The EPA continues its terrible record in the federal courts this year. On March 27, I noted a series of setbacks that the EPA suffered in the courts — instances where EPA zealotry led to insupportable overreach on the agency’s part.
For the EPA the hits keep on coming. In August alone two more appeals courts have ruled against the EPA. On August 13, the U.S. Court of Appeals for the Fifth Circuit rejected the EPA’s decision to throw out state of Texas’s flexibile permitting program. The program, designed by then Governor Ann Richards administration, allowed for a facility to obtain a permit to install modifications without further review as long as the emissions increase did not exceed an aggregate limit specified in the permit. Industry largely applauded the program because it streamlined their regulatory burden. Yet, since 1994, when it was ennacted during the Clinton administration, while the EPA never challenged the rule, it also never formally accepted it. Under this plan, Texas’s economy grew at a faster rate than the nation as a whole, while its emissions of regulated polloutants also fell faster than the nation as a whole. A win-win right?
Not according to the Obama adminstration’s EPA which, on July 10, 2010 rejected the then 16 year old regulatory program — meaning , in theory, that plants operating under the program faced immediate fines and had to undergo a new permitting process (as yet undeveloped).
Fortunately, the court focused on the positive results. Judge E. Grady Jolly said the agency’s disapproval violated its responsibilities under the Clean Air Act because, “We thus find that the EPA’s objections to the emissions caps of the Flexible Permit Program rely on standards not found in the [Clean Air Act] or its implementing regulations,” Jolly wrote. Going further Judge Jolly stated that the agency “acted arbitrarily and capriciously, and in excess of its statutory authority.”
Then on August 21, the second shoe fell, when the U.S. Court of Appeals for the District of Columbia threw out the EPA’s Cross State Air Pollution Rule (CSAPR). The majority opinion held that that EPA overstepped its stauatory authority under the Clean Air Act. First, the court found that EPA is granted authority to require a state to reduce the emissions it produces only by the amount that drifts into another state, causing it to obtain nonattainment status. But under Obama administration’s CSAPR, he said, EPA could require larger reductions. In addition, the court found that CSAPR circumvents a state’s authority to develop its own plan to reduce emissions, choosing to implement a federal plan immediately — instead of initially deferring to states’ authority.
These court rulings are great for the economy, since, as I pointed out on April 27, a thorough analysis of these and other EPA regulations which have been struck down (and some are still pending or approved) undertaken by the Heartland Institute demonstrated that they would cost billions of dollar and millions of jobs over the life of the regulations and all for little or no environmental benefit.
Good rulings and good riddance!