Texas Claims a Victory Against EPA, But the Point May Be Moot

Photo by Brendan Smialowski/Getty Images

Texas Attorney General Greg Abbott speaks during a hearing of the House Energy and Commerce Committee's Energy and Power Subcommittee on Capitol Hill February 9, 2011 in Washington, DC. Abbott has filed over 24 lawsuits against the federal government, six of them against the EPA.

You wouldn’t know it from much of the coverage out there, but a “victory” for Texas in its ongoing conflict with the Environmental Protection Agency (EPA) Monday is something of a moot point.

The 5th Circuit Court of Appeals handed down a 2-1 ruling yesterday saying that the EPA hadn’t properly rejected the state’s ‘Flexible Permitting Program.’ That was a system put in place in the nineties that was used by about ten percent of industrial facilities in the state to obtain air permits. (The rest of the facilities in the state used a standard permit approved by the EPA.) The court found that “the EPA based its disapproval on demands for language and program features of the EPA’s choosing, without basis in the Clean Air Act or its implementing regulations.” All three judges in the ruling were appointed by Republican presidents.

The state Attorney General Greg Abbott, Texas Commission on Environmental Quality (TCEQ) and several industry groups filed the suit, saying the EPA didn’t have the right to reject the permitting program. But while Texas fought the EPA’s decision, behind the scenes almost all of the facilities in the program went ahead and got a standard, federally-approved permit anyway. And the TCEQ also submitted a new Clean Air plan to the EPA (partly modeled after federal standards), which the agency approved in June. (The TCEQ points out that the new plan isn’t related to the old Flexible Permitting Program.)

So what’s the point of suing the EPA for permits no one really uses anymore? “This is all kind of beating a dead horse,” says Elena Craft with the Environmental Defense Fund. “The reality is that nothing on the ground is going to change.”

Craft was part of a petition to the EPA filed by several environmental groups asking for the old flexible permitting program to be revoked. She says this week’s decision probably won’t change anything in that regard.

Photo courtesy of EDF

Elena Craft, with the Environmental Defense Fund, says the new ruling isn't likely to change the air permitting process in Texas.

“The [old] program still has to be approved by the EPA,” Craft says. “The court says they didn’t find the EPA’s reasons for disapproving is complete. That doesn’t mean the program has a green light going forward. It means the EPA has to do a better job proving why [the TCEQ permitting] doesn’t meet federal requirements of the Clean Air Act.”

Part of the issue was how long it took the EPA to get around to rejecting the flexible permit program. It was originally submitted by Democratic Governor Ann Richards in 1994, but the EPA didn’t get around to a final disapproval until 2010, according to the ruling. “Sixteen years tardy,” as the court put it.

In statements, the TCEQ and Attorney General Abbott are painting the decision as a victory. Regardless of where things stand now in the permitting process, they say the suit is justified in fighting federal overreach.

“It is a victory for Texas, our environment, and our economy,” the TCEQ says in a statement. “We regret that Texas businesses were forced into an additional, unnecessary permitting process by the EPA, even though existing permits were legal and protective of the environment.”

The governor weighed in, too. “It’s unfortunate we had to go to such extremes to fight back against this troubling trend of overreach and reckless political activism by the Obama Administration that shows no regard for the impact on jobs or our economy,” Governor Rick Perry said in a statement.

But since all of the facilities under the old permitting program have already submitted new permits that would come into compliance with the EPA, it’s not clear what the point of the lawsuit is anymore.

Update: The TCEQ, in response to a request for comment, says that “the TCEQ does not know of any permit holder that plans to submit another application to go back to a flexible permit.  It’s important to understand that the court ruling does not result in the TCEQ’s flexible permit rules being automatically SIP-approved (by EPA). This will take more time, and the court did not specify how long EPA has to re-visit approval/disapproval of TCEQ’s flexible permit rules.” The TCEQ also says that of the 140 flexible permits under the old program, 21 were “voided or transitioned to another permit” before the EPA disapproved them in 2009. Since, 71 of the permits were “de-flexed,” or changed to a standard permit. And 42 other permits are pending to do the same. That leaves only six facilities in the state that still haven’t changed their old flexible permit.

“We see time and again that Texas has challenged the EPA on a number of issues, and at every turn they’ve been denied by the court,” Craft of the Environmental Defense Fund says. “Or if they call it a victory, it’s a victory with no value or meaning. They’re in the same boat as before.”

As StateImpact Texas covered in a report earlier today, battles between the Attorney General (and in some cases, the TCEQ) and the EPA are simply part of the status quo these days in Texas. The Texas Tribune notes there are six separate cases filed by Abbott against the EPA, at a total cost of over $350,000. (In all, Abbott has spent more than $1.25 million in court cases against the federal government, with almost half of that money going to private law firms, according to the Tribune.)

Backstory aside, will facilities now try and go back to the old flexible permitting program? “I don’t see that happening,” Craft says. “There’s been so much attention around it that it doesn’t seem sensible to operate under a permit that has all the liabilities associated with it.” Because the old permits are liable under government and civil suits for potentially violating the Clean Air Act, Craft says it makes sense for facilities to stick with their new, federally-approved permits.

Now the EPA has 45 days to resubmit its rejection to the appeals court, or three months to appeal to the Supreme Court, according to Texas Energy Report.

You can read the 5th Circuit Court of Appeals ruling in full below: