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Guess what happened when two states tried to stop the EPA’s greenhouse gas rules

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Michael Bastasch Energy Editor

A federal court has thrown out a challenge against the Environmental Protection Agency’s rules regarding greenhouse gas emissions from power plants.

The suit was brought by Texas and Wyoming.

“Accordingly, because petitioners lack Article III standing to challenge the rules, we dismiss the petitions for lack of jurisdiction,” according to the majority opinion by Circuit Judge Judith Rogers.

A federal appeals court ruled 2 to 1 that the states lacked standing to sue the EPA to stop the agency from overriding the states and implement greenhouse gas permitting systems. The states were also joined by the National Mining Association, Peabody Energy Corp. and two groups of unnamed power companies.

“While I respect the court’s authority, I remain disappointed that President Obama continues to try to overrun Congress by regulating carbon emissions,” Texas Republican Rep. Pete Olson told The Daily Caller News Foundation. “The fact remains that overly strict carbon regulations have the potential to ripple through the economy, costing jobs and impacting almost every facet of life in America. Such regulations will reduce our global competitiveness by giving an edge to countries that don’t follow suit.”

On Friday, the court concluded that the Clean Air Act required large greenhouse gas emitters to obtain permits. Since the EPA’s limited actions allowed emitters to get permits that they otherwise would not be able to get, neither the energy companies nor the states had legal grounds to challenge the agency.

“Today’s ruling from the D.C. Circuit is disappointing,” said Bryan Shaw, chairman of the Texas Commission on Environmental Quality, in a statement. “The EPA has effectively re-written the Clean Air Act to impose its new standards, imposed severely restrictive timelines on the states to implement its new requirements, and then twisted the Act to immediately impose its agenda on Texas. In light of all of this, it is remarkable that the D.C. Circuit has repeatedly found no harm to the states with respect to EPA’s greenhouse gas rules.”

The decision was met with glee from environmentalists and regulators.

“Instead of using its taxpayer dollars to litigate and obstruct clean air protections, Texas should invest in expanding its world-class wind energy resources, and in building a stronger clean energy economy,” said Peter Zalzal, an attorney for Environmental Defense Fund, which intervened in the case.

“EPA is pleased with the court’s decision to leave the GHG permitting structure in place,” an EPA spokesperson told TheDCNF. “The agency is continuing to evaluate the court’s decision.”

Circuit Judge Brett Kavanaugh dissented, arguing that EPA regulations give the states three years to revise the clean air rules before the agency can intervene and didn’t put a moratorium on construction during that period.

Kavanaugh added that it would be “borderline nonsensical” for the agency to only give states three years to comply while imposing new standards during that time.

“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,” said Kavanaugh.

In 2011, states were required to revise implement greenhouse gas permitting systems for large emitting sources such as power plants and large factories. The EPA stepped in and created federal permitting systems in states that failed to create their own.

Texas took action early, suing the EPA in 2010 to prevent it from imposing a federal greenhouse gas permitting system. Wyoming argued in 2011 that the EPA did not give it enough time to adopt the new Clean Air Act requirements and joined Texas in its suit against the agency’s greenhouse gas rules.

“These rules strip our authority and primacy,” Wyoming Gov. Matt Mead, a Republican, said in 2011. “The state of Wyoming had the primary role in regulating air quality permitting and the EPA used unreasonable deadlines to take that away.”

Last year, the same court upheld the EPA’s regulation of tailpipe emissions as well as the “determination that the rule triggered permitting requirements for new major stationary sources of greenhouse gases.”

“This decision also highlights a disturbing interpretation of the state/federal relationship, which is supposed to be one of cooperation between the two levels of government,” Shaw added. “Unfortunately, EPA would rather the relationship be one of undisputed power by the federal government and unquestioning acceptance of that power by the state.”

The Texas attorney general’s office did not have an official statement for TheDCNF when contacted for comment.

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