SE Texas Record

Sunday, December 8, 2019

Fifth Circuit ruling on EPA haze plan in Texas inspires differing reactions

By April Bamburg | Jul 26, 2016


NEW ORLEANS — There are very different reactions to the Fifth Circuit Court of Appeals' decision regarding the Texas Haze Plan. 

The attorney general's office praises the decision, while the Sierra Club vows to fight with all their power.

In July, the Fifth Circuit Court of Appeals issued a stay on the Environmental Protection Agency's ruling regarding air quality in Texas. The ruling was designed to improve visibility at national parks and wilderness areas in Texas.

| Courtesy of Morguefile

The agency rejected certain parts of the state's implementation plan, and instead imposed a federal implementation plan (or FIP), which laid out standards for visibility improvement. The state asked the Fifth Circuit Court of Appeals to issue block implementation of the FIP, citing costs of implementation and other factors. With the court's stay the next step is for the Fifth Circuit to hear the appeal on its merits, Kayleigh Lovvorn, a media relations representative of the Texas Attorney General's office, told the Southeast Texas Record.

The FIP requires that Texas retrofit or upgrade generators at eight different power plants. The state argued that this would mean rate increases, even closure of some of the power plants, and a loss of stability for electricity delivery.

"The FIP would mean $2 billion in costs, with no noticeable air quality gain," Lovvorn said. "We can say that it is the published decision of the Fifth Circuit that prevents the rule from taking effect while the challenge is decided on the merits."

Lovvorn notes that the attorney general's office believes federal regulatory overreach has been averted, with the stay of the EPA rule.

Unlike the state of Texas, the Sierra Club is not pleased with the decision.

"The rule would have tremendous health benefits for users of the parks and wilderness areas, and economic benefits," Joshua Smith, a staff attorney for the Sierra Club, said. "These plants are some of the dirtiest in the country."

Smith said that the Sierra Club believes the rule would have resulted in significant savings in public health, approximately $3 billion in avoided public health costs every year. "The costs of compliance were very modest in comparison to what these multi-billion dollar corporations are making," he said. "In terms of costs, this plan was a good deal, even a bargain."

The Clean Air Act and Regional Haze rule require consideration of multiple issues in order to set reasonable progress goals: costs of implementation, the time it would take to get into compliance, and the energy and environmental impacts of compliance, among others. The state determined that the EPA's linear rate of improvement in the FIP was unreasonable, and instead proposed an alternative, which the EPA determined was not good enough. There are several other issues that the court will now take up in its consideration of the appeal on its merits.

"The court was wrong in saying that there was a strong likelihood that Texas would be successful in proving that the EPA exceeded its authority," Smith said. "As far as litigation, we are still evaluating our options. We fully intend to advocate our position on the merits."



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Fifth Circuit Court of Appeals