United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 7, 2013 Decided July 26, 2013

No. 10-1425

STATE OF TEXAS, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

CONSERVATION LAW FOUNDATION, ET AL.,

INTERVENORS

Consolidated with Nos. 11-1062, 11-1128, 11-1247,

11-1249, 11-1250

On Petitions for Review of Final Actions of 

the United States Environmental Protection Agency

Mark W. DeLaquil argued the cause for petitioners. With

him on the briefs were David B. Rivkin Jr., Andrew M.

Grossman, Matthew G. Paulson, Roger R. Martella Jr., F.

William Brownell, Henry V. Nickel, Norman W. Fichthorn,

Allison D. Wood, Charles H. Knauss, Shannon S. Broome, Greg

Abbott, Attorney General, Office of the Attorney General for the

State of Texas, J. Reed Clay Jr., Special Assistant and Senior

Counsel to the Attorney General, John A. Riley, and
3

Christopher C. Thiele. Bill Cobb, Deputy Attorney General for

Civil Litigation, Office of the Attorney General for the State of

Texas, entered an appearance. 

Madeline P. Fleisher, Attorney, U.S. Department of Justice,

argued the cause for respondent. With her on the brief were

Howard J. Hoffman, Elliott Zenick, and Sara Schneeberg,

Attorneys, U.S. Environmental Protection Agency. Thomas A.

Lorenzen and Perry M. Rosen, Attorneys, U.S. Department of

Justice, entered appearances. 

Sean H. Donahue argued the cause for intervenors. With

him on the brief were Joanne M. Spalding, Nathan Matthews,

Vickie L. Patton, Pamela Campos, Peter Zalzal, Ann Brewster

Weeks, Lisa J. Zak, and David Doniger. Meleah A. Geertsma

and Craig H. Segall entered appearances.

No. 11-1037

UTILITY AIR REGULATORY GROUP,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

WYOMING MINING ASSOCIATION AND STATE OF

CONNECTICUT,

INTERVENORS
4

Consolidated with Nos. 11-1038, 11-1039, 11-1040,

11-1041, 11-1059, 11-1060, 11-1063, 11-1075,

11-1076, 11-1077, 11-1078, 11-1287, 11-1288,

11-1289, 11-1290, 11-1291, 11-1292, 11-1293

On Petitions for Review of Final Actions of 

the United States Environmental Protection Agency

David B. Rivkin Jr. argued the cause for petitioner State of

Texas. Nancy E. Vehr, Attorney, Office of the Attorney General

for the State of Wyoming, argued the cause for the State of

Wyoming. With them on the briefs were Greg Abbott, Attorney

General, Office of the Attorney General for the State of Texas,

J. Reed Clay Jr., Special Assistant and Senior Counsel to the

Attorney General, Jay Jerde, Deputy Attorney General, Office

of the Attorney General for the State of Wyoming, Jeremiah I.

Williamson, Assistant Attorney General, and Mark W. DeLaquil

and Andrew M. Grossman. 

Henry V. Nickel argued the cause for Non-State Petitioners

and Intervenor-Petitioner. With him on the briefs were F.

William Brownell, Norman W. Fichthorn, Allison D. Wood,

Peter S. Glaser, Charles H. Knauss, Shannon S. Broome,

Matthew G. Paulson, Roger R. Martella, and Eric Groten. Mark

E. Nagle entered an appearance. 

Madeline P. Fleisher and Matthew R. Oakes, Attorneys,

U.S. Department of Justice, argued the causes for respondents. 

With them on the brief were Howard J. Hoffman, Attorney,

United States Environmental Protection Agency, Elliott Zenick,

Assistant General Counsel, and Sara Schneeberg, Attorney.

Perry M. Rosen, Attorney, U.S. Department of Justice, entered

an appearance.
5

George Jepsen, Attorney General, Office of the Attorney

General for the State of Connecticut, Kimberly P. Massicotte

and Scott N. Koschwitz, Assistant Attorneys General, Vickie L.

Patton, Pamela Campos, Peter M. Zalzal, Sean H. Donahue,

Joanne M. Spalding, Nathan Matthews, David D. Doniger,

Meleah A. Geertsma, Ann Brewster Weeks, and Lisa J. Zak were

on the briefs for intervenors in support of respondent.

Before: ROGERS, TATEL and KAVANAUGH, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

Dissenting opinion by Circuit Judge KAVANAUGH.

ROGERS, Circuit Judge: These cases present another set of

challenges to rules promulgated by the Environmental

Protection Agency (“EPA”) in response to the Supreme Court’s

holding that greenhouse gases unambiguously qualify as an “air

pollutant” under the Clean Air Act (“the Act” or “CAA”). See

Massachusetts v. EPA, 549 U.S. 497, 528–32 (2007). Last year,

in Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d

102 (D.C. Cir. 2012) (“Coalition”), this court upheld EPA’s

regulation in the Tailpipe Rule of greenhouse gases emitted by

cars and light trucks under Title II of the CAA, id. at 116–29, as

well as its determination that the rule triggered permitting

requirements for new major stationary sources of greenhouse

gases under Part C of Title I of the CAA, id. at 132–44. The

court dismissed for lack of standing under Article III of the U.S.

Constitution challenges by States and industry groups to Timing

and Tailoring Rules that ameliorated the burden of Part C

permitting for greenhouse gases. Id. at 144–48. 

At issue here is implementation of the Part C permitting

requirements in several States without implementation plans for

greenhouse gases as of January 2, 2011, when the emission
6

standards in the Tailpipe Rule took effect. The States of Texas

and Wyoming and industry groups petition for review of five

rules designed to ensure that a permitting authority existed to

issue the required greenhouse gas permits. Petitioners contend

the rules are based on an impermissible interpretation of the Part

C Prevention of Significant Deterioration program, CAA §§

160–169, and violate the Act’s “orderly process” for revision of

state implementation plans (“SIPs”) pursuant to CAA § 110. 

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. 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. 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.

We begin in Part I with a brief overview of relevant

provisions of the Act and the regulatory and procedural

background of the challenged rules. In Part II, we address CAA

§ 165(a), which underlies the rules, and petitioners’

interpretation of the Part C permitting requirements. In Part III,

we turn to the challenged rules and must initially address

whether petitioners have Article III standing to challenge them.

I.

Title I, Part A, of the Act addresses air quality and

emissions limitations. It requires EPA to establish National
7

Ambient Air Quality Standards (“NAAQS”) that set the

maximum permissible levels of pollutants for which air quality

criteria have been issued. CAA § 109, 42 U.S.C. § 7409. 

States, in turn, are required to develop SIPs to determine, based

on local conditions and needs, how to implement the NAAQS

and related requirements. CAA § 110, 42 U.S.C. § 7410. 

Section 110 provides the framework for SIP development and

submission by States to EPA,“within 3 years (or such shorter

period as [EPA] may prescribe)” of promulgation of a NAAQS. 

CAA § 110(a)(1), 42 U.S.C. § 7410(a)(1). Among other things,

it requires that a SIP “includ[e] a permit program as required in

parts C and D of this subchapter” and “meet the applicable

requirements of . . . Part C.” CAA § 110(a)(2)(C), (J), 42 U.S.C.

§ 7410(a)(2)(C), (J). EPA must approve a SIP “if it meets all of

the applicable requirements of this chapter [i.e., Chapter 85 Air

Pollution Prevention and Control].” CAA § 110(k)(3), 42

U.S.C. § 7410(k)(3). But if EPA determines that a previously

approved SIP is “substantially inadequate to attain or maintain

the [NAAQS] . . . or to otherwise comply with any requirement

of this chapter, [EPA] shall require the State to revise the plan

as necessary to correct such inadequacies.” CAA § 110(k)(5),

42 U.S.C. § 7410(k)(5). Likewise, if EPA determines its

approval or disapproval of a SIP “was in error, [it] may in the

same manner as the approval [or] disapproval . . . revise such

action as appropriate without requiring any further submission

from the State.” CAA § 110(k)(6), 42 U.S.C. § 7410(k)(6). 

When EPA disapproves a SIP “in whole or in part” or “finds that

a State has failed to make a required submission,” EPA must

promulgate a federal implementation plan (“FIP”) within two

years. CAA § 110(c)(1), 42 U.S.C. § 7410(c)(1). 

Parts C and D of Title I address preconstruction review

requirements for new major stationary sources of air pollution. 

Part C, Prevention of Significant Deterioration of Air Quality

(“PSD”), applies to areas that have attained the air quality
8

standards for any criteria pollutant. CAA §§ 160–169, 42

U.S.C. §§ 7470–79. It bars construction of a “major emitting

facility” without a permit that includes emission limitations and

requires the proposed facility to use “the best available control

technology for each pollutant subject to regulation under this

chapter emitted from, or which results from, such facility.” 

CAA § 165(a)(4), 42 U.S.C. § 7475(a)(4). Part C also provides

that EPA “shall . . . take such measures . . . as necessary to

prevent the construction or modification of a major emitting

facility which does not conform to the requirements of this part

. . . .” CAA § 167, 42 U.S.C. § 7477. A “major emitting

facility” is a stationary source that emits, or has the potential to

emit, either 100 tons or 250 tons per year of “any air pollutant.” 

CAA § 169(1), 42 U.S.C. § 7479(1). Part D, Plan Requirements

for Nonattainment Areas, applies to areas that exceed the air

quality standards for a NAAQS pollutant, CAA §§ 171–193, 42

U.S.C. §§ 7501–15, and requires States to develop and submit

plans for attaining NAAQS, CAA § 172, 42 U.S.C. § 7502,

including a permitting program for new or modified major

stationary sources, CAA §§ 172(c)(5), 173, 42 U.S.C. §§

7502(c)(5), 7503.

In response to Massachusetts v. EPA, 549 U.S. at 528–32,

EPA determined that greenhouse gas emissions from motor

vehicles may reasonably be anticipated to endanger public

health and welfare by contributing to climate change, 74 Fed.

