A Less-Than-Crushing Blow for the EPA

Categories: Buzz

The opera ain't over till the asthmatic lady wheezes.
Last week, in response to a post Brantley Hargrove wrote about power giant Energy Future Holdings' slow death waltz with potential bankruptcy, a commenter gently smacked him for ignoring some Major News related to power plants, smokestacks, etc.

"And in other [news] this kid refuses to cover. The 5th Circuit Court of Appeals has once again slapped the shit out of his sainted EPA and found in favor of TCEQ [Texas Commission on Environmental Quality] with a vengeance," Max from the Sandspit wrote. To which Brantley responded, though not in these exact words, "GIVE ME A FRIGGIN' BREAK! I'M JUST ONE GUY! I MEAN, A FREAKISHLY HANDSOME GUY, SURE. BUT ONE GUY NONETHELESS!"

The editors shot Brantley in the neck with our handy editorial rhinoceros tranquilizer gun, and he's since calmed down. Still, that left a question. What was Max talking about? Could Unfair Park have missed a major story? Was something wrong with our Twitter feed?

Turns out, last week the 5th U.S. Circuit Court of Appeals did, in fact, rule against the EPA in one of the 9,475 cases ongoing between the agency and The Lone (Hack, Cough, Wheeze) Star (Cough, Snort, Hack) State. As shit-slappings go, though, this one was Small News.

The case concerned changes that the state wanted to make to how it grants permits to small-scale polluters looking to install or upgrade pollution controls. Changes like that must be approved by the EPA. After several years of unexplained dithering and deadline breaking, the EPA finally rejected that minor change to Texas' overall air pollution plan.

In fairness to Max from the Sandspit, the 5th Circuit judges were pretty unambiguous in telling the EPA to back down. Their opinion could almost be described as harsh. Boring, filled with acronyms and obscure citations, but harsh ... ish. Not that you can blame them. Who could find joy writing about MMRs and SIPs and NSRs? "C'mon, give us some cases about strip searches!" the judges were probably thinking. "With pictures!"

Regardless, the decision cheered some anti-EPA folks, who treated the ruling like a crushing blow to overweening federal authority. (They spun it, in other words.) But the state's victory was tiny compared with its really big cases still pending against the EPA -- on greenhouse gases, air pollution permits and cross-state air pollution rules, all of which threaten to put a crimp in Texas' management of its air -- and the state's economy, EPA opponents say. Many of those cases aren't being heard before the conservative 5th Circuit, but in the District of Columbia, i.e. Washington, Regulatory Moscow on the Potomac®. (If any big rulings come down in those cases, Brantley will almost certainly write about them, once he wakes up.)

"This is not a major smackdown," said Elena Craft, a health scientist with the Environmental Defense Fund. "This 5th Circuit case does not represent an apocalypse for the cross-state pollution rule or any in any other major rule."

So, sorry, Max from the Sandspit. You just won really big in a spring training game. That makes you feel better, maybe, but don't start dusting your trophy case quite yet.

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Max from the Sandspit
Max from the Sandspit

In other news, Barry Schlater at the Star-Telegram has a fine report on the Gasbaggers and the fact that the EPA has just dropped an action agianst Range Resources in a much ballyhoo'd accusation of polluting ground water in Parker County. This move is after a lawsuit was thrown out that was brough by the Lipsky family. The evidence was described as deceptive, Alicia Rich a certified EPA Enviro consultant has some explianin' to do for her role in this shakedown. It ran last Friday. Sorry Patric, I'm late for an appointment with a bar stool. 


It's obvious AGAIN that the observer had no clue.. You have no idea about what this permitting program is about...


It's pretty major, in that the EPA is in full Cartman "Whatevah!  Whatevah! I do what I wan!  I do what I wan!" mode, and the 5th Circuit benchslapped them for it.  

The major part is that this is just one of about 9000 cases (as you noted) where the EPA is acting just as capriciously, and the 5th Circuit just put them on notice that they are likely to lose all of them.

Patrick Williams
Patrick Williams

Be patient, Max. We're aware of that one, but not everything staff writes gets fed to Unfair Park.

Patrick Williams
Patrick Williams

That's possible, but could you be more specific? I read the 5th Court's opinion, the sections of the Texas Administrative Code the opinion addresses and the EPA's notice of disapproval in the Federal Register. I tried the reach the lawyer for the EPA's opponents with no luck, but did get the EDF to comment on what it thought was the limited scope of the ruling. Elena Craft kindly cleared up some confusion about this opinion and another case involving another EPA disapproval concerning the state's flexible permitting program.

Still, I could be clueless. Wanna give us a clue, Goodgolly?

Patrick Williams
Patrick Williams

Benchslapped -- great description of the court's opinion. I gotta remember to steal that sometime.

As for this case being a sign of things to come -- could be, could be. The law and the scope of these cases are pretty hyper-technical, so I wouldn't dare predict which way the courts might cut. Well, I probably would dare -- and probably will if I run out of anything else to say one day -- but my guess wouldn't be worth much. (That's never stopped us on UP before.)

High-five for the Cartman reference, by the way. South Park: a place where all political stripes can find common ground and be really pissed off together.



It ain't Phelps original.  Above the Law blog has long used the phrase and has frequent posts re same.  E.g., http://abovethelaw.com/2012/04...

So if you steal it, Patrick, just know where you're stealing it from.

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