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March 27, 2012

Fifth Circuit Court of Appeals Pimp-Slaps Out-of-Control EPA

Breaking ruling. Texas gon' bring this mad-dog to heel.

The law is/was as follows: There are great restrictions on major sources of pollution, per law. But there are "minor sources" noted in the law as well, for which there are only the most minimal standards. Essentially this sort of pollution is left up to the states, except that they must comply with the minimal, sketchy requirements set by federal law.

In addition, the EPA has eighteen months to approve, or disapprove, a state's updated plan as far as handling minor sources of pollution. States update their plans from time to time.

In the case just decided, the EPA missed that eighteen month deadline to approve or disapprove by three months.

Did I say three months? I meant three years. It decided to disapprove a plan Texas submitted four and half years ago.

Further, the EPA created, out of whole cloth, its own "regulations" for minor source pollution, deciding that it now housed within it a special Environmental Congress which may pass laws outside of the normal Constitutional framework, as long as they deal with pollution and are certified For the Children (TM).

The Fifth Circuit did not look kindly upon the EPA's double contempt of the actual written law:

Despite an eighteen month statutory deadline, the EPA did not take action on any of these submissions until September 15, 2010. At that late date, the EPA disapproved the PCP Standard Permit—submitted four and a half years earlier—based on its purported nonconformity with three extra-statutory standards that the EPA created out of whole cloth.

Moreover, the EPA did this in the context of a cooperative federalism regime that affords sweeping discretion to the states to develop implementation plans and assigns to the EPA the narrow task of ensuring that a state plan meets the minimum requirements of the Act. The EPA applied these unauthorized standards to disapprove of a state program for projects that reduce air pollution and that, under the Act’s plain terms, is subject to only the most minimal regulation.

Because the EPA waited until more than three years after the statutory deadline to act on Texas’s submission, we order the EPA to reconsider it expeditiously. On remand, the EPA must limit its review of Texas’s regulations to ensuring that they meet the minimal CAA requirements that govern SIP revisions to minor NSR, as set forth in 42 U.S.C. § 7410(a)(2)(C) and § 7410(l).

If Texas’s regulations satisfy those basic requirements, the EPA must approve
them, as § 7410(k)(3) requires. That is the full extent of the EPA’s authority in the SIP-approval process because that is all the authority that the CAA confers.
See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.”).

Emphases and some paragraph breaks added.


It's Called "America"

You want me to google that for you, EPA?

Okay, here you go then.

Thanks to Dave in Texas, who actually filed an amicus brief in this case, quoted extensively in the ruling.*


* No he didn't. I just enjoy lying.


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posted by Ace at 07:27 PM

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