Reg. 66,496 (Dec. 15, 2009) (“Endangerment Finding”). It then

promulgated greenhouse gas emission standards for cars and

light trucks pursuant to Title II of the Act, 75 Fed. Reg. 25,324

(May 7, 2010) (“Tailpipe Rule”). EPA announced that, under its

longstanding interpretation of the Act, the Tailpipe Rule

automatically triggered regulation of stationary sources of

greenhouse gases under both the Part C preconstruction permit

and the Title V operating permit requirements because, once the

rule’s emission standards took effect on January 2, 2011,
9

greenhouse gases became a regulated pollutant under the Act 

requiring this permitting. 75 Fed. Reg. 17,004, 17,019 (Apr. 2,

2010) (“Timing Rule”). EPA adopted a phased-in approach

upon concluding that immediate implementation of Part C

permitting for all “major emitting facilit[ies]” of greenhouse

gases, CAA §§ 169(1), 302(j), 42 U.S.C. §§ 7479(1), 7602(j),

would impose tremendous costs on industry and State permitting

authorities; only stationary sources emitting over 75,000 or

100,000 tons of greenhouse gases annually would initially be

subject to PSD and Title V requirements. 75 Fed. Reg. 31,514,

31,523 (June 3, 2010) (“Tailoring Rule”).

On June 26, 2012, this court rejected challenges by States

and industry either on the merits or for lack of standing under

Article III. Coalition, 684 F.3d at 113. The court upheld the

Endangerment Finding and the Tailpipe Rule as consistent with

the Act and neither arbitrary nor capricious. Id. at 116–29. It

also affirmed EPA’s interpretation that the Tailpipe Rule

triggered PSD and Title V permitting requirements for

greenhouse gases emitted by major stationary sources. Id. at

129–44. The court agreed with EPA that “once the Tailpipe

Rule took effect and made greenhouse gases a regulated

pollutant under Title II of the Act, the PSD program

automatically applied to facilities emitting [specified amounts]

of greenhouse gases.” Id. at 133. The court further noted

petitioners had forfeited any challenge to EPA’s greenhouse gasinclusive interpretation of Title V. Id. at 136. Because PSD and

Title V permitting requirements applied by automatic operation

of the Act, the court held that State and industry petitioners

lacked standing under Article III to challenge the Timing and

Tailoring Rules, which mitigated, rather than caused, their

asserted injuries. Id. at 146–48.

Meanwhile, in April 2010, EPA had forewarned in the

Timing Rule that if a State with a previously approved SIP was
10

unable to apply greenhouse gas PSD permitting requirements by

the effective date January 2, 2011, EPA would “exercise its

oversight authority as appropriate to call for revisions to SIPs

and to otherwise ensure sources do not commence construction

without permits that satisfy the minimum requirements of the

Federal PSD program.” Timing Rule, 75 Fed. Reg. at 17,022. 

In June 2010, EPA requested States to submit letters explaining

whether their PSD programs would apply the new greenhouse

gas restrictions. Tailoring Rule, 75 Fed. Reg. at 31,525–26,

31,582–83. EPA stated its intention to issue a SIP Call pursuant

to CAA § 110(k)(5) to any State that lacked the ability to issue

PSD permits for greenhouse gas emissions and, as appropriate,

to move quickly in imposing a corresponding FIP. Id. at 31,526,

31,583. EPA also stated that, pursuant to CAA § 110(k)(6), it

might revise its prior approval of a SIP for any State that is

“unable or unwilling to adopt the [greenhouse gas permitting

requirements] by January 2, 2011.” Id. at 31,582. 

On September 2, 2010, EPA gave notice that it was

proposing to find that EPA-approved PSD programs of thirteen

States were “substantially inadequate” because their SIPs did not

appear to apply PSD permitting requirements to greenhouse gas

pollutants, and to require that these States revise their SIPs

accordingly. 75 Fed. Reg. 53,892, 53,900 (Sept. 2, 2010)

(“Proposed SIP Call Rule”). EPA solicited comments on

whether approved PSD programs in other States applied to

greenhouse gas emitting sources and, if not, proposed to require

that those States also revise their SIPs. Id. at 53,892–93. EPA

expected to finalize the rule around December 1, 2010. Id. at

53,901. Pursuant to CAA § 110(k)(5), EPA proposed that

corrective SIP revisions be submitted within 12 months of the

final rule. Id. Because sources would be subject to PSD

permitting for greenhouse gas emissions on January 2, 2011,

States could choose an earlier deadline of as little as three weeks

in order to minimize the period when sources would not have a
11

permitting authority available to act on their permit applications. 

Id. at 53,896, 53,901–02. If a State failed to submit the required

revision by its chosen date, EPA, pursuant to CAA § 110(c),

would “immediately” issue a finding of failure to submit and a

FIP allowing EPA to act as a supplemental permitting authority

for that State and thereby prevent any gap in PSD permitting. 

Id. at 53,904. EPA separately issued notice of the proposed FIP. 

75 Fed. Reg. 53,883 (Sept. 2, 2012) (“Proposed FIP Rule”). 

On December 13, 2010, EPA found that thirteen States

(including Texas and Wyoming) did not apply their existing

PSD programs to greenhouse gases and thus had “substantially

inadequate” SIPs requiring revision. See 75 Fed. Reg. 77,698,

77,705 (Dec. 13, 2010) (“SIP Call Rule”). Five of the thirteen

States chose SIP revision deadlines of between January – July

2011, anticipating completion of SIP revisions within a few

months and no need for permits by stationary sources before

then. Id. at 77,711–13. Seven States (including Wyoming)

accepted the early SIP revision deadline of December 22, 2010. 

Id. at 77,710–13. On December 29, 2010, EPA found the seven

States had failed to meet that deadline, 75 Fed. Reg. 81,874

(Dec. 29, 2010) (“Failure Finding Rule”), and issued a

corresponding FIP, 75 Fed. Reg. 82,246 (Dec. 30, 2010) (“FIP

Rule”). Under the FIP, EPA was authorized to issue only the

greenhouse gas portion of the PSD permit and specified the FIP

would remain in place “only as long as is necessary for the state

to submit and for EPA to approve a SIP revision that includes

PSD permitting for [greenhouse gas]-emitting sources.” Id. at

82,251. States otherwise retained PSD permitting authority. 

EPA also offered to delegate its greenhouse gas permitting

responsibility to the States. See id.

Of the thirteen States subject to the SIP Call Rule, Texas

alone did not identify a preferred SIP revision deadline. See 75

Fed. Reg. at 77,711. In August 2010, Texas had set forth its
12

legal objections to EPA’s greenhouse gas regulations and

informed EPA 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.” Letter

from Bryan Shaw, Chairman, Tex. Comm’n on Envtl. Quality,

and Greg Abbott, Tex. Atty. Gen., to Lisa Jackson, Admin.,

EPA (Aug. 2, 2010) (“Texas August 2010 Letter”). EPA

assigned Texas a default twelve-month SIP revision deadline of

December 1, 2011 under the SIP Call Rule, 75 Fed. Reg. at

77,711. EPA advised it was “planning additional actions 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 as of January 2, 2011 (or, at the

state’s election, a short period thereafter that the state has said

will not impede the ability of sources to obtain permits in a

timely way).” Id.

Following up, on December 30, 2010, EPA determined,

pursuant to CAA § 110(k)(6), that its prior approval of Texas’s

PSD program “was in error” because the SIP failed to address

all pollutants that would become subject to regulation in the

future or provide assurances of Texas’s legal authority to do so. 

75 Fed. Reg. 82,430, 82,431–33 (Dec. 30, 2010) (“Interim Error

Correction Rule”). EPA revised its approval to be a partial

disapproval, id. at 82,452–53, and simultaneously issued a

supplementary FIP, like those for the seven other States pursuant

to the FIP Rule, allowing EPA to issue greenhouse gas PSD

permits for stationary sources in Texas, id. at 82,456–58. EPA

issued the interim rule without public notice and comment,

invoking the “good cause” exception of 5 U.S.C. § 553(b)(B),

id. at 82,458, while simultaneously initiating notice and

comment procedures on a proposed final version of the rule, id.

at 82,434. On May 3, 2011, EPA issued the final rule, which

tracked the interim rule. 76 Fed. Reg. 25,178 (May 3, 2011)

(“Error Correction Rule”).
13

II.

Petitioners now challenge five rules: the SIP Call Rule,

Failure Finding Rule, FIP Rule, and the Interim and Error

Correction Rules. Consistent with the court’s holding that the

PSD permitting requirements apply to greenhouse gases emitted

by major stationary sources, see Coalition, 684 F.3d at 132–44,

petitioners do not dispute that States had to update their SIPs to

incorporate greenhouse gases into their PSD programs. Instead,

they challenge the method and timing by which EPA required

SIP revisions, and contend that States could issue lawful PSD

permits under CAA § 165(a) in the interim. EPA, in turn,

defends its interpretation of CAA § 165(a), as reinforced by

CAA § 167, as unambiguously prohibiting construction of any

major emitting facility without a PSD permit addressing newly

regulated pollutants, regardless of whether the applicable SIP

has been updated. Given this, EPA maintains that, pursuant to

the analysis in Coalition, 684 F.3d at 144–48, petitioners lack

Article III standing to challenge the rules, because, far from

causing petitioners’ injury, the challenged rules inure to

petitioners’ benefit by ensuring that a permitting authority

existed to issue necessary PSD permits. Because the parties’

arguments and petitioners’ standing turn on the question of

whether § 165(a) is self-executing, that is where we begin.

A.

