Texas Granted Temporary Stay to Block EPA Takeover of Greenhouse Gas Permitting The U.S. Court of Appeals for the District of Columbia Circuit granted a temporary stay to Texas Dec. 30, blocking a takeover by the Environmental Protection Agency of permitting in the state for greenhouse gas emissions from new and modified sources (Texas v. EPA, D.C. Cir., No. 10‐
1425, temporary stay granted 12/30/10). Judges Douglas H. Ginsburg and Judith W. Rogers issued the per curiam order in response to an emergency motion asking the court to block implementation of an interim final rule published in the Federal Register Dec. 30, through which EPA revoked its approval for part of the Texas Clean Air Act state implementation plan. According to EPA, the rule was designed to enable it to issue greenhouse gas emissions permits in Texas after permitting and control requirements for those emissions took effect Jan. 2 (75 Fed. Reg. 82,430; 41 ER 2845, 12/31/10). Texas Attorney General Greg Abbott filed a petition for review and the emergency motion Dec. 30. “Once again the federal government is overreaching and improperly intruding upon the State of Texas and its legal rights,” Abbott said in a statement. “With today's new regulations, the EPA is both unlawfully commandeering Texas' environmental enforcement program and violating federal laws that give the State and its residents the opportunity to fully participate in the regulatory process.” Stays are usually granted if the court judges that the plaintiffs are likely to succeed in court on the merits of their case. However, in its stay order, the court said, “The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the emergency motion for a stay and should not be construed in any way as a ruling on the merits of that motion.” The Justice Department filed a response to the ruling Jan. 6, asking the D.C. Circuit to deny the motion for a stay (Texas v. EPA, D.C. Cir., No. 10‐1425, U.S. response to emergency motion filed 1/6/11). In its response, the Justice Department said every other state is either moving forward with greenhouse gas emissions permitting or has worked with EPA to ensure that either state or federal authority to issue permits exists or will exist shortly after the Jan. 2 deadline. EPA took the action in the interim final rule because Texas had refused to implement greenhouse gas emissions permitting requirements as all the other states are doing. Seven other states—Arizona, Arkansas, Florida, Idaho, Kansas, Oregon, and Wyoming—told EPA they could not make changes to their state implementation plans (SIPs) in time to meet the greenhouse gas permitting requirements by Jan. 2. But they are allowing EPA to impose a federal implementation plan (FIP) until they can revise their SIPs. Texas Claims ‘Fundamental Right.’ In its emergency motion, Texas said EPA is attempting to supplant the state's “fundamental right under the Clean Air Act (‘CAA') to implement Texas' approved State Implementation Plan ‘SIP') because the State has insisted on asserting its full rights under the CAA and has sought judicial review of unlawful EPA actions.” The EPA greenhouse gas emissions permitting and control requirements took effect Jan. 2, under prevention of significant deterioration (PSD) provisions of the Clean Air Act. PSD requires new and modified sources to obtain permits for emissions of regulated air pollutants and to control those emissions using best available control technology (BACT), determined individually for each source. If PSD permits are issued in Texas without greenhouse gas emissions limits after Jan. 2, those permits would be open to legal challenges that could bring construction of new facilities or facility modifications to a halt. Texas argued that the greenhouse gas permitting requirements could result in a construction moratorium on new facilities and modifications of existing facilities. EPA maintained that it is acting to prevent such a construction moratorium that would be brought on by the state's refusal to issue the permits. While EPA will issue PSD permits in Texas for greenhouse gas emissions, the agency said Texas will continue to issue PSD permits for other air pollutants. EPA Accused of Exceeding Authority According to Texas, EPA has exceeded its authority in requiring states to implement PSD permitting for greenhouse gas emissions. Texas, industry groups, and conservative legal foundations have sued EPA in the D.C. Circuit, challenging PSD requirements and other greenhouse gas regulation by EPA. Other states also have filed lawsuits, even though they are implementing the greenhouse gas permitting. The D.C. Circuit on Dec. 10 rejected a request by Texas and others to stay the EPA greenhouse gas rules (Coalition for Responsible Regulation v. EPA, D.C. Cir., Nos. 09‐1322, 10‐1073, 10‐
1092, stay denied 12/10/10). In addition, the U.S. Court of Appeals for the Fifth Circuit on Dec. 29 denied a similar stay request from Texas of another EPA final rule related to PSD (Texas v. EPA, 5th Cir., No. 10‐
60961, stay denied 12/29/10). If you have any questions on this important issue, please do not hesitate to contact Rich Szecsy at 512.451.5100 or via email to rich.szecsy@tx‐taca.org.