Appendix B 

EPA’s Evaluation of the June 23, 2014 United States Supreme Court Decision on Green 

House Gas emissions on infrastructure SIP reviews 

With respect to the infrastructure elements contained in Section 110(a)(2)(C) and (J), EPA 

interprets the Clean Air Act to require each state to make an infrastructure SIP submission for a 

new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting 

program meeting the current requirements for all regulated NSR pollutants. One requirement of 

Section 110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the air agency has a complete 

PSD permitting program correctly addressing all regulated NSR pollutants. Texas has shown that 

it currently has a PSD program in place that covers all regulated NSR pollutants, including 

greenhouse gases (GHGs). 

On June 23, 2014, the United States Supreme Court issued a decision addressing the application 

of PSD permitting requirements to GHG emissions. (see Utility Air Regulatory Group v. 

Environmental Protection Agency, 134 S.Ct. 2427) The Supreme Court said that the EPA may 

not treat GHGs as an air pollutant for purposes of determining whether a source is a major source 

required to obtain a PSD permit. The Court also said that the EPA could continue to require that 

PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain 

limitations on GHG emissions based on the application of Best Available Control Technology 

(BACT). In order to act consistently with its understanding of the Court’s decision pending 

further judicial action to effectuate the decision, the EPA is not continuing to apply EPA 

regulations that would require that SIPs include permitting requirements that the Supreme Court 

found impermissible. Specifically, EPA is not applying the requirement that a state’s SIPapproved PSD program require that sources obtain PSD permits when GHGs are the only 

pollutant (i) that the source emits or has the potential to emit above the major source thresholds, 

or (ii) for which there is a significant emissions increase and a significant net emissions increase 

from a modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to revise federal 

PSD rules in light of the Supreme Court opinion. In addition, EPA anticipates that many states 

will revise their existing SIP-approved PSD programs in light of the Supreme Court’s decision. 

The timing and content of subsequent EPA actions with respect to the EPA regulations and state 

PSD program approvals are expected to be informed by additional legal process before the 

United States Court of Appeals for the District of Columbia Circuit. At this juncture, EPA is not 

expecting states to have revised their PSD programs for purposes of infrastructure SIP 

submissions and is only evaluating such submissions to assure that the state’s program correctly 

addresses GHGs consistent with the Supreme Court’s decision. 

EPA has previously approved Texas SIP revisions submitted to align the state’s PSD program 

rules for GHGs with federal requirements. At present, EPA has determined the Texas SIP is 

sufficient to satisfy the infrastructure elements of Sections 110(a)(2)(C), part of (D)(i)(II), and (J) 

with respect to GHGs because the PSD permitting program previously approved by EPA into 

the SIP continues to require that PSD permits (otherwise required based on emissions of 

pollutants other than GHGs) contain limitations on GHG emissions based on the application of 

BACT. Although the approved Texas PSD permitting program may currently contain provisions 
that are no longer necessary in light of the Supreme Court decision, this does not render the 

infrastructure SIP submission inadequate to satisfy the infrastructure elements of Sections 

110(a)(2)(C), a portion of (D)(i)(II), and (J). The SIP contains the necessary PSD requirements 

at this time, and the application of those requirements is not impeded by the presence of other 

previously-approved provisions regarding the permitting of sources of GHGs that EPA does not 

consider necessary at this time in light of the Supreme Court decision. Accordingly, the Supreme 

Court decision does not affect EPA’s proposed approval of Texas’ infrastructure SIP as to the 

requirements of the infrastructure elements of Sections 110(a)(2)(C) and (J) or the portion of 

Section 110(a)(2)(D)(i).