Where Congress has spoken to the precise question at issue,

“that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed intent

of Congress.” Chevron, U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842–43 (1984). Based on

the plain text of CAA § 165(a) and § 167, we agree with EPA

that the Part C permitting requirements are self-executing and

unambiguously require a PSD permit setting forth emission

limitations for each pollutant subject to regulation under the Act
14

before a major emitting facility may be constructed, even when

the applicable SIP has not been updated to include requirements

for newly regulated pollutants.

CAA 165(a) provides, in relevant part:

No major emitting facility on which construction is

commenced after August 7, 1977, may be constructed

in any area to which this part applies unless–

(1) a permit has been issued for such proposed

facility in accordance with this part setting forth

emission limitations for such facility which

conform to the requirements of this part; [and]

. . . 

(4) the proposed facility is subject to the best

available control technology [“BACT”] for each

pollutant subject to regulation under this chapter .

. . .

42 U.S.C. § 7475(a). CAA § 167 directs that EPA “shall . . .

take such measures . . . as necessary to prevent the construction

or modification of a major emitting facility which does not

conform to the requirements of this part, or which is . . . not

subject to an implementation plan which meets the requirements

of this part.” Id. § 7477. 

By its plain terms, CAA § 165(a) prohibits construction of

a major emitting facility absent a Part C PSD permit that

requires, inter alia, BACT for each pollutant subject to

regulation under the Act. Its prohibition applies directly to

stationary sources and requires that the permit “conform to the

requirements of this part,” id. § 7475(a)(1) (emphasis added),
15

rather than the requirements of an applicable implementation

plan. As counsel for Texas acknowledged, “Section 165 says

nothing about SIPs.” Oral Arg. Tape, No. 11-1037, at 3:05–09

(May 7, 2013). And by requiring BACT for “each pollutant

subject to regulation under this chapter,” CAA § 165(a)(4), 

§ 7475(a)(4) (emphasis added), CAA § 165 neither explicitly

nor implicitly includes an exception for newly regulated

pollutants.

On three occasions, this court has interpreted CAA § 165(a)

as unambiguously prohibiting construction of major stationary

sources without a PSD permit that meets all statutory

requirements. In a pair of cases following EPA’s initial

implementation of the PSD program adopted in the 1977

amendments to the Act, the court stated that “[s]ection 165 by

its terms explicitly and without qualification prohibits the

construction of any major pollution-emitting facility . . . unless

the substantive requirements of that section have been met,”

Citizens to Save Spencer Cnty. v. EPA, 600 F.2d 844, 853 (D.C.

Cir. 1979), and that “[s]ection 165, in a litany of repetition,

provides without qualification that each of its major substantive

provisions shall be effective after 7 August 1977 with regard to

each pollutant subject to regulation under the Act,” Alabama

Power Co. v. Costle, 636 F.2d 323, 406 (D.C. Cir. 1979). Most

recently, in Coalition, 684 F.3d at 134, the court “agree[d] with

EPA that its longstanding interpretation of the PSD permitting

trigger is statutorily compelled.” Because “greenhouse gases are

now a ‘pollutant subject to regulation under’ the Act,” § 165(a)

itself required that “any ‘major emitting facility’ covered by the

PSD program must install BACT for greenhouse gases.” Id. at

133 (quoting CAA § 165(a)(4)). The court held that it “‘must

give effect to the unambiguously expressed intent of Congress,’

Chevron, 467 U.S. at 843, which here requires PSD coverage for

major emitters of any regulated pollutant.” Id. at 134.
16

Granted, these opinions did not address the precise question

here — whether CAA § 165(a) is self-executing and applies

automatically to stationary sources with respect to newly

regulated pollutants, or whether States with existing PSD

programs may continue to issue lawful permits while they

incorporate new pollutants into their SIPs. The court’s repeated

interpretation of the plain text of § 165(a), however, accords

with EPA’s interpretation here, see SIP Call Rule, 75 Fed. Reg.

at 77,705 n.16. In particular, although the court had no occasion

to address the SIP-related issues in Coalition, 684 F.3d at 149,

it agreed with EPA’s interpretation that, by “automatic

operation” of the Act, id. at 144, “once the Tailpipe Rule took

effect and made greenhouse gases a regulated pollutant under

Title II of the Act, the PSD program automatically applied to

facilities emitting over 100/250 tpy of greenhouse gases,” id. at

133. 

Like § 165(a)(1), § 167 by its plain terms grounds EPA’s

PSD enforcement authority in the requirements of Part C, rather

than the requirements of an applicable implementation plan. In

§ 167, Congress mandated that EPA take necessary enforcement

action to prevent construction or modification of a major

emitting facility that either “does not conform to the [Part C]

requirements . . . or . . . is not subject to an implementation plan

which meets the requirements of this part.” Id. (emphasis

added). In authorizing EPA to take enforcement action in either

circumstance, Congress distinguished between construction that

itself violates Part C and construction that is unlawful because

it occurs in an area that lacks a statutorily compliant SIP. That

Congress authorized EPA to enforce the Part C requirements

through § 167, independent of an applicable SIP, is further

evident from the different text in the general enforcement

provision of CAA § 113(a)(1), under which EPA is to initiate

enforcement proceedings for violations of “any requirement or

prohibition of an applicable implementation plan,” 42 U.S.C.
17

§ 7413(a)(1) (emphasis added). “[W]here Congress includes

particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” Russello v. United States, 464 U.S. 16,

24 (1983) (internal quotation marks and alteration omitted).

The Supreme Court has similarly interpreted CAA § 167. 

In Alaska Department of Environmental Conservation v. EPA,

540 U.S. 461, 484–85 (2004), the Court held that even where a

State administers a Part C permitting program pursuant to an

approved SIP, Congress vested EPA with a “broad oversight

role” in § 167 to ensure that PSD permits comply with statutory

requirements. The Court described the PSD permitting

requirements as applying directly to stationary sources through

CAA § 165(a) and, although recognizing that Alaska’s SIP

imposed analogous requirements, continued to look to Part C,

rather than the SIP, for the governing provisions. See id. at

472–73, 484–85. Likewise, in Sierra Club v. Jackson, 648 F.3d

848, 856 (D.C. Cir. 2011), this court recognized that § 167 gave

EPA discretion to take enforcement action where PSD permits

issued pursuant to an approved SIP violated the requirements of

§ 165(a), describing State-issued permits that failed to

incorporate subsequent EPA requirements as “not comply[ing]

with [CAA § 165(a)], which forbids the construction of such

facilities absent a PSD permit meeting the requirements of the

Clear Air Act.” Id. at 851–52.

The self-executing nature of the PSD permitting

requirements is further reinforced by comparing Parts C and D. 

“Where Congress intended air quality programs to apply solely

through State-approved SIPs, Congress used explicit language

that . . . contrasts with the language of Section 165.” Intervenors

Br., No. 11-1037, at 20. Part D permits, for new sources of air

pollution in non-attainment areas, may be issued only if the
18

permitting agency makes a determination “in accordance with

regulations issued by [EPA] . . . consistent with the assumptions

underlying the applicable implementation plan.” CAA

§ 173(a)(1), 42 U.S.C. § 7503(a)(1) (emphasis added). By

contrast, the Part C permitting requirements apply directly to

stationary sources and prohibit construction unless “a permit has

been issued for such proposed facility . . . setting forth emission

limitations . . . which conform to the requirements of this part.” 

CAA § 165(a)(1), 42 U.S.C. § 7475(a)(1) (emphasis added). 

Again, Congress distinguished between permitting requirements

that operate through a SIP and those that operate through the Act

itself, and in Part C chose the latter. See Russello, 464 U.S. at

24.

Texas and Wyoming assert this distinction between Part C

and Part D permits is “absurd.” States Reply Br., No. 11-1037,

at 17. But “a bare assertion of absurdity cannot overcome the

plain meaning of a statute: ‘there must be evidence that

Congress meant something other than what it literally said

before a court can depart from plain meaning.’” New York v.

EPA, 413 F.3d 3, 41 (D.C. Cir. 2002) (quoting Engine Mfrs.

Ass’n v. EPA, 88 F.3d 1075, 1088 (D.C. Cir. 1996)). In

Coalition, 684 F.3d at 142, the court concluded that the different

text in Parts C and D was a significant indicator of congressional

intent. Given the textual distinction between Part C and Part D,

petitioners’ reliance on United States v. Cinergy Corp., 623 F.3d

455 (7th Cir. 2010), as support that CAA § 165(a) is not selfexecuting, is misplaced. In stating that “[t]he Clean Air Act

does not authorize the imposition of sanctions for conduct that

complies with a State Implementation Plan that the EPA has

approved,” id. at 458, the Seventh Circuit was addressing Part

D permits and the general enforcement provision of CAA

§ 113(a)(1), not Part C permits and the PSD enforcement

provision in CAA § 167. Petitioners also mistakenly rely on

General Motors Corp. v. United States, 496 U.S. 530 (1990),
19

which held that EPA can enforce a previously approved SIP

under CAA § 113 even where it had unreasonably delayed

acting on a proposed SIP revision, id. at 540–41, and nowhere

suggested that EPA lacked authority pursuant to § 167 to

enforce the § 165(a) PSD permitting requirements directly.

Viewed alone and in context of other provisions of the Act,

the plain text of CAA § 165(a) and § 167 compel the

interpretation that the PSD permitting requirements are selfexecuting and prohibit construction of a major emitting facility

without, inter alia, BACT technology for each pollutant subject

to regulation under the Act, irrespective of applicable SIP

provisions. Nothing in the text of § 165(a) or § 167, much less

this court’s opinions, delays operation of the Part C permitting

requirements until a State revises its SIPs to incorporate a newly

regulated pollutant. Once the Tailpipe Rule took effect and

greenhouse gases became a pollutant subject to regulation under

the Act, § 165(a) unambiguously prohibited a major emitting

facility from commencing construction without a PSD permit

restricting greenhouse gas emissions, and § 167 unambiguously

authorized EPA to enforce that prohibition irrespective of SIP

provisions. This understanding of congressional intent is

reinforced by the different text for Part D permits and precedent

of the Supreme Court and this court. “If the intent of Congress

is clear, that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed intent

of Congress.” Chevron, 467 U.S. at 842–43. 

