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Federal appeals court rules against EPA in Texas air permit case

The US Court of Appeals for the Fifth Circuit [official website] ruled [opinion, PDF] Monday that the Environmental Protection Agency (EPA) [official website] exceeded its legal authority under the Clean Air Act (CAA) [text, PDF] when it disapproved a Texas plan to issue permits under the Act. Texas implemented an environmental plan known as a Flexible Permit Program [TCEQ backgrounder] that sets a total emissions limit for power plants but does not itemize pollution from specific sources. The EPA argued [AP report] that the Flexible Permit Program was not strict enough to prevent the deterioration of air quality. In a 2-1 decision, the Fifth Circuit rejected the EPA's argument on the grounds that it was arbitrary and out of line with the text of the CAA:

We ... find that the EPA's objections to the emissions caps of the Flexible Permit Program rely on standards not found in the CAA or its implementing regulations. The EPA's explanation for its objection is unsatisfactory because it provides no insight into how the emissions caps interfere with [any] applicable requirement of the CAA. The EPA acted arbitrarily and capriciously, and in excess of its statutory authority.
One judge dissented in the case, arguing that the EPA acted reasonably in rejecting the Flexible Permit Program.

The EPA has been forced to deal with several defeats over the past year. Two weeks ago, the US District Court for the District of Columbia [official website] ruled [JURIST report] that the EPA violated several environmental statutes when it issued regulations on coal mining in the Appalachia region. In October a federal judge similarly ruled [JURIST report] against the agency regarding its process for granting permits used by coal companies for mountaintop removal mining in Appalachia. There, the court ordered that the EPA's 2009 guidelines be set aside so that all pre-2009 guidelines could be restored. In an out-of-court defeat last September the US House of Representatives [official website] passed [JURIST report] the Transparency in Regulatory Analysis of Impacts on the Nation Act 2011 [text, PDF], a bill that essentially blocks a number of proposed EPA regulations aimed at reducing emissions.

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