According to the Austin American Statesman, a three-judge panel of the Fifth Circuit Court of Appeals has ruled in favor of Texas and against the Environmental Protection Agency in a dispute concerning a Texas flexible air permitting program.
Texas air permitting system started in 1994
The air permitting system in dispute was started in 1994, according to the Austin American Statesman Account, under then-Texas Gov. Ann Richards. Under the program, an industrial plant could modify its facility and not be subject to further regulation so long as emissions do not increase beyond what is allowed in the permit.
EPA disallowed air permitting system in 2010
According to the EPA, the agency found that the Texas air permitting system "did not meet several national requirements for protection of health and the environment." The EPA also objected to the provision in the Texas law that allowed companies to lump emissions from several facilities under a single cap rather than adhere to a cap for each facility. The Texas review program, in the opinion of the EPA, did not meet federal requirements.
EPA decision decried by Texas Gov. Rick Perry, oil and gas companies
At the time of the decision, Gov. Rick Perry attacked the decision as a job-killer, noting that the ruling invalidated air permits at 122 Texas plants, according to the Houston Chronicle. Representatives of oil and gas companies complained that upgrading their plants, mainly refineries, would cost millions of dollars. They suggested that the EPA ruling was an attempt to impose to regulate so-called greenhouse gases by the backdoor. Congress had rejected such regulation by declining to pass cap and trade legislation.
The court ruling finds that the EPA violated the Clean Air Act
The opinion in the court case that followed, State of Texas, et al v. the Environmental Protection Agency, found that the EPA had violated the Clean Air Act in disallowing the air permitting system that had been in existence in Texas for 16 years prior to the decision. The court found that "Although the EPA acknowledges the distinct role of the states, which is congressionally called for in the design and enforcement of State Implementation Plans, 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." Therefore, the court has vacated the EPA's ruling on the Texas flexible air permitting system.
Court notes role of the states in regulating air pollution
In its opinion, the court noted that the Clean Air Act reserves the regulation of air pollution to the states, subject to the EPA's approval. The EPA delayed its ruling on the Texas flexible air permitting system for over a decade and a half and then abruptly disallowed the entire system.
What happens next
According to the Austin American Statesman account, the EPA is now considering the implications of the ruling. It has the option of appealing the ruling to the full appeals court and even up to the Supreme Court if it wishes.
Texas resident Mark Whittington writes about state issues for the Yahoo! Contributor Network.
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