Coalition for Responsible Regulation v. EPA

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The D.C. Circuit Court of Appeals issued two orders denying—without comment—a rehearing or rehearing en banc of its judgment remanding but not vacating portions of EPA’s permitting regulations for greenhouse gas emissions from stationary sources. In the petition for rehearing, the petitioners had argued that the D.C. Circuit should have vacated EPA’s regulations requiring sources subject to the Prevention of Significant Deterioration permit program solely due to their emissions of other pollutants to use best available control technology (BACT) to reduce greenhouse gas emissions.

After the D.C. Circuit determined in April 2015 that the Supreme Court’s decision in Utility Air Regulatory Group v. EPA did not require vacating EPA’s permitting regulations for greenhouse gas emissions from stationary sources, petitioners asked for panel rehearing and rehearing en banc. The petitioners contended that the D.C. Circuit should have vacated EPA’s regulations requiring sources subject to the Prevention of Significant Deterioration permit program solely due to their emissions of other pollutants to use best available control technology (BACT) to reduce greenhouse gas emissions. The petitioners argued that the Supreme Court in UARG v. EPA had held that these BACT provisions were defective because, among other reasons, they did not establish a de minimis level of greenhouse gas emissions below which BACT would not be required. It therefore was inappropriate, the petitioners said, for the D.C. Circuit to allow EPA “merely to ‘consider,’ per its own ruminations, whenever it feels so inclined,” the extent to which UARG v. EPA required revisions to the BACT provisions. The petitioners also contended that the D.C. Circuit’s amended judgment was at odds with its own precedent concerning when remand without vacatur is appropriate.

In an order governing further proceedings after the Supreme Court’s 2014 decision in Utility Air Regulatory Group v. EPA, the D.C. Circuit accepted EPA’s view that UARG v. EPA did not require EPA to start from scratch to establish a greenhouse gas permitting regime for stationary sources. Instead, the D.C. Circuit ordered EPA to act “as expeditiously as practicable” to rescind Clean Air Act regulations that required Prevention of Significant Deterioration (PSD) and Title V permits solely based on a source’s greenhouse gas emissions. The court also ordered EPA to rescind regulations that would have required EPA to consider lowering the greenhouse gas emissions thresholds for permitting and to “consider whether any further revisions to its regulations are appropriate in light of UARG v. EPA.” On April 30, the EPA Administrator signed a direct final rule that authorized rescission of PSD permits upon requests from applicants who demonstrate that they would not have been subject to PSD permitting but for their greenhouse gas emissions. The regulation is also to be published as a proposed rule in case adverse comments are received.

On October 21, 2014, parties weighed in on how the D.C. Circuit should proceed after the Supreme Court’s decision. Industry groups, along with states and public interest groups aligned with industry, argued that greenhouse gas emissions were not and could not be subject to Prevention of Significant Deterioration (PSD) or Title V requirements without further EPA rulemaking. EPA asked that its PSD and Title V regulations be vacated only to the extent that they required permits where greenhouse gases were the only pollutant that exceeded applicable major source thresholds or required EPA to consider phasing sources into the permitting programs that met lower greenhouse gas emission thresholds. EPA (and also environmental organization respondent-intervenors) said that best available control technology requirements for greenhouse gases should continue to apply—without need for further rulemaking—to sources whose emissions of other pollutants met the applicable thresholds.

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The D.C. Circuit Court of Appeals denied a motion to rehear lawsuits challenging EPA’s greenhouse gas regulations, voting 6-2 against hearing the case en banc, holding that there was no basis for such review.

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The D.C. Circuit dismissed all challenges to EPA’s greenhouse gas regulations. The ruling upheld four aspects of the rules, including the endangerment finding rule, the tailpipe rule, the tailoring rule, and the timing rule. In particular, the court concluded that the endangerment finding and tailpipe rule were neither arbitrary nor capricious; EPA’s interpretation of the governing CAA provisions was unambiguously correct; and no petitioner had standing to challenge the timing and tailoring rules. The court dismissed for lack of jurisdiction all petitions for review of the timing and tailoring rules, and denied the remainder of the petitions. A blog entry analyzing the decision is available <a href="http://blogs.law.columbia.edu/climatechange/2012/06/28/d-c-court-of-appeals-dismisses-challenges-to-epa-climate-regulation/">here</a>.