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April 12, 2012

Given the drawn out process of most legal action, it’s not often enough that I’m able to write about positive progress on the litigation front, but this month I am happy to provide several positive updates.

Fifth Circuit Court: At the end of March, the US Fifth Circuit Court of Appeals vacated EPA’s disapproval of the Texas Pollution Control Project (PCP) Standard Permit. The Court stated, "Because the EPA had no legal basis on which to disapprove those regulations, we VACATE the agency's disapproval of Texas' regulations and REMAND with instructions." The Court directed EPA to reconsider the Standard Permit "most expeditiously" and reminded EPA that they hold the ministerial function of reviewing state implementation plans to ensure consistency with the Clean Air Act (CAA) but have no discretionary authority. The Court further concluded that "each state has the primary responsibility for assuring air quality within its entire geographic area." Let's hope this is the first, in a long line of court opinions that recognize EPA’s arbitrary and capricious actions towards state implementation of the CAA. The Texas Attorney General's press release and link to the full opinion can be found here.

US Supreme Court: Just before the Fifth Circuit's PCP decision noted above, another court decision—this one by the United State Supreme Court—admonished the EPA and unanimously ruled for Idaho property owners, Chantell and Mike Sackett. In this case, the Sackett's were ordered by EPA to halt construction on their property or face large monetary fines, with no financially reasonable path to appeal the compliance order. Although the Court did not rule on larger Clean Water Act (CWA) issues, the decision allows the Sackett's to appeal EPA's compliance order before EPA initiates civil enforcement. By appealing the order, the Sackett's will be able to contest EPA's determination that their property was part of a wetland and subject to the CWA prior to the accrual of larger monetary penalties.

DC Circuit Court: As a reminder, oral argument is set for Friday April 13th for the Cross-State Air Pollution Rule (CSAPR). You will remember back in January I wrote about the Court granting Texas' request for a stay preventing the EPA from implementing CSAPR. Now the rule cannot go into effect until the merits of the case are fully considered. In the meantime, EPA continues to apply CSAPR's predecessor, the Clean Air Interstate Rule (CAIR). This case cannot be heard soon enough as summer approaches and electric grid reliability becomes even more important for our state.

With around a dozen court battles between our state and EPA, along with many other challenges across the country to EPA's overreach, it is difficult to keep all the cases straight. In my opinion, the state of Texas has done a remarkable job leading the charge for fair and consistent regulation from DC and I applaud our state's leaders for their tenacity to fight for what is right: due process to ensure meaningful regulations based on sound science.

I have enjoyed updating all of you through this newsletter and look forward to, what I hope will be, many more victories in our state's battles against EPA's command and control regime.

As you may know, my term as TCEQ Commissioner has come to a close. I would like to take this opportunity to say thank you to the dedicated staff and Commissioners here at TCEQ. During the last five years as Commissioner, I have been privileged to work with incredibly talented and capable individuals dedicated to protecting all Texans. I am proud of all we have accomplished.

Governor Perry recently announced my appointment to the Railroad Commission. I devoted my life to state government at an early age and am humbled by the opportunity to continue to serve the great state of Texas.

While I will not be seeking election to the Railroad Commission, I know there is much to be done at the agency and look forward to working with Chairman Smitherman and Commissioner Porter.

Any opinions expressed herein are those of Commissioner Garcia and are not intended to be reflected as opinions of the Commission or another Commissioner.

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