In Brief

Vol. 45 No. 2

Theodore L. Garrett is a partner of the law firm Covington & Burling LLP in Washington, D.C. He is a past chair of the Section and is a contributing editor of Trends.

Standing

A divided D.C. Circuit panel ruled that states and industry groups, including the states of Texas and Wyoming, the Utility Air Regulatory Group, and the National Mining Association, lacked standing to challenge EPA’s imposition of a federal implementation plan, and related rules, for greenhouse gas permitting requirements for Texas and Wyoming. Texas v. Envtl. Prot. Agency, 2013 WL 3836226 (D.C. Cir. July 26, 2013). The majority concluded that vacating the rules “would not restore either State’s ability” to issue necessary permits “but would result in a construction moratorium until they submitted revised [plans] that EPA approved.” The opinion states that the Clean Air Act is “self-executing” for newly regulated pollutants; otherwise there would be perverse incentives for States to compete improperly for industry.” In dissent, Judge Kavanaugh agreed with petitioners that “[T]he relevant EPA regulation plainly gives States three years to revise their [plans] whenever new pollutants, like greenhouse gases, are regulated.”

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The Law of Adaptation to Climate Change: United States and International Aspects