NEW ORLEANS (Legal Newsline) - Texas Attorney General Greg Abbott announced Monday his office filed a challenge to the U.S. Environmental Protection Agency's decision to disapprove the state's Flexible Permits Program.
Abbott said he filed the legal action against the EPA "in an effort to defend the state's legal rights and challenge improper overreach by the federal government." It's the second time in recent months the state of Texas has challenged an EPA decision.
He said the agency's actions could cost the state thousands of jobs and threaten its success in reducing harmful emissions.
The state's petition for reconsideration was filed with the U.S. Court of Appeals for the Fifth Circuit in New Orleans.
Texas' Flexible Permits Program was established in 1994 in an effort to "incentivize grandfathered operations to voluntarily enter into the state's air permitting and environmental regulation program."
Facilities that were exempted because of their grandfathered status agreed to submit to state regulation because the program offered them operational flexibility, Abbott said.
In exchange for emissions regulations, participants were authorized to allocate emissions on a facility-wide basis rather than by source point.
Abbott said the end result was a program that gave facilities greater flexibility and control but still reduced emissions and complied with all state health standards, as well as all applicable federal Clean Air Act requirements.
Abbott, in his statement, pointed out that because of the permits program -- and the enactment of Texas laws that later imposed mandatory permitting requirements -- there are no longer any grandfathered facilities in Texas.
"In contrast, multiple other states across the country are still home to facilities that are grandfathered and therefore exempt from both state and federal permitting requirements," Abbott said.
The Texas Commission on Environmental Quality, or TCEQ, submitted its Flexible Permits Program rules to the EPA in 1994.
The EPA rejected the rules and disapproved of the Texas program on July 15.
Abbott said of the EPA's disapproval, "Under the Clean Air Act, the EPA was required to act on Texas' rules within one year. Yet the federal government waited more than a decade -- three presidential administrations -- to take action on and ultimately reject the TCEQ's Flexible Permits Program rules.
"The EPA's decision not only imposes significant uncertainty on entities that employ thousands of Texans, but it threatens the livelihood of their employees -- who depend upon those facilities for their jobs."
The EPA's decision also threatens a regulatory program that has successfully reduced harmful emissions in the state, Abbott argues.
Emissions data cited by the Governor's Office indicates that the Texas clean air program achieved a 22 percent reduction in ozone and a 46 percent reduction in NOx, which outpaces the eight percent and 27 percent reductions that were recorded nationally.
Abbott is also challenging the EPA's decision to reject a regulatory program the State put in place after submitting it for approval 14 years ago.
Abbott says the EPA was wrong to disapprove the state's qualified facilities program, which allows factories to bypass certain parts of the regulatory process if changes they are proposing do not result in an increase in emissions.
In March, the EPA rejected the program, which was created in 1995 by the Texas Legislature.
"By rejecting Texas' qualified facilities program, the EPA has unilaterally declared that program is not in compliance with federal law," a release from Abbott's office says.