Following on the heels of the Supreme Court ruling that property owners can fight their dictatorial edicts in court, today the EPA took a hammer blow from the U.S. 5th Circuit Court of Appeals – which took quite unkindly to that agency’s assault on Texas’ ability to regulate minor sources of pollutant emissions from things like oil refineries or petrochemical plants.
First, some choice verbiage from the 5th Circuit’s ruling…
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.”).
Hat tip and emphasis: Ace Of Spades.
It’s a brutal rebuke to EPA poo-bah Lisa Jackson. The 5th Circuit didn’t specifically order the EPA to leave Texas alone; what they did was to give Jackson and her people an order to review Texas’ alternative methodology for meeting pollution standards under the most lenient of requirements, and to do it expeditiously. They didn’t set a deadline for the EPA, which means they’ll drag this thing out as long as they can – and that could well earn Jackson and her people another beatdown when Texas gets fed up with the foot-dragging and heads back to court.
But if you think this is much more than a feel-good spanking for the EPA, or that it will change that runaway agency’s behavior, think again.
Because while the EPA got hammered for its harrassment of Texas, today it went after coal-fired power plants.
Well, couple that with a stupid Supreme Court ruling that gave the EPA the ability to regulate carbon dioxide as a poison gas under the Clean Air Act, and today we saw this…
The Obama administration forged ahead on Tuesday with the first-ever limits on heat-trapping pollution from new power plants, ignoring protests from industry and from Republicans who have said the regulation will raise electricity prices and kill off coal, the dominant U.S. energy source.
But the proposal also fell short of environmentalists’ hopes because it goes easier than it could have on coal-fired power — one of the largest sources of the gases blamed for global warming.
“Right now, there are no limits to the amount of carbon pollution that future power plants will be able to put into our skies — and the health and economic threats of a changing climate continue to grow,” said Lisa Jackson, the head of the Environmental Protection Agency.
The industry has estimated that within 3-6 months – just in time for what promises to be a fairly hot summer, particularly given how early spring has come this year – these new rules will take some 13 percent of the coal power industry’s capacity offline.
And that means we’re going to lose about 5 percent of our power production capacity across the nation. What happens when there’s a heat wave across the north and you get 90-degree weather in places like Chicago, Cleveland, Pittsburgh, Detroit and Milwaukee – which are in blue states where all the power plants run on coal?
Brownouts, is what you get. People will want air conditioning, and they’ll overload the power grid’s capacity. The Obama administration hasn’t done anything to replace the power supply they’re taking off-line by going after coal. That means less supply available, and hot, sweaty swing voters in hot, sweaty swing states Obama needs to get himself re-elected.
This, on top of $5 gasoline.
There would be a certain rough justice in the EPA, which Obama happily sends out to strangle business and industry in a willy-nilly fashion, ending as the instrument of his administration’s demise. Independent voters who have to sweat in their own homes on summer days because of stupid federal policies will tend to break away from the incumbent, and if those voters happen to come in Ohio, Pennsylvania, Wisconsin, Michigan, North Carolina or Iowa…well, you won’t have a very close election in November after all, will you?