B. 

Petitioners offer no alternative interpretation of the text of

CAA § 165(a) or § 167. Instead, they point to other provisions

in the Act and invoke the “cooperative federalism” underlying

the Act to support their position that the PSD permitting

requirements do not apply to a facility with respect to a newly

regulated pollutant until that pollutant is incorporated into the
20

applicable SIP. Although statutory design may “shed new light

on congressional intent, notwithstanding statutory language that

appears ‘superficially clear,’” petitioners have “presented no

persuasive evidence that Congress intended any meaning other

than that suggested by a straightforward reading” of CAA

§ 165(a) and § 167. NRDC v. Browner, 57 F.3d 1122, 1127

(D.C. Cir. 1995). To the extent petitioners (and our dissenting

colleague) maintain that EPA was bound to proceed in

accordance with its regulation, 40 C.F.R. § 51.166(a)(6), and

point to actions by EPA in other circumstances regarding PSD

permitting that they claim are inconsistent with EPA’s selfexecuting interpretation of CAA § 165(a), their reliance is

misplaced. So is the States’ invocation of the Tenth

Amendment.

1. To support their interpretation that States with PSD

programs in approved SIPs could continue to issue lawful

permits that did not address greenhouse gases after January 2,

2011, petitioners rely on the following provisions of the Act:

• CAA § 110 prescribes the framework for States to

implement and enforce the NAAQS and related requirements

through SIPs. Among other things, each SIP must include a

PSD permitting program and meet the applicable requirements

of the Act’s PSD program. CAA § 110(a)(2)(C), (J). On their

face these provisions give States a clear role in administering the

Part C PSD program, but they incorporate, rather than limit, the

permitting requirements of CAA § 165(a). The provisions

specify that SIPs must satisfy Part C’s requirements; they do not

suggest that a previously approved SIP trumps the plain text and

self-executing nature of § 165(a) or limits EPA’s enforcement

authority under § 167. In Spencer County, 600 F.2d at 865–66,

the court rejected an interpretation of the Act under which

implementation of the CAA § 165(a) permitting requirements

must await promulgation and approval of SIPs pursuant to CAA
21

§ 110. To the extent petitioners also rely on CAA § 110(i), it

provides in relevant part that no action “modifying any

requirement of an applicable implementation plan may be taken

with respect to any stationary source” except through

promulgation of a FIP under CAA § 110(c) or a SIP revision

under CAA § 110(a). By its plain terms, subsection (i) limits

EPA’s and States’ authority to modify the terms of a previously

approved SIP without following prescribed procedures but does

not prevent other self-executing statutory provisions from

applying directly to stationary sources, irrespective of the

applicable SIP. Petitioners offer no basis on which the court can

ignore the plain text of CAA § 165(a) and § 167.

• CAA § 161 provides that “each applicable

implementation plan shall contain emission limitations and such

other measures as may be necessary, as determined under

regulations promulgated under this part, to prevent significant

deterioration of air quality.” 42 U.S.C. § 7471. Petitioners

maintain this provision confirms that the PSD permitting

requirements are not self-executing, but rather apply only

through SIPs adopted pursuant to EPA regulations. Like CAA

§ 110(a)(2)(C) and (J), however, CAA § 161 merely specifies

the minimum requirements of a SIP PSD program. Nothing in

CAA § 161 restricts operation of other statutory PSD provisions,

such as the CAA § 165(a) permitting requirements, but instead

requires that SIPs contain additional regulatory measures that

EPA determines are necessary to meet the goals of the PSD

program. As this court has recognized, “[n]othing in the plain

language of the statute limits the measures in the [SIP] to the

preconstruction permit process,” rather, § 161 “reflects an

understanding that other measures might be required — and are

within the authority conveyed by the Act.” Alabama Power,

636 F.2d at 362. Thus, while CAA § 110(a)(2)(C) and (J)

require that SIPs satisfy all applicable Part C PSD provisions,
22

CAA § 161 requires that SIPs satisfy any other measures that

EPA promulgates in regulations. 

• CAA § 166 requires EPA to conduct a study and

promulgate PSD regulations for new NAAQS pollutants, and

gives States twenty-one months to revise their SIPs accordingly. 

42 U.S.C. § 7476(a)–(b). Reliance on this provision is

foreclosed by circuit precedent. In Coalition, 684 F.3d at

143–44, the court rejected a similar argument — that to regulate

new pollutants through the PSD program, EPA must go through

the § 166 process — stating that it “fails on its face” because

CAA § 166 applies only to new NAAQS pollutants and thus

does not apply to non-NAAQS pollutants like greenhouse gases. 

In Alabama Power, 636 F.2d at 405–06, the court rejected as

“contradicted by the plain language of section 165,” the position

that the effective date of the PSD permitting requirements

should be delayed for most pollutants until EPA promulgated

regulations pursuant to CAA § 166.

• CAA § 168 delayed the effective date of most PSD

statutory provisions following enactment of the 1977 CAA

amendments, with certain exceptions, “[u]ntil such time as an

applicable implementation plan is in effect for any area.” 42

U.S.C. § 7478(a). So, petitioners maintain, when Congress

intended to impose new PSD requirements and bypass SIP

revision procedures, it did so explicitly, as in the exceptions in

CAA § 168(b). This contention fails for two reasons. First, the

Supreme Court has recognized that CAA § 168 was simply a

“temporary measure” governing immediate implementation of

the 1977 amendments, Envtl. Def. v. Duke Energy Corp., 549

U.S. 561, 576 n.6 (2007). As such, it does not apply to

pollutants newly subject to regulation in the future. Second,

even with respect to implementation of the 1977 amendments,

this court in Spencer County, 600 F.2d at 860–66, rejected an

interpretation that CAA § 168 delayed the effective date of the
23

CAA § 165(a) permitting requirements until EPA approved SIP

revisions. Although recognizing inconsistency in the text of

§ 165(a) and § 168, id. at 860–63, the court upheld EPA’s

interim regulatory framework in which § 165(a) was to be

implemented as quickly as possible, concluding EPA had

adopted a reasonable accommodation of the two provisions, id.

at 890. Importantly, unlike in Spencer County, petitioners here

identify no statutory provision that conflicts with the plain text

and self-executing interpretation of CAA § 165(a) regarding

newly regulated pollutants and applicable SIPs. Indeed, Spencer

County appears to preclude petitioners’ interpretation of CAA

§ 165(a) because if the PSD permitting requirements operated

only through an approved SIP, there would have been no

conflict between § 165(a) and § 168.

2. The States maintain that EPA’s interpretation of

CAA § 165(a) as self-executing upsets the cooperative

federalism embodied in the Act. In enacting the statute

Congress found that “air pollution prevention (that is, the

reduction or elimination, through measures, of the amount of

pollutants produced or created at the source) and air pollution

control at its source is the primary responsibility of States and

local governments.” CAA § 101(a)(3), 42 U.S.C. 7401(a)(3). 

Congress also found that “Federal . . . leadership is essential for

the development of cooperative Federal, State, regional, and

local programs to prevent and control air pollution.” CAA

§ 101(a)(4), 42 U.S.C. § 7401(a)(4). Accordingly, States are to

determine in the first instance how to implement the federally

established NAAQS and related emission limitations based on

local conditions and needs, but EPA remains “the ultimate

supervisor, responsible for approving [SIPs] and for stepping in,

should a state fail to develop or to enforce an acceptable plan.” 

Duquesne Light Co. v. EPA, 698 F.2d 456, 471 (D.C. Cir. 1983). 
24

Put otherwise, although pollution control may be the

primary responsibility of States, Congress required federal

regulation and enforcement in specific circumstances. Where a

State fails to act or submits a SIP that does not meet minimum

requirements of the Act, Congress required EPA to issue a FIP

under CAA § 110(c)(1) to implement emission requirements

within that State and maintain federal standards. Similarly,

Congress charged EPA with regulating new source performance

standards under CAA § 111, Hazardous Air Pollutants under

CAA § 112, and motor vehicle emission standards under CAA

§ 202. See Train v. NRDC, 421 U.S. 60, 79 n.16 (1975). Selfexecuting permitting requirements with respect to newly

regulated pollutants under CAA § 165(a) are thus not

inconsistent with the cooperative federalism scheme enacted by

Congress.

In the PSD context, the Supreme Court has acknowledged

that “Congress . . . vested EPA with explicit and sweeping

authority to enforce CAA ‘requirements’ relating to the

construction and modification of sources under the PSD

program,” noting that Congress “expressly endorsed an

expansive surveillance role for EPA in two independent CAA

provisions,” referring to enforcement actions pursuant to CAA

§ 113(a)(5) and § 167. Alaska Dep’t of Envtl. Conservation, 540

U.S. at 490. This still left, under EPA’s interpretation of the

ambiguous term BACT, considerable leeway to the permitting

authority, which EPA acknowledged. Id. But, as EPA pointed

out, Congress had determined federal PSD oversight was

necessary to prevent States from improperly competing for

industry by adopting more permissive pollution controls. See id.

at 486. One of Congress’s stated goals for the PSD program was

to ensure that economic growth occurred “in a manner

consistent with the preservation of existing clean air resources.” 

CAA § 160(3), 42 U.S.C. § 7470(3). The same rationale

explains why Congress made CAA § 165(a) self-executing for
25

newly regulated pollutants: otherwise, States would have a

perverse incentive to delay incorporating new pollutants into

revised SIPs in order to compete for industry in the interim. 

“The states, in sum, are to tailor [federally established ambient

air] standards to their own conditions, but EPA is to ensure

national uniformity where needed, for example, to ensure that

states do not compete unfairly for industry . . . .” Duquesne, 698

F.2d at 471.

