industry Groups Ask DC Circuit To Rehear SIP Rule Case

Over the last two years, the D.C. Circuit has dismissed several challenges to EPA's GHG rules, including lawsuits brought by states and industry groups relating to the timing and methods employed by EPA in requiring revisions to State Implementation Plans ("SIPs") to incorporate GHGs. As previously reported in The Climate Report, in July 2013, the U.S. Court of Appeals for the District of Columbia dismissed challenges to the SIP rules brought by Texas, Wyoming, and industry groups because the petitioners lacked Article III standing. See Texas v. EPA, 726 F.3d 180 (D.C. Cir. 2013). In reaching its decision, the D.C. Circuit concluded that Prevention of Significant Deterioration ("PSD") permitting requirements in Clean Air Act § 165(a) are self-executing and apply directly to major stationary sources irrespective of an applicable SIP. Accordingly, the court held, among other things, that vacating the challenged rules would not redress the states' alleged injury to their quasi-sovereign interests in regulating air quality within their borders because the claimed injury was caused by the automatic operation of Section 165(a), rather than the challenged rules.

In September 2014, the states and industry groups petitioned the D.C. Circuit for a rehearing and requested that the D.C. Circuit reverse its earlier...