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Texas Challenges EPA's Unlawful Take Over of State Air Permitting Program

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December 30, 2010 | 1,615 views | Post a comment

Obama Administration undermines transparency, openness in government by depriving Texans of a public notice and comment period

AUSTIN -- The State of Texas today filed a legal action challenging the federal government’s attempt to take over Texas’ air permitting program. Court documents filed by the State explain that the U.S. Environmental Protection Agency’s improper overreach violates the Clean Air Act, which mandates a cooperative relationship between the federal government and the states.

By unilaterally asserting federal control over Texas’ air permitting program, the Obama Administration violated the Clean Air Act, the EPA’s own regulations, and important legal protections that foster transparency and openness in government -- such as the requirement that new federal rules be subject to a public notice and comment period.

“Once again the federal government is overreaching and improperly intruding upon the State of Texas and its legal rights,” Attorney General Abbott said. “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. Transparency and openness in government -- which is the very purpose of the public notice and comment period ignored by the EPA -- are vital to our democratic system of government and, like the legal rights guaranteed to the State of Texas, cannot be simply overlooked because the Administration wants to impose unilaterally its agenda on the American people.”

The State’s legal action involves the EPA’s unprecedented effort to regulate so-called greenhouse gas emissions under the Clean Air Act. Like many other states, Texas law does not currently deem greenhouse gases like carbon dioxide to be pollutants. However, unlike every other similarly situated state, Texas -- and only Texas -- was singled out by the EPA, which is attempting to take over the State’s air permitting program effective Jan. 2, 2011. The State’s petition for review and request for emergency stay were filed with the U.S. Court of Appeals for the D.C. Circuit and ask the federal court to immediately halt the EPA’s improper attempt to commandeer Texas’ air permitting program.

Under the federal Clean Air Act, preventing air pollution is “the primary responsibility of States and local governments,” not the federal government. Since the Act’s passage in 1972, the Texas Commission on Environmental Quality (TCEQ) -- not the EPA -- has been the primary authority for issuing Clean Air Act permits in the State of Texas. TCEQ issues permits under air permitting procedures prescribed by state law.

Under TCEQ’s watch, Texas’ air permitting program has successfully reduced harmful emissions in the State of Texas at a higher rate than most other states. Emissions data cited by the Governor’s Office indicates that the Texas clean air program achieved a 22 percent reduction in ozone and a 46 percent reduction in nitrous oxide, which outpaces the eight percent and 27 percent reductions that were recorded nationally.

Since the Clean Air Act’s inception, Texas’ air permitting laws have never required TCEQ to regulate so-called greenhouse gases, such as carbon dioxide. And under previous administrations, including the Clinton Administration, the EPA has affirmed that Texas’ air permitting laws are consistent with the Clean Air Act. The Obama Administration’s EPA, however, reversed nearly 40 years of precedent -- and cooperative enforcement -- by attempting to unilaterally impose its policy prerogatives on the State of Texas.

The EPA’s legally flawed and economically harmful plan to regulate carbon dioxide under the Clean Air Act is the subject of other legal challenges currently being pursued by the Texas Attorney General’s Office.

Earlier this year, the EPA indicated that Texas and 12 other states could have until December 11, 2011 -- approximately one year -- to implement new air permitting procedures regulating greenhouse gases. That announcement, however, ignored the Clean Air Act, which requires that the EPA give states at least three years to enact any sweeping amendments to their air permitting programs.

Today, the EPA reversed course and declared that -- rather than give Texas even a year -- it would unilaterally take over the State’s air permitting responsibilities on Jan. 2, 2011. While the EPA’s original Dec. 11, 2011, deadline was itself legally baseless, the EPA now has deprived Texas of any opportunity to revise its laws -- when the Clean Air Act provides a three-year period for states to contemplate and enact such changes.

As the Attorney General’s motion for stay explains, the EPA’s actions are arbitrary and capricious -- and violate both the Clean Air Act and the Administrative Procedure Act. In an attempt to justify its takeover of Texas’ duly-enacted permitting program, the Obama Administration today rejected Texas’ air permitting laws that the EPA had already approved 18 years ago.

Additionally, rather than comply with laws that require the public be given the opportunity to provide input, the EPA hurriedly imposed its takeover of Texas’ air permitting program without any public comment or debate. Thus, not only did the Obama Administration violate the State’s legal rights by failing to comply with mandatory procedures, the EPA also failed to provide the State of Texas and its residents a meaningful say in the way air quality is regulated in Texas -- which is required under the Clean Air Act. Instead, the EPA has attempted to shut off any public scrutiny of its actions.

Today’s petition for review was filed by Attorney General Abbott on behalf of Gov. Rick Perry, the Texas Commission on Environmental Quality, the Texas Department of Agriculture, the Texas Railroad Commission, the Texas General Land Office, and Texas Public Utility Commissioners Barry Smitherman, Donna Nelson, and Kenneth Anderson. The petition for review will be followed by further legal briefs from both the State of Texas and the EPA. The State’s emergency motion for stay asks the court to issue a stay by Jan. 2, 2011, in order to halt the EPA’s scheduled takeover of Texas’ air permitting program.
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