The rulemaking record demonstrates that EPA repeatedly

acted to accommodate States within the scope of the statutory

scheme enacted by Congress. In the SIP Call Rule, EPA

emphasized the primacy of SIPs and its preference for States to

serve as the PSD permitting authority, acting only when

necessary to ensure a permitting authority existed for affected

sources and then offering to delegate its FIP authority to the

States. Id. at 77,717. Neither Texas nor Wyoming has

suggested that revising their SIPs to incorporate PSD permitting

for greenhouse gases would require independent balancing of

local conditions and needs. As EPA observed, a corrective SIP

revision could constitute a simple addition of greenhouse gases

to the list of pollutants subject to PSD permitting. See SIP Call

Rule, 75 Fed. Reg. at 77,713. Indeed, most States’ PSD

programs automatically update to include newly regulated

pollutants like greenhouse gases. See id. at 77,702. Others

subject to the SIP Call Rule, including Respondent-Intervenor

Connecticut, worked cooperatively with EPA to revise their

SIPs and to ensure permitting continuity promptly and as

needed. See, e.g., id. at 77,710. Texas alone did not, informing

EPA that it had “no intention” of revising its SIP because of its

disagreement with EPA’s regulation of greenhouse gases under

the Act. Texas August 2010 Letter. Invoking “cooperative

federalism” in these circumstances has a hollow ring.
26

3. Finding no support in the Act itself for their position

that the PSD permitting requirements apply only pursuant to an

applicable SIP, petitioners contend that interpreting CAA

§ 165(a) as self-executing is inconsistent with EPA’s regulation

on amendments to the PSD requirements for SIPs, 40 C.F.R.

§ 51.166(a)(6). They maintain that under this regulation, States

can continue to issue valid PSD permits pursuant to previously

approved SIPs for up to three years without incorporating newly

regulated pollutants. 

Section 51.166(a)(6), Amendments, provides:

(i) Any State required to revise its implementation plan

by reason of an amendment to this section . . . shall

adopt and submit such plan revision to [EPA] for

approval no later than 3 years after such amendment is

published in the Federal Register.

. . . 

(iii) Any revision to an implementation plan that an

amendment to this section required shall take effect no

later than the date of its approval and may operate

prospectively.

40 C.F.R. § 51.166(a)(6)(i), (iii) (emphasis added). 

There is no conflict between CAA § 165(a)’s self-executing

nature and EPA’s regulation. The SIP revisions at issue were

not “required . . . by reason of an amendment to” 40 C.F.R.

§ 51.166, but rather by automatic operation of the Act itself. See

SIP Call Rule, 75 Fed. Reg. at 77,707–08. As EPA interprets

§ 51.166(a)(6), it applies to SIP revisions that would not have

been required but for an amendment to § 51.166, such as EPA’s

revision in 2002 of the Part C and Part D program requirements

for SIPs. See 67 Fed. Reg. 80,186, 80,240-41 (Dec. 31, 2002)
27

(“Prevention of Significant Deterioration and Nonattainment

New Source Review Requirements” (“2002 Rule”)). Here, as

EPA explained in the SIP Call Rule, 75 Fed. Reg. at 77,707–08,

States were required to revise their SIPs even absent the

amendments to § 51.166 in the Tailoring Rule; those

amendments merely alleviated States’ PSD permitting burdens. 

See also Error Correction Rule, 76 Fed. Reg. at 25,193–94. The

court effectively confirmed EPA’s explanation in concluding

that petitioners lacked Article III standing to challenge the

Tailoring Rule. Coalition, 684 F.3d at 146. EPA’s

interpretation of its regulation as inapplicable here is therefore

“controlling” because the interpretation is neither “plainly

erroneous [n]or inconsistent with the regulation,” and there is no

reason to suspect that it “does not reflect the agency’s fair and

considered judgment on the matter in question.” Auer v.

Robbins, 519 U.S. 452, 461–62 (1997) (internal quotation marks

omitted); see also Christopher v. SmithKline Beecham Corp.,

132 S. Ct. 2156, 2166 (2012).

Our dissenting colleague has a different interpretation of the

regulation, which he asserts “resolves this case.” Dissent at 2. 

He reaches this conclusion ignoring the plain text of the Act. 

Consequently his reasoning is flawed. For example, he finds no

distinction between SIP revisions triggered by automatic

operation of the Act and those required solely by EPA’s

amendments to its regulations. But Congress itself has codified

the distinction. In CAA § 110(a)(2)(C) and (J), Congress

required that SIPs satisfy all applicable statutory PSD

provisions; in CAA § 161, Congress separately required that

SIPs satisfy “other measures” that EPA promulgates in

regulations, 42 U.S.C. § 7471 (emphasis added). According to

our colleague, in either instance, “the changes to the PSD

regulations still ultimately are what require the changes to the

SIP.” Dissent at 4. This ignores the statutory text as well as the

law of the circuit that States were “required to issue permits [for
28

greenhouse gas emissions] not because of anything EPA did in

the Timing and Tailoring Rules, but by automatic operation of

the statute,” Coalition, 684 F.3d at 146. As this court

understood Congress’s mandate, even if EPA never amended

§ 51.166 in the Tailoring Rule, States still would have been

obligated to update their SIPs to incorporate greenhouse gases

in order to issue valid PSD permits. This holding forecloses our

dissenting colleague’s assertion. See LaShawn A. v. Barry, 87

F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). Indeed, he has

acknowledged that “[t]his [c]ourt has ruled that the statute

requires pre-construction and operating permits for stationary

sources that emit or have the potential to emit certain specified

amounts of an air pollutant, including carbon dioxide.” Ctr. for

Biological Diversity v. EPA, – F.3d –, 2013 WL 3481511, at *9

(D.C. Cir. 2013) (Kavanaugh, J., concurring) (emphasis added).

Additionally, the Supreme Court has instructed that courts

must defer to an agency’s interpretation of its regulation unless

it is “plainly erroneous or inconsistent with the regulation.” 

Auer, 519 U.S. at 461–62. EPA’s interpretation is neither. The

dissent cites the preamble to the 2002 Rule, which, in making

extensive changes to the regulatory PSD requirements, extended

the SIP revision timeline in § 51.166(a)(6)(i) to three years. See

67 Fed. Reg. at 80,240-41. The significant SIP revisions

required as a result of the 2002 Rule would not have been

required but for the regulatory amendments. See id. at 80,240. 

By contrast, on the same page of the preamble to the 2002 Rule,

EPA reiterated its longstanding interpretation that “[t]he PSD

program applies automatically to newly regulated . . .

pollutants.” Id. Thus, the 2002 Rule is consistent with EPA’s

interpretation that the three-year timeline in § 51.166(a)(6)(i)

applies to SIP revisions that are required solely “by reason of an

amendment” to the regulation, whereas the PSD permitting

requirement “applies automatically” to newly regulated

pollutants. 
29

Most fundamentally, our dissenting colleague fails to

account for the statutory provisions that compel the selfexecuting conclusion in this case. The issue is not whether “the

regulation contemplates a construction moratorium in the period

until the State revises its SIP,” Dissent at 6 (emphasis added),

but rather whether the Act itself requires one with respect to

newly regulated pollutants. Our colleague asserts that “Section

165 applies only through the relevant SIP, not directly to

sources.” Dissent at 8. This assertion is belied the plain text of

both CAA § 165 and § 167, as repeatedly interpreted by this

court. He further suggests that it would “make no sense” for the

Act to create a role for States in implementing the PSD program

but also require that newly regulated pollutants be incorporated

into PSD permitting as soon as they become subject to

regulation. Dissent at 8. This ignores that Congress, in enacting

the PSD program as part of the 1977 Amendments, intended to

eliminate perverse incentives for States to compete improperly

for industry, as highlighted by the Supreme Court in Alaska

Dep’t of Envtl. Conservation, 540 U.S. at 486. Regardless of

how our dissenting colleague interprets 40 C.F.R.

§ 51.166(a)(6)(i), or how EPA may have applied the regulation

in the past, the Act itself prohibited the construction of any

major emitting facility after January 2, 2011 without a PSD

permit limiting greenhouse gas emissions. “[A] valid statute

always prevails over a conflicting regulation,” Nat’l Family

Planning & Reprod. Health Ass’n, Inc. v. Gonzales, 468 F.3d

826, 829 (D.C. Cir. 2006), and a regulation can never “trump the

plain meaning of a statute,” Atl. City Elec. Co. v. FERC, 295

F.3d 1, 11 (D.C. Cir. 2002). As EPA explained in the Error

Correction Rule, 76 Fed. Reg. at 25,193, “because [40 C.F.R.

§ 51.166(a)(6)] is a regulation, it cannot, no matter how it is

interpreted, override the CAA requirements that apply PSD

requirements to [greenhouse gas]-emitting sources so that those

CAA requirements do not take effect as of January 2, 2011.” 

Given that the self-executing nature of the Part C PSD
30

permitting requirements is compelled by the plain text of CAA

§ 165(a) and § 167, reliance on the regulation to undercut

Congress’s mandate is misplaced.

4. The other EPA actions that petitioners (and our

dissenting colleague) claim are inconsistent with EPA’s selfexecuting interpretation of CAA § 165(a) do not advance their

position. Petitioners refer specifically to EPA’s implementing

new and revised NAAQS for particulate matter; promulgating

phased-in PSD permitting through the Tailoring Rule; and

grandfathering a PSD permit to the Avenal Energy Project in

California. To the extent petitioners suggest these actions may

be inconsistent with Congress’s mandate in CAA § 165(a), the

court no less than EPA is bound to adhere to Congress’s plain

command, see Chevron, 467 U.S. at 842–43. Petitioners point

to no judicial sanction of EPA’s purportedly inconsistent

application of the PSD permitting requirements in these other

contexts. 

