Federal Judges Rule Against EPA’s Haze Plan Over Oklahoma and Texas

wichitaMountains

The Fifth U.S. Circuit Court has dealt a major blow to the U.S. Environmental Protection Agency in its efforts to enforce Regional Haze rules covering the air over national lands in southern Oklahoma and Texas.

The court stayed the EPA’s plan through pollution controls at certain power plants, siding with numerous power companies in Texas, “because they are likely to suffer irreparable injury in the absence of a stay while EPA has not shown similar injury from the issuance of a stay.”

The judges brushed aside the claims of the EPA in enforcing State Implementation Plans drawn up by Oklahoma and Texas, stating, “The structure of the clean Air act indicates a congressional preference that states, not EPA, drive the regulatory process.” The rulemaking in question concerned the visibility of two national parks and one federal wildlife refuge. The Wichita Mountains Wildlife Refuge was the subject of the challenge as was the Big Bend National Park in southwest Texas and the Guadalupe Mountains National park in west Texas.

The court ruled against the claims of the EPA that the issue had nationwide scope and effect, writing  “EPA’s first argument is unpersuasive and improperly focuses on the natural of the rule as a whole and not on the determinations on which the Final Rule is based.”

The judges also felt that the petitioners who challenged the EPA “have a strong likelihood of success in showing that EPA’s disapproval of the consultation between Oklahoma and Texas was arbitrary and capricious.” They said the power companies also demonstrated several irreparable injuries if the Final Rule is not stayed.

“The costs of compliance would not only increase rates for consumers but would also endanger the reliability of power in ERCOT if plant operators close facilities rather than install or upgrade uneconomical emissions controls.”

“We agree with Petitioners that the public’s interest in ready access to affordable electricity outweighs the inconsequential visibility differences that the federal implementation plan would achieve in the near future,” said the judges.

The challenge to the EPA was made by the state of Texas, its Commission on Environmental Quality, the Public Utility Commission of Texas, Luminant Generation Company, Big Brown Power Company, Luminant Mining, Big Brown Lignite, Luminant Big Brown Mining, Southwestern Public Service, Utility Air Regulatory Group, Coleto Creek Power, NRG Texas Power and Nucor Corporation.