Texas loses another battle against EPA

By Sarah Ferris
Hearst Washington Bureau

WASHINGTON — The U.S. Court of Appeals slapped down Texas’ most recent challenge to the Environmental Protection Agency on Friday — the latest defeat in Attorney General Greg Abbott’s lengthy legal crusade against the federal government.

Abbott had attempted to block the EPA from controlling the state’s system for issuing permits to power plants. That process has been under federal oversight since 2010.

The EPA gave itself the authority to intervene in the permit processes of 13 states, including Texas, in 2010 because the agency said states’ policies did not consider greenhouse gas emissions.

A three-judge panel at the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that the petitioners — which included Texas, Wyoming and a handful of industry groups — didn’t have legal standing to bring the case.

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Judge Judith Rogers wrote in the majority opinion that the states had failed “to show how they have been injured” by sharing permitting power with the EPA. A dissenting opinion by Judge Brett Kavanaugh argued that states should be allowed to issue permits on their own as they update their laws to consider greenhouse gases.

The decision comes a year after the same court rejected the state’s first challenge related to the greenhouse gases.

In addition, the latest case is one of 28 filed by Abbott against the Obama administration. He has won 10 of those cases, including four against the EPA.

Bryan Shaw, chairman of the Texas Commission on Environmental Quality, who has fiercely opposed the EPA’s rules, said it was “remarkable” that the courts repeatedly have denied the state’s appeals.

In response to the latest circuit court decision, Shaw issued a statement saying “the EPA has effectively re-written the Clean Air Act to impose its new standards, imposed severely restrictive timelines on the states to implement its new requirements, and then twisted the act to immediately impose its agenda on Texas.”

Abbott spokesman Charlie Castillo declined to comment. The state attorney general previously described the EPA rules as part of an “unprecedented and overreaching greenhouse gas environmental regulatory scheme” run by the Obama administration.

The drawn-out battle over greenhouse gases stems from a 2007 U.S. Supreme Court decision that ruled that the EPA could regulate the gases under the Clean Air Act. After the EPA issued its rules, state officials, including Abbott and Shaw, immediately objected.

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Abbott, who recently announced his candidacy for governor, could ask the Supreme Court to review the decision or request that it be reviewed by the full D.C. circuit court.

Peter Zalzal, an attorney with the Environmental Defense Fund — an advocacy group that intervened on behalf of the EPA before the appeals court — said the Texas challenge seemed odd because without the EPA’s “limited” intervention, utility companies couldn’t earn approval for construction plans.

The EPA role will ensure a “smooth and uninterrupted permitting of large sources of greenhouse gas emissions” during the interim period when Texas and other states update their laws to cover greenhouse gases.