Reliance on these actions is misplaced, in any event, for

EPA justified each of its other actions on grounds inapplicable

here. To the extent EPA allowed States to continue

implementing their existing PSD programs while they revised

SIPs to incorporate different forms of particulate matter, see

Dissent at 6-7, it did so on the express basis that the SIPs and

PSD permits already regulated particulate matter in some form. 

See 73 Fed. Reg. 28,321, 28,340–41 (May 16, 2008) (“New

Source Review Program for Fine Particulate Matter”); 52 Fed.

Reg. 24,672, 24,682–83 (July 1, 1987) (“Regulations for

Implementing Revised Particulate Matter Standards”). (By

contrast, here, the preexisting SIPs of several states failed to

regulate greenhouse gases altogether.) Thus, in promulgating

PSD regulations for fine particulate matter, EPA interpreted

CAA § 165(a) to be self-executing, 73 Fed. Reg. at 28,324,

28,340, but determined that States could continue to implement
31

their existing PSD programs because emissions limitations for

coarse particulate matter served as an adequate surrogate for fine

particulate matter, id. at 28,341. Petitioners here neither

challenged this surrogate approach before EPA, see CAA

§ 307(d)(7)(B), 42 U.S.C. § 7607(d)(7)(B), nor maintain that

any similar surrogate exists for greenhouse gases. Similarly,

EPA justified the phased-in approach of the Tailoring Rule on

the administrative law doctrines of “absurd results,”

“administrative necessity,” and “one-step-at-a-time,” see

Tailoring Rule, 75 Fed. Reg. at 31,516, none of which

petitioners maintain would support delaying the PSD permitting

requirements until the several States revised their inadequate

SIPs. Finally, EPA grandfathered the PSD permit for the

Avenal Energy Project pursuant to CAA § 165(c), which

provides that “[a]ny completed permit application . . . shall be

granted or denied not later than one year after the date of filing

of such completed application”; Avenal had submitted a

completed permit application to EPA more than one year before

the new greenhouse gas requirements took effect on January 2,

2011 — circumstances that petitioners do not identify here.

5. Finally, State petitioners invoke the Tenth

Amendment to the Constitution, which provides: “The powers

not delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States

respectively, or to the people.” U.S. CONST. AMEND X. They

contend that EPA’s “requirement that States cede their rights

and carry out federal policy, or face unprecedented and unlawful

sanctions [in the form of a construction moratorium,] constitutes

coercion and commandeering of the organs of State government,

in violation of the Tenth Amendment.” States Br., No. 11-1037,

at 37. They urge the court to apply the canon of constitutional

avoidance and construe CAA § 165(a) as not self-executing. 
32

The States’ reliance on the Tenth Amendment is met by

Supreme Court precedent repeatedly affirming the

constitutionality of federal statutes that allow States to

administer federal programs but provide for direct federal

administration if a State chooses not to administer it. See, e.g.,

New York v. United States, 505 U.S. 144, 167–68, 173–74

(1992) (upholding access incentives of the Low-Level

Radioactive Waste Policy Act); Hodel v. Va. Surface Mining &

Reclamation Ass’n, Inc., 452 U.S. 264, 288 (1981) (upholding

the Surface Mining Control and Reclamation Act). Under the

challenged rules, the thirteen States found to have “substantially

inadequate” SIPS could revise their SIPs to incorporate newly

regulated pollutants by January 2, 2011, or allow EPA to

regulate those emissions pursuant to a FIP until their revised

SIPs were approved by EPA, which EPA pledged to do

expeditiously, SIP Call Rule, 75 Fed. Reg. at 77,716–17. State

petitioners concede that direct federal regulation of greenhouse

gas emissions is within Congress’s authority under the

Commerce Clause. Contrary to their suggestion, the

circumstance here are not comparable to Congress’s coercive

financial threat to withhold all Medicaid funds from States in the

Patient Protection and Affordable Care Act provision challenged

under the Spending Clause in National Federation of

Independent Business v. Sebelius, 132 S. Ct. 2566, 2601–06

(2012) (Roberts, C.J., joined by Breyer and Kagan, J.J.); see also

id. at 2659–66 (joint dissenters Scalia, Kennedy, Thomas, and

Alito, J.J.). Even assuming a temporary construction delay of up

to twelve months for new major emitting facilities is significant,

State petitioners make no effort to demonstrate this delay is of

the same magnitude and nature as the Medicaid expansion

provision that would strip “over 10 percent of a State’s overall

budget,” id. at 2605. Unlike the Medicaid provision, which was

held unconstitutional because it threatened to withhold all

existing Medicaid funds from States unwilling to carry out the

expansion, id. at 2603–08, EPA assumed authority over only the
33

greenhouse gas portion of PSD permits and left the rest of the

States’ SIPs and permitting authority in place. Therefore, the

constitutional avoidance canon does not apply, much less

require us to alter our interpretation of the plain text of CAA

§ 165(a) and § 167.

III.

Having concluded the Part C PSD permitting requirements

are unambiguously self-executing with respect to newly

regulated pollutants, and apply directly to major stationary

sources irrespective of the applicable SIP, we turn to the

question of standing. 

Petitioners challenge EPA’s SIP Call Rule, Failure Finding

Rule, and FIP Rule on two primary grounds. They contend, first,

that EPA may not find a SIP to be “substantially inadequate”

pursuant to CAA § 110(k)(5) based on a requirement that did

not exist at the time the State submitted its SIP to EPA for

approval; and second, that pursuant to CAA § 110(a) and 40

C.F.R. § 51.166(a)(6)(i), States should have been given at least

three years to revise their SIPs to incorporate the new

greenhouse gas requirements. State Petitioners further challenge

the SIP Call Rule as procedurally defective because Wyoming

was not included among the States with presumptively

inadequate SIPs in the Proposed SIP Call Rule. Texas and

industry groups also challenge the Interim and Error Correction

Rules on both procedural and substantive grounds, contending

that EPA improperly invoked the “good cause” exception to

notice and comment procedures in promulgating the Interim

Error Correction Rule, and exceeded its authority under CAA

§ 110(k)(6) when it retroactively disapproved Texas’s PSD SIP

provisions.
34

To establish Article III standing, a petitioner must

demonstrate it has suffered a concrete and particularized injury

that is imminent and not conjectural, that was caused by the

challenged action, and that is likely to be redressed by a

favorable judicial decision. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–61 (1992). The petitioner bears the burden of

averring facts in its opening brief establishing these elements. 

Sierra Club v. EPA, 292 F.3d 895, 899–901 (D.C. Cir. 2002). 

In Coalition, 684 F.3d at 146, the court held, after determining

the PSD permitting requirements applied to major emitters of

greenhouse gases by automatic operation of the Act, that State

and industry petitioners lacked Article III standing to challenge

the Timing and Tailoring Rules because those rules “actually

mitigate[d] Petitioners’ purported injuries.” The court observed

that “Industry Petitioners were regulated and State Petitioners

required to issue permits not because of anything EPA did in the

Timing and Tailoring Rules, but by automatic operation of the

statute.” Id. Thus, “[i]f anything, vacature of the [Rules] would

significantly exacerbate Petitioners’ injuries.” Id.

The same principle applies here. Because CAA § 165(a) is

self-executing, construction of a major emitting facility could

not commence as of January 2, 2011 without a PSD permit

limiting greenhouse gas emissions. The challenged rules

operated to fill a permitting gap in several States and thereby

ensure that a permitting authority existed to issue necessary PSD

permits. See, e.g., SIP Call Rule, 75 Fed. Reg. at 77,700. 

Vacating the challenged rules would mean neither those States

nor EPA could issue greenhouse gas PSD permits, and

construction of a major emitting facility could not proceed in

those States.

Industry petitioners premise their standing on the contention

that without the challenged rules industry would not have been

subject to PSD requirements for greenhouse gases in those
35

several States until they revised their SIPs and EPA approved

them. But because by its plain text CAA § 165(a) is selfexecuting, industry petitioners’ purported injury was caused by

automatic operation of the Act, not the challenged rules. The

challenged rules mitigated the injury that otherwise would have

occurred when industry petitioners could not obtain lawful PSD

permits in those States. Counsel for industry petitioners

conceded at oral argument that, if CAA § 165(a) was selfexecuting, his clients lacked Article III standing to challenge

rules that enabled issuance of necessary permits. Oral Arg.

Tape, No. 11-1037, at 40:25–41:05 (May 7, 2013).

State petitioners contend the challenged rules injured their

quasi-sovereign interests in regulating air quality within their

borders. Again, however, the claimed injury was caused by

automatic operation of CAA § 165(a), rather than the challenged

rules, and thus vacating them would not redress the State

petitioners’ injury. Although State petitioners maintain the

challenged rules “supplanted” their right to issue valid PSD

permits while they revised their SIPs, States Br., No. 11-1037,

at 15; Texas Br., No. 10-1425, at 19, the rules actually

supplemented the States’ permitting authority: in issuing FIPs,

EPA assumed authority over only the greenhouse gas portions

of the PSD permits until affected States revised their SIPs, and

EPA offered to delegate this authority to those States. See FIP

Rule, 75 Fed. Reg. at 82,251; Interim Error Correction Rule, 75

Fed. Reg. at 82,457–58. Neither the States’ briefs nor their

counsel at oral argument identified a concrete redressable injury

or explained how the States had Article III standing to challenge

the rules if CAA § 165(a) was self-executing, in light of this

court’s conclusion in Coalition, 648 F.3d at 144–46, regarding

the lack of standing to challenge the Timing and Tailoring Rules. 

By post-argument letter of May 20, 2013 Texas’s counsel states

the SIP Call Rule directly injured the State’s sovereign interest

in the continued validity of its domestic law and its continued
36

authority to regulate emissions from sources within its borders. 

