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You are here: Home / Agency / Statements / Court Ruling on TCEQ Flexible Permits a Victory for Texas, and a Step Toward Restoring State/Federal Balance

Court Ruling on TCEQ Flexible Permits a Victory for Texas, and a Step Toward Restoring State/Federal Balance

An editorial by Bryan W. Shaw, Ph.D., Chairman, Texas Commission on Environmental Quality, on Aug. 14, 2012.

The Fifth Circuit Court of Appeals on Monday issued a significant victory for the State of Texas. The ruling states the EPA acted arbitrarily and capriciously when it rejected the Texas Flexible Permit Program (FPP) “sixteen years tardy,” to quote the opinion. The court premised its ruling on the finding that “the EPA based its disapproval on demands for language and program features of the EPA’s choosing, without basis in the Clean Air Act or its implementing regulations.”

As a result of EPA’s disapproval, 120 flexible permit holders in Texas were wrongly mandated to “de-flex” under threat of federal and civil sanctions, and not a single environmental benefit was gained. Not a single pound of emissions reductions resulted from the unjustly targeted facilities. Instead, those companies spent millions of dollars to “de-flex,” in what amounts to no more than a bureaucratic paper exercise.

The court righted EPA’s wrong, signifying that the principle of cooperative federalism, as envisioned and encouraged by the Federal Clean Air Act (CAA), is making a comeback and not a moment too soon. Congress understood that a “one-size fits all” approach would be a recipe for environmental failure. Instead, states and local governments are charged to develop air pollution control and prevention plans, based on standards set by EPA.

Congress envisioned a cooperative relationship between federal and state governments, whereby “if a SIP or a revised SIP meets the statutory criteria of the CAA, then the EPA must approve it.” This division of power is born out of the recognition that each state is unique and must have the ability to tailor local and statewide environmental plans accordingly. The FPP was one such innovative plan that quantifiably reduced air pollution in Texas by bringing grandfathered facilities into the realm of permitting and granting Texas companies enforceable, permitted flexibility in operating their minor source facilities.

The Fifth Circuit Court of Appeals states, “It is clear that Congress had a specific vision when enacting the Clean Air Act: The Federal and State governments were to work together, with assigned statutory duties and responsibilities, to achieve better air quality.”

It is my sincere hope that Texas and the EPA will move forward with a renewed sense of responsibility to honor the congressional ideal of cooperative federalism and the spirit of the CAA in order to promote our shared goal of improving the health and environment for Texans and all citizens of this great nation.