Appeals Court Sides With Texas in Fight Over EPA Air Pollution Rule

The U.S. Court of Appeals for the D.C. Circuit struck down the Environmental Protection Agency's Cross-State Air Pollution Rule.
Thu August 23, 2012 3:43 am
flickr | hsld

Tuesday was a good day for the state of Texas in federal appeals court: not only did a panel of judges from the Fifth Circuit Court of Appeals rule that the state could boot Planned Parenthood from its Women’s Health Program, but judges from the D.C. Circuit sided with Texas over the EPA in a separate case.

Texas, along with several other states and power companies, had sued the EPA over a rule that aimed to curb harmful power plant pollutants from crossing state lines. The panel’s 2-1 majority found that that EPA had “exceeded its statutory authority” under the Clean Air Act with the Cross-State Air Pollution Rule , and that the agency must revise the regulation.

The EPA rule, enacted under the Obama administration, required aging coal-fired power plants to put caps on nitrogen oxide and sulfur dioxide production that contributed to unhealthy air in neighboring states.

Power groups fought the rule with fears that it would force companies to shutter older power plants, threatening the state’s ability to keep the lights on. Dallas-based Luminant, the largest power provider in the state, has maintained that the rule would have forced them to idle units at one of its coal-fired plants and three mines. (Luminant is owned by Energy Future Holdings, which the Dallas Observer recently speculated was preparing itself for bankruptcy.)

The plaintiffs also argued that the EPA did not give enough time for states to develop their own emission-reducing regulations, in violation of the Clean Air Act, which gives states the primary responsibility of determining how to meet federal regulations.

In her dissenting opinion, Judge Judith Rogers responded to this claim by arguing that states’ “reason for not doing so appears to stem from insistence (supported by industry sources) that their reduction of emissions not be one iota greater than is necessary for downwind States to attain and maintain (federal air quality standards).”

Environmental groups say that the regulation would have done more good than harm for the state and the country at large. In a statement, Mary Anne Hitt, the director of the Sierra Club’s Beyond Coal movement said that “once implemented, the rule would have prevented as many as 34,000 premature deaths annually, avoided 19,000 hospital and emergency room visits, and improved the lives of millions.”

When strking down the cross-state regulation, court ruled that the EPA should now follow the weaker, 2005 Bush administration-enacted Clear Air Interstate Rule . As StateImpact Tex as notes, it’s strange that the court would revert to this regulation, as it was ruled unlawful by the very same court in 2008.

Al Armendariz, formerly the EPA’s regional administrator in Texas and who now leads the Sierra Club’s anti-coal campaign in the state, told the Express-News that striking the Cross-State Air Pollution would only delay the inevitable, as he expected the new rule to be even more stringent. “The smart utilities will use the delay to clean up their plants,” Armendariz said.

But Gov. Rick Perry cheered the ruling for shooting down the EPA, an agency he feels has “no regard for the impact of its imprudent policies on states’ economies or Americans’ checkbooks.”

Trip Doggett, the chief executive of Texas’s Electric Reliability Council, expressed his support for the decision to the San Antonio Express-News , saying that the rule “had potentially far-reaching reliability impacts for a grid in which electric use is growing far more rapidly than new generation resources are being built to serve that need.”

Texas Attorney General Greg Abbott, who has filed some 25 lawsuits against the federal government in recent years, said in a statement that the decision is “an important victory for federalism and a rebuke to a federal bureaucracy run amok.”

TEXAS MONTHLY editor Jake Silverstein, in his interview with Greg Abbott for the magazine’s September issue, asked the AG about his role suing the federal government:

Jake Silverstein: You have filed, by my count, 25 lawsuits against the federal government. It’s fair to say that Texas has become one of the prime adversaries of the federal government, and your office has become the prime legal agent of that resistance. Is that a role that you’re comfortable in?

Greg Abbott: It’s a necessary role. Frankly, I wish I did not have to be involved. I am a willing combatant, but I would be happy if the wars went away, because the challenge is to Texas sovereignty.

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