To the extent these are cognizable injuries, they were caused by

the Act, not the challenged rules: vacatur of the rules would not

restore either State’s ability to issue necessary PSD permits with

greenhouse gas requirements for construction of major emitting

facilities but would result in a construction moratorium until

they submitted revised SIPs that EPA approved. State

petitioners have not suggested a moratorium would redress their

claimed injuries.

Put otherwise, because CAA § 165(a) is self-executing, the

challenged rules determined the timeline for affected States to

submit required SIP revisions and established how soon EPA

could promulgate a FIP to enable issuance of necessary

greenhouse gas PSD permits. State petitioners do not assert a

concrete injury based on EPA’s chosen timeline. And State

petitioners fail to show how the “special solicitude” due to

States in addressing their standing to ensure enforcement of the

Act, Massachusetts v. EPA, 549 U.S. at 520, applies when they

attempt to block operation of the Act, see id. at 520 n.17. In any

event, “nothing in the Court’s opinion [in Massachusetts v.

EPA] remotely suggests that states are somehow exempt from

the burden of establishing a concrete and particularized injury in

fact.” Coalition, 684 F.3d at 148. 

Accordingly, because “[p]etitioners have failed to establish

that the [challenged] Rules caused them ‘injury in fact,’ much

less injury that could be redressed by the Rules’ vacatur,” id. at

146, we must dismiss the petitions for lack of jurisdiction.
KAVANAUGH, Circuit Judge, dissenting: Under the 

federal Clean Air Act, States control air pollution within their 

borders by adopting State Implementation Plans, known as

SIPs. When EPA issues new national air pollution

regulations, States are required to update their SIPs 

accordingly. If a State does not update its SIP in a timely 

manner, EPA may impose a Federal Implementation Plan, or 

FIP, for that State. 

In this case, EPA issued new regulations governing 

emissions of greenhouse gases. EPA’s action required that 

States in turn revise the portions of their SIPs incorporating

the Prevention of Significant Deterioration (PSD) program, 

which requires construction permits for large construction

projects. EPA set short deadlines for States to update their 

SIPs. Texas and Wyoming did not meet their deadlines, and

EPA imposed FIPs for Texas and Wyoming. Texas,

Wyoming, and Industry Petitioners1 challenge EPA’s action. 

As a starting point, the parties here all agree that the 

States must revise their SIPs to incorporate greenhouse gas 

regulations. Texas, Wyoming, and Industry Petitioners argue, 

however, that an EPA regulation expressly gives States up to 

three years to revise their SIPs. Moreover, Texas and 

Wyoming assert that, during those three years, they have

authority to issue valid PSD construction permits under their 

 1 Industry Petitioners include Utility Air Regulatory Group, 

National Mining Association, Peabody Energy Company, SIP/FIP 

Advocacy Group, Coalition for Responsible Regulation, Inc., 

Industrial Minerals Association – North America, National 

Cattlemen’s Beef Association, Great Northern Project 

Development, L.P., Rosebud Mining Company, Alpha Natural 

Resources, Inc., Chase Power Development, LLC, Texas Chemical 

Council, Texas Association of Business, and Texas Association of 

Manufacturers.
2

old SIPs, which do not consider a source’s greenhouse gas 

emissions. 

In my view, this case is straightforward. The relevant 

EPA regulation plainly gives States three years to revise their 

SIPs whenever new pollutants, like greenhouse gases, are 

regulated under EPA’s PSD regulations. See 40 C.F.R. 

§ 51.166(a)(6)(i). During that time, States may still issue 

PSD construction permits. 

EPA also relied on an alternative ground in imposing a 

FIP on Texas before Texas’s 12-month deadline for revisions 

had even passed. EPA retroactively disapproved Texas’s preexisting SIP because, according to EPA, the SIP was flawed 

when EPA approved it 18 years earlier. EPA claims that 

Texas’s SIP was flawed because the SIP neither (i) updates 

automatically to incorporate new federal regulations, such as

the greenhouse gas regulations, nor (ii) provides express 

assurances that the State will update its plan as necessary 

whenever a new EPA regulation issues. But neither the Act 

nor EPA regulations require either an automatically updating 

SIP or assurances that the State will reflexively update its 

plan. So Texas’s SIP was not flawed when EPA approved it 

18 years earlier, and it cannot be retroactively disapproved on 

that basis. 

For those reasons, I would vacate the relevant EPA 

orders. 

I

An EPA regulation, 40 C.F.R. § 51.166(a)(6)(i), resolves 

this case. That regulation gives a State without an 

automatically updating SIP (that is, without a SIP that 
3

automatically incorporates new EPA regulations) three years 

to revise its SIP when EPA changes the PSD requirements.

The regulation states quite plainly: “Any State required to 

revise its implementation plan by reason of an amendment to 

this section [with certain specified exceptions] shall adopt and 

submit such plan revision to the Administrator for approval 

no later than 3 years after such amendment is published in the 

Federal Register.” 40 C.F.R. § 51.166(a)(6)(i). In various 

forms, this regulation has been in place since 1980, with the 

relevant time period increased in 2002 from nine months to 

three years. See 67 Fed. Reg. 80,186, 80,241 (Dec. 31, 2002); 

45 Fed. Reg. 52,676, 52,687 (Aug. 7, 1980). Under the

regulation, States with SIPs that do not automatically 

incorporate newly covered pollutants – for example, 

Wyoming and Texas – have three years to submit new SIPs

when EPA changes the relevant air pollution regulations. In 

the interim, those States are able to issue construction permits 

under their old SIPs. 

Here, however, Texas and Wyoming were not given three 

years to revise their SIPs. And EPA did not allow States to 

issue valid construction permits under their old SIPs. Put 

simply, EPA did not follow its own regulation. EPA could of 

course withdraw or amend the regulation setting forth the 

three-year revision deadline, but it has not done 

so. Therefore, the regulation applies. See, e.g., Transactive 

Corp. v. United States, 91 F.3d 232, 238 (D.C. Cir. 1996)

(agency cannot “ignore its own regulation”); Panhandle 

Eastern Pipe Line Co. v. FERC, 613 F.2d 1120, 1135 (D.C. 

Cir. 1979) (“It has become axiomatic that an agency is bound 

by its own regulations. The fact that a regulation as written 

does not provide [the agency with] a quick way to reach a 

desired result does not authorize it to ignore the regulation or 

label it ‘inappropriate.’ ”) (footnote omitted).
4

EPA has offered three explanations for why the 

regulation does not bar its actions here. In my view, none 

suffices to overcome the plain language of Section

51.166(a)(6)(i).

First, EPA has said that the changes States had to make 

to their SIPs in this case were not “by reason of” changes to 

EPA’s PSD regulations, as the language of Section 

51.166(a)(6)(i) demands to trigger the three-year revision 

period. I disagree.

EPA changed its PSD regulations to encompass 

greenhouse gases. By reason of that change, States’ SIPs 

must be revised. So by its terms, Section 51.166(a)(6)(i) 

applies. To be sure, EPA changed its PSD regulations in part 

because the statute required EPA to alter its PSD regulations 

once greenhouse gases were considered a covered pollutant.

That is because the statute itself requires the PSD program to 

cover any pollutant subject to regulation under the Act. See 

Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 

102, 143 (D.C. Cir. 2012). 

But regardless of whether EPA changes its PSD 

regulations as a matter of statutory discretion or as a matter of 

statutory dictate, the resulting SIP revisions are required “by 

reason of an amendment to” the PSD regulations. Where the 

change to the PSD regulations is a matter of statutory dictate, 

the causal chain may begin with the statute, which in turn 

requires EPA to change the PSD regulations, which in turn 

requires changes to the SIP. But the changes to the PSD 

regulations still ultimately are what require the changes to the 

SIP. I think it’s plainly incorrect to say – as EPA does and 

the majority opinion accepts – that Section 51.166(a)(6)(i)

and its “by reason of” requirement apply when EPA makes a 

discretionary change to the PSD regulations but does not 
5

apply when EPA makes a statutorily mandated change to the 

PSD regulations. See Auer v. Robbins, 519 U.S. 452, 461 

(1997). EPA’s position is a bit like saying that a car accident 

victim wasn’t injured by reason of the other driver’s 

negligence but rather by reason of the car’s poor design when,

in fact, the victim was injured by reason of both causes. So 

too here. 

Moreover, the language in the preamble to EPA’s 2002 

amendment to Section 51.166(a)(6)(i), which changed the 

relevant time for a State to update its SIP from nine months to 

three years, says simply that Section 51.166(a)(6)(i) applies 

whenever EPA “revise[s]” the PSD regulations. 67 Fed. Reg. 

at 80,241. In other words, in 2002 when EPA explained this 

regulation, EPA itself did not think the “by reason of” 

language somehow drew a distinction between (i) cases 

involving discretionary changes to the PSD regulations and 

(ii) cases involving statutorily mandated changes to the PSD 

regulations. Instead, EPA said that Section 51.166(a)(6)(i) 

applies whenever EPA revises the PSD regulations. 

In addition, if EPA were right here, then the three-year 

time period in Section 51.166(a)(6)(i) for a State to update its 

SIP should not have applied when EPA changed or revised 

the National Ambient Air Quality Standards in the past. After 

all, in those cases, once EPA decided to revise the NAAQS, 

the required SIP changes were statutorily mandated, not just a 

matter of EPA discretion. Yet tellingly, in those cases EPA 

actually cited and applied Section 51.166(a)(6)(i) and gave 

States the required time to comply, as set forth in the 

regulation. See, e.g., 73 Fed. Reg. 28,321, 28,341 (May 16, 

2008) (applying Section 51.166(a)(6)(i) when the PM2.5

NAAQS were updated); 52 Fed. Reg. 24,672, 24,682 (July 1, 

1987) (applying Section 51.166(a)(6)(i) when the PM10

NAAQS were instituted). So EPA’s interpretation of the 
6

regulation here not only is contrary to the regulation’s plain 

terms and EPA’s own prior descriptions, but also is flatly 

inconsistent with how EPA has previously applied the 

regulation. 

