Ken Paxton

Monday, August 13, 2012

Texas Wins Another Victory Against the EPA, Court Overturns Agencys Baseless Disapproval of States Flex Permits Program

AUSTIN -- Texas Attorney General Greg Abbott issued the following statement praising the decision by the U.S. Court of Appeals for the Fifth Circuit rejecting the Environmental Protection Agency's unlawful disapproval of Texas’ Flex Permits Program:

This ruling is a victory for Texas jobs and confirms what we’ve said from the start that the EPA’s actions were baseless and nothing more than a federal power grab by an administration that is desperate to extend its control over businesses, with no regard for the consequences of their actions. The Court rightfully rejected EPA’s attempt to hijack Texas’ air permitting program -- a program that was created over 16 years ago by Governor Ann Richards. The decision also chided the EPA for attempting to force its own draconian policies on Texas, noting that federal law requires EPA to work cooperatively with the States.

In its 23-page opinion issued earlier today, the Court explains that the EPA improperly rejected Texas’ Flex Permits Program more than 16 years after the agency’s statutory deadline, and that the EPA's actions had no basis in law. The Court notes that the EPA did not disapprove of Texas’ Flex Permits Program when it was first proposed in 1994, or the subsequent five times the program was amended by the state in 1998, 2000, 2001, 2002, and 2003. The Court also criticized the EPA for ignoring the central role states play in implementing and running air permitting programs, as established by the federal Clean Air Act, which gives the EPA responsibility for identifying pollutants and setting national standards, while the states are empowered to create their own unique air permitting programs that ensure compliance with these federal standards.

Excerpts from the Court's opinion:
...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.

Because the administrative record reflects that the EPA’s rejection is based, in essence, on the Agency’s preference for a different drafting style, instead of the standards Congress provided in the CAA, the EPA’s decision disturbs the cooperative federalism that the CAA envisions. A state’s 'broad responsibility regarding the means' to achieve better air quality would be hollow indeed if the state were not even responsible for its own sentence structure.

...the EPA’s insistence on some undefined limit on a director’s discretion is, like the Agency’s insistence on a particular drafting style, based on a standard that the CAA does not empower the EPA to enforce.

...we cannot conclude under these circumstances that the EPA made a reasoned decision.

We find that the EPA’s inconsistent with the principles of cooperative federalism that are an essential part of the CAA.

It is clear that Congress had a specific vision when enacting the Clean Air Act: The Federal and State governments were to work together, with assigned statutory duties and responsibilities, to achieve better air quality. The EPA’s final rule disapproving Texas’s Flexible Permit Program transgresses the CAA’s delineated boundaries of this cooperative relationship.