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A federal appeals court has green-lighted the Environmental Protection Agency’s plan to take over Texas’s air-pollution permitting program.
The U.S. Circuit Court of Appeals for the District of Columbia agreed in December to temporarily halt the takeover, pending court review. On Wednesday (Jan. 12), however, the court dissolved the stay, finding that state officials “have not satisfied the stringent standards required for a stay pending court review.”
The ruling allows the EPA to directly enforce its new greenhouse gas regulations, which took effect on Jan. 2, until Texas develops a permitting plan that can win EPA’s approval. The rules require new and upgraded industrial facilities to install technologies to control their greenhouse gas emissions.
Three Strikes
The decision is the third recent strike against Texas in its long-running dispute with EPA over regulation of carbon-dioxide emissions from power plants. The state leads the country in carbon-dioxide emissions.
The closely watched debate has been heated and public. The state contends that EPA has illegally commandeered its constitutional functions.
EPA’s regional administrator has accused Texas officials of using the issue to force a construction stoppage; the chairman of the Texas Commission on Environmental Quality, in turn, accused the agency of playing politics with environmental issues.
Thirteen states are suing EPA over the new rules, but Texas is the only one that has refused compliance altogether. Texas has had a “flexible permitting program” in place since 1994, but EPA says the program is too lenient and does not address GHG regulation.
On Dec. 23, EPA took the unprecedented step of announcing that it would directly issue Clean Air Act permits for greenhouse gas (GHG) emissions “on the state's behalf” starting in January 2011, saying Texas officials had “no intention of properly implementing” the federal air permitting program to cover GHG emissions.
‘Out of Options’
“They’re pretty much out of options,” David Doniger, policy director of the Natural Resources Defense Council’s Climate Center, told politico.com. “It’s time for [Gov.] Rick Perry to stop grandstanding and look at this practically.”
Steve Cochran, an official with the Environmental Defense Fund, said in a statement: "If Texas put half the effort into carrying out greenhouse gas pollution control measures that it put into fighting them, EPA would not need to be involved."
However, Lauren Bean, a spokeswoman for Texas Attorney General Greg Abbott, said in a statement that the state "will continue to challenge the EPA's unlawful overreach."
"The EPA has overstepped its legal boundaries and exceeded its authority," she said. "While the court declined to proactively prohibit the EPA from continuing its federalization effort, today's ruling did not reach the heart of the state's claim and does not affect Texas' ability to continue pursuing its legal challenge against the agency."
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