Jessica M. Karmasek Jul. 30, 2013, 5:00pm

WASHINGTON (Legal Newsline) -- A federal appeals court ruled last week that a coalition of states and industry groups lacked standing to challenge the federal government's rules related to greenhouse gas permitting requirements.

In a 2-1 ruling Friday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled against the coalition -- including Texas, Wyoming, the Utility Air Regulatory Group and the National Mining Association.

The cases, which were consolidated in the D.C. Circuit's ruling, challenged the rules promulgated by the federal Environmental Protection Agency in response to a 2007 U.S. Supreme Court holding that greenhouse gases qualify as an "air pollutant" under the federal Clean Air Act.

Last year, the D.C. Circuit upheld the agency's regulation in the so-called "tailpipe rule" of greenhouse gases emitted by cars and light trucks under Title II of the CAA.

The court in Coalition for Responsible Regulation Inc. v. EPA also upheld the agency's determination that the rule triggered permitting requirements for new major stationary sources of greenhouse gases under Part C of Title I of the CAA.

The D.C. Circuit also dismissed for lack of standing challenges by states and industry groups to "timing and tailoring rules" that ameliorated the burden of Part C permitting for greenhouse gases.

At issue this time around is implementation of the Part C permitting requirements in states without implementation plans for greenhouse gases as of Jan. 2, 2011, when the emission standards in the tailpipe rule took effect.

Texas, Wyoming and the industry groups petitioned the D.C. Circuit for review of five rules, all of which are designed to ensure that a permitting authority existed to issue the required greenhouse gas permits.

They contend the rules are based on an "impermissible interpretation" of the Part C Prevention of Significant Deterioration Program, and violate the CAA's "orderly process" for revision of state implementation plans, or SIPs.

"The court on more than one occasion has interpreted CAA § 165(a) unambiguously to 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," Judge Judith Rogers wrote for the D.C. Circuit.

"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."

She continued in the 36-page ruling, "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."

Judge David Tatel joined Rogers in the opinion. Judge Brett Kavanaugh filed a dissent.

Click here to read the court's opinion and Kavanaugh's dissent.

From Legal Newsline: Reach Jessica Karmasek by email at

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