Climate Law ,Evaluating Legal Challenges to U.S.A.'EPA’s PSD Regulations

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As discussed previously, implementation of EPA’s greenhouse gas regulations necessitates a large program of regulation under the Clean Air Act’s Prevention of Significant Deterioration (PSD) program. EPA has attempted to give states authority to implement these changes, but not all parties have been compliant. A series of EPA rules passed in December 2010 found that certain State Implementation Plans (SIPs) were inadequate for addressing greenhouse gas permitting requirements and established temporary federal permitting programs to cover those regions. Unsurprisingly, these determinations have been challenged in the DC Circuit. According to the most complete statement of issues in the case, filed March 17, 2011, the challenges focus on four major questions:

1.Whether EPA violated the CAA by not allowing three years for states to pass appropriate SIPs in accordance with EPA’s past regulations;
2.Whether EPA used the wrong provision in the CAA to issue its SIP call;
3.Whether EPA incorrectly assumed that PSD was self-executing such that outdated SIPs could not legally issue permits for GHG emissions starting on January 2, 2011; and