Texas Claims Round Against EPA

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Oil refineries in Bay City, Texas

Texas political leadership was in a celebratory mood today, after news spread that the state had won a battle in its ongoing legal disputes with the Environmental Protection Agency in federal court earlier in the week.

The decision Monday from the 5th US Court of Appeals effectively ordered the Agency to take a second look at TCEQ pollution control procedures. The EPA had initially said those procedures failed to meet the standards of the Clean Air Act. But the court found the Agency’s reasons were insufficient to prove that case and that it’s rejection of the Texas rules came long past the deadline when such rules can be nullified.The opinion read in part:

The EPA issued its final rule disapproving, inter alia, on September 15, 2010, more than three years after the statutory deadline. Although the EPA averred in its opening “Summary” section that it disapproved Texas’s PCP Standard Permit “because it does not meet the requirements of the CAA for a minor NSR Standard Permit program,” id., the EPA again failed to identify a single provision of the Act that Texas’s program violated, let alone explain its reasons for reaching its conclusion.

Stephen Minnick with the Texas Association of Business told StateImpact Texas he believed that the EPA’s new emissions standards announced yesterday could suffer the same fate as the pollution controls.

“The Fifth Circuit absolutely sent a message to the EPA that the position they took was absolutely wrong [on the pollution controls].”

The TCEQ and state policymakers were also quick to applaud the decision as a victory. By afternoon today Governor Rick Perry, Lt. Governor David Dewhurst, and Texas Attorney General Greg Abbott had all released statements to that effect.

“This victory marks the second time in the last three months that Texas has successfully obtained relief from the courts after an unlawful overreach by the EPA,” said the The Texas Attorney General.

The mention of a “second” victory is presumably a reference to an earlier decision by the U.S. Court of Appeals in Washington D.C. to stay new EPA cross-border pollution regulations that had been challenged by Texas power plant company, Luminant.

But all those declarations of victory may be premature. In its decision the court did not tell the EPA that the Texas rules were good ones, simply that the EPA had not done an adequate job showing why they were bad ones.

The Agency now has the opportunity to take another look at Texas Pollution Control laws and craft another argument as to why they do not meet the standards of the Clean Air Act.

 

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