In 1994, Texas adopted its “Flexible Permit Program” to comply with Clean Air Act requirements for minor new sources of emissions. It submitted its plan for approval to the EPA, which is required by law to act within 18 months. Years passed without EPA action, and industry sued for an answer. Finally, sixteen years later, EPA disapproved the Texas plan, throwing into doubt the legality of activities covered, at this point, by about 140 permits. Every facility with a flexible permit could face fines or other enforcement action regardless of the emissions they produce.
The NAM and a variety of industry parties, as well as the State of Texas, sued. Today, a federal appeals court agreed to throw out EPA’s disapproval of the Texas plan, finding no statutory basis for its criticisms of the plan. Instead, the court recognized what EPA did not – that the Clean Air Act sets goals and basic requirements, and gives the states broad authority to determine the methods and particular control strategies they will use to achieve them.
Basically, the court told EPA not to micromanage state implementation of the Clean Air Act. That law makes environmental regulation a shared responsibility, and it is not appropriate for EPA to require states to adopt its own language or procedures as long as the state plans enforce the law’s requirements.
It is quite unusual for courts to overturn EPA decisions, since agencies enjoy a substantial degree of deference under the law, both on factual determinations and on how to legally interpret ambiguous statutes. But in this case, the court found that EPA made no factual findings or cogent theory that the Texas plan would interfere with proper Clean Air Act enforcement. The agency’s preference for its own way of enforcing the requirements was not enough to justify interfering with a system that Congress established to provide for shared responsibility.
In perhaps its most critical view, the court said that recent events “give the appearance that the EPA invented this policy for the sole purpose of disapproving Texas’s proposal.”
Overregulation by the EPA continues to be a serious threat to manufacturers’ competitiveness. Our formal complaint in this case has been vindicated by a federal appeals court, and should serve to remind the agency of the need for fair and balanced regulation only pursuant to authority that has been clearly granted by Congress.
Quentin Riegel is vice president of litigation and deputy general counsel, National Association of Manufacturers.
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