Second, EPA suggests that, regardless of how much time 

a State takes to revise its SIP, the regulation contemplates a 

construction moratorium in the period until the State revises 

its SIP. That is, the State cannot issue valid permits under its 

existing SIP in the interim. This is a very weak argument. 

Most importantly, the regulation by its terms does not 

impose a construction moratorium during the period in which 

a State without an automatically updating SIP is revising its 

SIP. And it would be borderline nonsensical for the agency to 

give a State three years to revise its SIP to meet new PSD 

requirements – as EPA’s regulation expressly does – only 

then to simultaneously tell the State that permits must meet 

the new PSD requirements during those three years. A State 

that took advantage of the three-year period would do so at 

the expense of bringing major construction in the State to a 

grinding halt. As I see it, it does not make any sense to read 

the regulation to silently impose such a ridiculous regime. 

Moreover, in the past, EPA has not barred States from 

issuing permits during this interim period. EPA has 

traditionally allowed States without automatically updating 

SIPs to issue permits under their existing SIPs during the 

interim period. See, e.g., 60 Fed. Reg. 55,792, 55,794 (Nov. 

3, 1995) (“[T]he implementation date for States with SIPapproved PSD permitting programs . . . will be the date on 

which EPA approves each revised State PSD program 

containing the PM-10 increments. In accordance with 40 

CFR 51.166(a)(6)(i), each State with SIP-approved PSD 

programs was required to adopt the PM-10 increment 
7

requirements within nine months [the period of time the 

regulation then required] of the effective date . . . .”); 52 Fed. 

Reg. at 24,682 (“States with approved PSD SIP’s will have 9 

months” – the period of time the regulation then required –

“from the effective date of today’s PSD amendments to 

revise their SIP’s for PM10 and submit them to EPA for 

approval. See revised section 51.166(a)(6) [formerly section 

51.24(a)(6)]. In the meantime, the EPA expects these States to 

continue implementing their existing programs for particulate 

matter.”) (emphasis added). 

In the past, in other words, EPA has recognized and 

adhered to the plain language of Section 51.166(a)(6)(i). But 

here, EPA has basically re-interpreted the regulation to be 

meaningless. As a matter of basic administrative law, we 

cannot countenance the agency’s blatant disregard of the text 

of its own regulations. See Auer, 519 U.S. at 461; Panhandle 

Eastern Pipe Line Co., 613 F.2d at 1135 (agency does not 

have “authority to play fast and loose with its own 

regulations”).

Third, in its brief and at oral argument, EPA’s counsel 

ultimately asserted that the regulation cannot trump the 

statute, and EPA’s counsel actually suggested that EPA’s own

regulation was invalid. But the regulation remains binding 

law, and States and Industry have not challenged it in this 

case – rather, they have invoked and relied on it. In this 

posture, EPA cannot disclaim the validity of its own 

regulation. If EPA thinks its own regulation violates the 

statute, it can of course endeavor to amend or withdraw 

it. Until then, however, States are entitled to rely on it, and 

EPA must follow it.

In any event, EPA’s regulation is not invalid under the 

statute. Although I think the statute gives EPA discretion to 
8

amend the regulation so as to shorten the lag time for States to 

revise their SIPs, the statute certainly does not forbid this

current regulation. In one form or another, the regulation has 

been on the books and applied by EPA for some 30 plus 

years. And the regulation represents an entirely sensible and

reasonable reading of the statute. 

EPA’s counsel contended, however, that Section 165 of 

the Clean Air Act unambiguously triggers a construction 

moratorium in States like Wyoming and Texas whenever new 

pollutants are regulated under the Act, because Section 165 

applies directly to sources and immediately prohibits 

construction of sources without up-to-date permits. Section 

165, as relevant, states: “No major emitting facility on which 

construction is commenced after August 7, 1977, may be 

constructed in any area to which this part applies unless,” 

among other things, “a permit has been issued for such 

proposed facility in accordance with this part” and “the 

proposed facility is subject to the best available control 

technology for each pollutant subject to regulation under this 

chapter.” 42 U.S.C. § 7475. But Section 165 applies only 

through the relevant SIP, not directly to sources. See id. § 

7471 (“each applicable implementation plan shall contain 

emission limitations and such other measures as may be 

necessary, as determined under regulations promulgated 

under this part, to prevent significant deterioration of air 

quality in each region”); EME Homer City Generation, L.P. v. 

EPA, 696 F.3d 7, 28 (D.C. Cir. 2012) (Clean Air Act

“reserves the first-implementer role for the States”). It would 

make no sense for the Clean Air Act to set out a role for the 

States in implementing the PSD program in the first instance 

but then bypass the States when the PSD program is amended. 

To be sure, because of Section 165, States are required to 

change their SIPs when EPA changes the PSD requirements. 

But the statute does not tell us how quickly States must do so 
9

or what happens in the interim. For some 30 years, EPA’s 

regulation has filled that statutory gap. It is at least 

reasonable to read the statutory language – as EPA has done 

for those 30 years – to allow a facility to begin construction if 

a permit has been issued in accordance with the existing SIP 

while the State goes about revising that SIP within a time 

reasonably set by EPA. 

The regulation, then, represents a reasonable way to fill a 

statutory gap and structure the transition process when EPA 

has adopted new PSD regulations that require changes to 

SIPs. Therefore, I would not accept EPA’s drive-by effort to 

neuter the regulation here instead of going through the 

requisite legal process for amending or repealing it. 

* * *

In this case, EPA in effect has required all States –

including those without automatically updating SIPs, such as 

Texas and Wyoming – to immediately update their PSD 

permitting process when PSD requirements are 

changed. That approach cannot be squared with EPA’s 

regulation. Section 51.166(a)(6)(i) expressly allows the 

States without automatically updating SIPs three years to 

update the PSD programs in their SIPs when PSD 

requirements are changed. That regulation has been on the 

books and followed by EPA for some 30 years. EPA may 

now believe that the regulation is bad policy. If so, EPA 

should change the regulation. But until then, the regulation 

remains binding law. 

In light of the regulation, I would therefore vacate the 

relevant EPA orders in this case.
10

II

EPA also relied on alternative grounds for imposing a 

Federal Implementation Plan on Texas. EPA retroactively 

disapproved Texas’s SIP 18 years after the SIP was 

promulgated, allegedly because the SIP was flawed when 

EPA first approved it. In my view, EPA’s alternative ground 

for imposing a FIP on Texas is likewise flawed. 

EPA disapproved Texas’s SIP under the “error 

correction” provision of the Clean Air Act, Section 110(k)(6). 

Section 110(k)(6) provides: “Whenever the Administrator 

determines that the Administrator’s action approving, 

disapproving, or promulgating any plan or plan revision (or 

part thereof) . . . was in error, the Administrator may . . . 

revise such action as appropriate without requiring any further 

submission from the State.” 42 U.S.C. § 7410(k)(6). Both 

Texas and EPA agree that the error correction provision 

allows EPA to revise its action approving or disapproving a 

SIP only when that action “was in error.” That is, Section 

110(k)(6) can be used to retroactively disapprove a SIP only if 

the SIP was out of compliance with the Act or EPA 

regulations when the SIP was originally approved.

EPA claims that Texas’s SIP was flawed when it was 

originally approved because the SIP neither (i) updates 

automatically to incorporate new federal regulations, like the 

greenhouse gas regulations, nor (ii) provides assurances that 

the State will update its plan as necessary whenever a new 

EPA regulation issues. See 76 Fed. Reg. 25,178, 25,179 (May 

3, 2011); 75 Fed. Reg. 82,430, 82,431 (Dec. 30, 2010). EPA 

therefore issued a FIP for Texas. 

The problem with EPA’s analysis is that nothing in the 

Clean Air Act or in EPA’s regulations requires that SIPs 

automatically update or that States provide express assurances 
11

that they will revise their plans every time EPA issues a new 

regulation. To begin with, EPA admits both in its briefs and 

in its regulations that SIPs are not required to be automatically 

updating. EPA Br. 55; 76 Fed. Reg. at 25,198. So the fact 

that Texas’s SIP does not automatically incorporate new 

federal regulations is a red herring. In addition, nothing in the 

PSD permitting regulations or in the statute requires a State to 

“address, or provide assurances of the requisite legal authority 

concerning, the application of PSD to all pollutants newly

subject to regulation.” 75 Fed. Reg. at 82,433. And EPA 

cannot disapprove a SIP based on a non-existent requirement. 

To be sure, the Clean Air Act requires States to provide 

“assurances that the State . . . will have adequate personnel, 

funding, and authority under State (and, as appropriate, local) 

law to carry out such implementation plan.” 42 U.S.C. 

§ 7410(a)(2)(E). But providing “assurances that the State” 

has “authority” to “carry out such implementation plan” just 

means that the State must be capable of administering the SIP 

it submits to EPA. That language does not require a State to 

assure EPA in advance that the State has “authority” to revise

its plan every time a new pollutant is regulated. So Texas’s 

1992 SIP was not flawed when EPA originally approved it. 

Because Texas’s SIP was valid when approved, EPA’s 

action in approving it back in 1992 was not “in error.” So 

EPA was not authorized to disapprove it now under Section 

110(k)(6). 

* * *

In sum, EPA did not have authority to disapprove 

Texas’s and Wyoming’s SIPs or to issue FIPs to regulate 

emissions of greenhouse gases in those States until the 

expiration of the three-year period set forth in EPA’s 

regulation. Under that binding EPA regulation, States without 
12

automatically updating SIPs are entitled to three years to 

revise their SIPs to cover greenhouse gases. During that time, 

States have legal authority to issue valid permits under their 

existing SIPs. EPA’s orders should therefore be vacated. 

For those reasons, I respectfully dissent.