EPA Rejects GHG Permit Revocation Provision of South Dakota’s State Implementation Plan

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The Environmental Protection Agency (“EPA”) finalized its decision to reject part of South Dakota’s revisions to its State Implementation Plan (“SIP”) that address the permitting of greenhouse gases (“GHGs”). As discussed in our February 13 post, EPA proposed in February to approve revisions to the State’s Prevention of Significant Deterioration (“PSD”) permitting program that will incorporate by reference provisions of the federal PSD and GHG permitting programs. The Agency disapproved revisions of a related provision, however, that would automatically rescind the federal GHG permitting requirements immediately upon a judicial or administrative action that invalidated EPA’s authority to regulate GHGs. As we explained in our prior post, the effect of this provision would be that if a federal court vacates or otherwise invalidates EPA’s authority to regulate GHGs for any reason, South Dakota’s SIP would be automatically revised to remove the State’s GHG permitting program. However, under the regulations governing SIPs, a state must first submit any revisions to EPA for it to approve or disapprove after satisfying the applicable notice and comment rulemaking requirements. According to EPA, if the rescission clause is automatically triggered by a judicial action, a SIP modification would result without EPA approval or interpretation of the triggering federal action, which violates the regulations governing SIP revision procedures.

The final rule became effective May 19 with a June 17 deadline to file a petition in the U.S. Court of Appeals for judicial review of the Agency’s decision.

Posted by Michael Malfettone at 6/5/2014 4:33 PM