By Mike Norman
norman@star-telegram.com
Monday was "I told you so" day for some top Texas officials. A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled for the state in a legal battle with the federal Environmental Protection Agency.
"This decision is a big win for jobs and a big win for Texas," said Gov. Rick Perry in a statement released after the ruling. He said the appeals court finding "affirms that states have the right to develop permitting processes that balance the priorities of protecting the environment and allowing our industries to thrive."
Texas brought the case after the EPA, in 2010, disallowed the Texas Flexible Permit Program, the state's plan for air quality control at industrial plants. State officials had a right to gloat about the ruling.
Atty. Gen. Greg Abbott grabbed the opportunity. "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," Abbott said in his own post-ruling statement. "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."
Bryan Shaw, chairman of the Texas Commission on Environmental Quality, which issues air quality permits, sent a commentary on the ruling to news organizations across the state. He wrote that 120 flexible permit holders "spent millions of dollars to 'de-flex,' in what amounts to no more than a bureaucratic paper exercise."
The 2-1 court majority rejected the EPA's arguments against the Texas plan and declared the federal agency guilty of regulatory overreach.
"It is clear that Congress had a specific vision when enacting the Clean Air Act," the majority opinion said. "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 [Clean Air Act's] delineated boundaries of this cooperative relationship."
That, in stilted legal language, is exactly what Perry and Abbott have been saying in many complaints about President Barack Obama's administration. It puts the administration on the spot about what to do from here.
Having taken such a high-profile stand on environmental regulation, Obama's team can hardly accept being slapped down so soundly.The ruling essentially says the EPA should give states the benefit of the doubt in questions of whether air quality controls are strong enough. Can the administration swallow that?
Judge Patrick Higginbotham, appointed to the court by President Ronald Reagan, was the -1 in the 2-1 ruling. He wrote a strongly worded dissenting opinion saying the Clean Air Act assigns the EPA the duty to review state air quality plans.
The majority opinion chided the EPA for being "sixteen years tardy" in rejecting the Texas plan, which was submitted for approval in 1994. Higginbotham pointed out that the Clean Air Act allowed the state to petition a court for automatic approval 18 months after submitting the plan, but Texas never did so. And the state and the EPA have been arguing about the Flexible Permit Program since the days of the George W. Bush administration.
Higginbotham also called the case a "political debate in search of a legal forum."
"Angst over perceived federal intrusion into state affairs," he wrote, "ought be eased by the reality that laws enacted by Congress are laws of the States. Congress passed the Clean Air Act and made it enforceable by the EPA. [Texas] was represented in that decision by two senators and its thirty-two other elected members of Congress. It also bears mentioning that its former governor was resident in the White House for eight of the years in passage here."
I'd guess the debate will continue.
Mike Norman is editorial director of the Star-Telegram / Arlington and Northeast Tarrant County.817-390-7830Twitter: @mnorman9
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