Fifth Circuit Rejects EPA Power Play in Texas

August 15, 2012 J

Yesterday was a huge victory for Texas!  A federal court of appeals shot down the Environmental Protection Agency’s (EPA) power play trying to disapprove of a Texas air quality plan.  The court ruled that Texas had met its requirements to keep its air clean and meet the federal National Ambient Air Quality Standards (NAAQS) and therefore should not have been rejected by the agency.

Texas wrote plan to meet NAAQS, submitted it to EPA and waited 16 years for an answer.  They had submitted their air quality plan to the EPA for approval back in 1994.  The EPA was supposed to consider the plan and give an answer within 18 months, but the deadline came and went.  Texas took charge and issued over 140 permits, ensuring the construction and upgrading of various types of facilities in the state would meet the NAAQS set out by the federal government.

Then, in 2010, the EPA decided they didn’t like what Texas was doing and tried to step in and disapprove the plan (formally known as their State Implementation Plan or SIP).  The state had a flexible plan that included a streamlining process granting various facilities a single permit so long as those facilities in the aggregate met the required NAAQS.  The EPA, however, decided it wants every major emitting facility in the state to have to apply for its own separate permit.

The court rejected the EPA’s action saying, “The states have broad authority to determine the methods and particular control strategies they will use to achieve the statutory requirements.” BCCA Appeal Grp., 355 F.3d at 822 (citing Union Elec. Co., 427 U.S. at 266).

That means states have a significant amount of discretion in meeting the NAAQS.  The federal government is supposed to recognize the “principles of cooperative federalism” by taking a step back and allowing the states the proper discretion to make decisions in this area.

For 16 years Texas met the NAAQS while operating their own efficient permitting process.  This simply wasn’t good enough for the EPA.  The EPA tried to come in and unravel 140 permits, forcing “regulated entities to qualify for pre-revision permits or risk federal sanctions,” but Texas held its ground.

The Fifth Circuit Federal Court of Appeals threw out the EPA’s decision to reject Texas’s plan calling it both an “arbitrary and capricious” decision.

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