(CN) - The D.C. Circuit declined to stop enforcement of new rules that compel states to regulate greenhouse gases as air pollutants under the Clean Air Act.
After the U.S. Supreme Court held in 2007 with Massachusetts v. EPA that greenhouse gases qualify as an air pollutant under the Clean Air Act, the Environmental Protection Agency ordered states to set up a permitting process for greenhouse gas emitters.
By 2010, the EPA found the permitting plans of 13 states to be inadequate since they lacked a provision to include carbon dioxide as a pollutant.
Of the 13 states that lacked an adequate state implementation plan, or SIP, Texas alone refused to identify when it planned to comply with the new regulations. In fact, in 2010 the Texas Attorney General Greg Abbot sent a letter to the EPA stating that Texas had "neither the authority nor the intention of interpreting, ignoring or amending its laws in order to compel the permitting of greenhouse gas emissions."
In response, the agency ordered Texas to comply by Dec. 1, 2011, and advised the state that it could take legal action to ensure "that greenhouse gas sources in Texas, as in every other state in the country, have available a permitting authority to process their permit applications."
Texas and Wyoming, another of the 13 that had been faulted for an inadequate plan, sued the EPA in 2012. They claimed that the Clean Air Act gives states the primary role in adopting and revising implementation plans, but that the EPA has imposed regulations as part of its "greenhouse gas regulatory agenda."
Additionally, Texas argued that the EPA failed to give the state the required three years to comply with the greenhouse gas regulations. It said the EPA had threatened to take over part of the state's air permitting program immediately or impose a construction moratorium on the Texas businesses if the state did not agree to comply immediately with the regulations.
Abbot blasted the "unelected, unaccountable bureaucrats at the EPA" for "flouting the law by denying Texas the opportunity to manage its own air permitting program."
"The EPA's unlawful scheme threatens Texas jobs and businesses by imposing costly and unnecessary greenhouse gas regulations immediately and improperly," the Texas prosecutor said at the time. "These expensive mandates do little to make our air safer or to control the global warming the EPA insists is threatening our country, while doing great damage to our energy independence and economic recovery."
A divided three-judge panel of the D.C. Circuit concluded last week, however, that the Clean Air Act "unambiguously requires a PSD [prevention of significant deterioration of air quality] permit setting forth emission limitations for each pollutant subject to regulation under the act before a major emitting facility may be constructed, even when the applicable SIP has not been updated to include requirements for newly regulated pollutants."
Three times the court has interpreted the act as prohibiting the unpermitted construction of stationary pollution sources, according to the ruling.
Once the EPA's "Tailpipe Rule" added greenhouse gases to the air pollutants list, the PSD program automatically applied to those facilities, the appellate judges added.