AUSTIN – The Texas Public Policy Foundation praises today’s ruling by the Fifth U.S. Circuit Court of Appeals that the U.S. Environmental Protection Agency’s rejection of Texas’ Flexible Permit program violated the federal Clean Air Act.

“Over the last four years, the EPA has run roughshod over state authority as if states were merely branch offices of the federal government,” said Kathleen Hartnett White, director of TPPF’s Armstrong Center for Energy & the Environment. “The Fifth Circuit wisely reverses the EPA’s hair-splitting disapproval of the Texas Flexible Permit Program as an ‘agency action beyond the Congressional mandate’.”

In November 1994, Texas submitted a proposed amendment to its State Implementation Plan that included the Flexible Permit program. The Clean Air Act required that EPA approve or disapprove the amendment within 18 months. However, the EPA did not announce its rejection of the program and the permits issued under it until July 2010 – more than 14 years after its statutory deadline to act.

“The EPA’s behavior involving Texas’ Flexible Permit program is a classic example of an agency acting as if it was above the law,” said TPPF policy analyst Josiah Neeley. “By disapproving 140 Texas permits based on technical quibbles and doing so almost 15 years after its statutory deadline had passed, the EPA’s actions were completely inconsistent with the broad authority the Clean Air Act gives states in deciding how to meet federal environmental standards.”

“This decision not only vindicates the legal status of the Texas Flex Permits but it also critically re-asserts the cooperative federalism originally imbedded in federal environmental laws,” White said. “Under the Clean Air Act, the EPA is to set air quality standards, but states are given the authority to make the decisions about how to achieve the standards.”

“By allowing operational flexibility under stringent emission caps, the Texas Flex Permit Program is successful example of precisely what the original Clean Air Act intended: allowing states and private business to design the most efficient means of achieving the federal standards,” White said. “Amidst rapid growth of our population and economy, Texas’s record of continual air quality improvement demonstrates that the Flex Permits work far better than the EPA’s one-size-fits-all, top-down approach.”

Kathleen Hartnett White is director of the Armstrong Center for Energy and Environment at the Texas Public Policy Foundation. She was commissioner and chairman of the Texas Commission on Environmental Quality from 2001 to 2007.

Josiah Neeley is a policy analyst for the Armstrong Center for Energy and Environment at the Texas Public Policy Foundation.

The Texas Public Policy Foundation is a non-profit, free-market research institute based in Austin.

Primary website: www.TexasPolicy.com

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