U.S. 5th Circuit Court of Appeals Halts EPA’s Regional Haze Plan for Texas

The U.S. Court of Appeals for the 5th Circuit issued a stay to prevent the EPA’s regional haze plan for Texas from taking effect. The stay will allow the Texas haze program to remain in effect until the 5th Circuit issues a final ruling on Texas’s challenge to EPA’s action.

In granting the stay, the 5th Circuit signaled that it will rule that the EPA did not have authority to replace the Texas haze program with an alternative EPA program.

High Costs and Threats to the Texas Grid

Texas argued that its haze program was adequate; that the EPA’s program would have cost $2 billion for no discernible benefit; and that the EPA’s plan would remove thousands of megawatts of generating capacity from an already stressed Texas power grid. Texas also claimed that the EPA’s program was really an attempt to discourage use of coal, as EPA’s program would only affect coal-fired power plants.

5th Circuit Is the Right Court for this Dispute

In opposing the Texas position, the EPA first argued that the dispute should not be heard in the 5th Circuit. The EPA argued that the haze program was part of a national regulatory scheme, and that under the Clean Air Act the U.S. Court of Appeals for the District of Columbia Circuit should hear it.

The 5th Circuit disagreed with the EPA and concluded that it was the proper court to hear this dispute. The 5th Circuit noted that the EPA’s plan had only local or regional effect.

EPA’s Actions Were Not Authorized by Law

The 5th Circuit determined that the Clean Air Act required the EPA to defer to Texas regarding the development of the haze program, and that the EPA’s action demonstrated a failure to properly defer to Texas.

After determining that the EPA exceeded its authority in disapproving the Texas program, the 5th Circuit stated that it need not consider the argument that the costs of the EPA’s program were unreasonable when compared to its benefits.

Threats to the Texas Grid Warranted a Stay

The 5th Circuit also agreed with Texas that the potential injury to the Texas power grid warranted a stay of the EPA’s program, at this time. The 5th Circuit specifically stated that the public interest in access to affordable electricity outweighs the inconsequential visibility differences that the EPA’s haze plan might achieve.

I have written two prior alerts regarding the Texas regional haze plan. One discussed the substantive issues (click here) and the other one discussed the procedural question of the proper court to hear the dispute (click here).

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