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Texas challenges EPA emissions rule

By Matt Glenn

[JURIST] The state of Texas filed a petition [text, PDF; press release] Thursday in the US Court of Appeals for the DC Circuit [official website] asking the court to overturn rules limiting greenhouse gas emissions [JURIST news archive] set to go into effect January 2. The petition challenges the legality [Houston Chronicle report] of a rule [75 CFR 82430 text] enacted Thursday by the Environmental Protection Agency (EPA) [official website] partially reversing its approval of the state's Prevention of Significant Deterioration Program (PSD) under the Clean Air Act [EPA backgrounders]. The new regulation effectively transfers licensing power [WSJ report] from the state of Texas to the EPA. The petition argues:

The Partial [State Implementation Plan] Disapproval is contrary to both the Clean Air Act and the fundamental principles of administrative law. Recognizing the proper role of the States, the Clean Air Act declares pollution prevention to be "the primary responsibility of States and local governments," and not the federal government. EPA rejects that approach and seeks to deprive Texas of its right to manage its air resources. The Partial SIP Disapproval is particularly pernicious because it unlawfully attempts to partially disapprove Texas' environmental laws in the face of the State's admirable track record of reducing pollution and improving air quality in the State. Instead, EPA seeks to federalize that power by imposing federal control and commandeering critical portions of Texas' emissions permitting program.

Texas asked the court to stay implementation of the rule [motion for stay, PDF] pending review of the rule. Texas is the only state that has not agreed to implement [NYT report] new greenhouse gas emissions rules. Also on Thursday, the United States Court of Appeals for the Fifth Circuit [official website] denied a request by Texas [AP report] to stay the implementation of the new rules regulating emissions.

Earlier this month, California's Air Resources Board [official website] approved measures that will provide incentives [JURIST report] to companies and factories that decrease their greenhouse gas emissions. In June, the US Senate [official website] defeated a resolution [materials; JURIST report] aimed at limiting the ability of the EPA to regulate greenhouse gas emissions under the Clean Air Act. The US Supreme Court [official website; JURIST news archive] affirmed the EPA's ability to regulate carbon emissions under the Clean Air Act in its 2007 ruling in Massachusetts v. Environmental Protection Agency [Cornell LII backgrounder; JURIST report]. In its ruling, the court held that if the EPA could show a link between greenhouse gas emissions and public health and welfare, then the act gives it the power to regulate emissions. The EPA announced last December [JURIST report] that it had found that greenhouse gases "threaten the public health and welfare of current and future generations," and that emissions from motor vehicles contribute to greenhouse gas pollution. The EPA first announced its proposed finding [JURIST report] in April 2009 before undertaking a 60-day public comment period. Some have suggested that the EPA findings have allowed Congress to avoid the political fallout [JURIST comment] that could come from passing tough climate legislation.

Full post as published by JURIST - The Paper Chase on December 31, 2010 (boomark / email).