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David Doniger’s Blog

Madhatter's Tea Party: Court Rejects Yet Another Texas Attack on EPA's Carbon Safeguards

David Doniger

Posted February 24, 2011 in Curbing Pollution, Solving Global Warming

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They say that the definition of insanity is doing the same thing over and over and expecting a different result.  Proving the adage, Texas today lost yet another round in its efforts to block common-sense steps under the Clean Air Act to reduce dangerous carbon pollution.  The state’s record in the courts now stands at an abysmal 0-4.  

It's looking like a Madhatter's Tea Party.

Thumbnail image for 500px-Teaparty_svg.png

                                                                                   source:  Wikimedia commons

Back in late December, Texas sued EPA in the Fifth Circuit federal appeals court in New Orleans to block steps EPA has taken to ensure that new power plants and other large new industries in every state would have a way to get the carbon pollution permits they need– permits without which they cannot legally construct.  Texas had already failed to get the federal appeals court in Washington to halt EPA’s greenhouse gas safeguards.  So Governor Rick Perry and Attorney General Greg Abbot decided to shop for a new forum closer to home where they thought they might do better.  Texas was wrong again.

As I’ve pointed out before, Texas is the only state that has tried to block every effort EPA has made to make sure that big new pollution sources can get the carbon permits they need to commence construction.  Bizarrely, if the state got its way, Texas would be the only state in the country where you could not legally build big new carbon-emitting facilities – not the stance you’d expect from a supposedly business-friendly governor and his attorney general in these economic times.

The judges in New Orleans apparently have figured it out, however.  In January, they rejected Texas’s request for a “stay” of EPA’s action. 

In today’s decision, the court dumped Texas’s case altogether, ruling that it should be heard in the appeals court in Washington, where all the other challenges to EPA’s carbon safeguards are pending.   The court stated in no uncertain terms that the Clean Air Act “forbids construction or modification of 'major emitting facilities' without a preconstruction permit.”  The judges noted that this case “represents one small piece of a large swath of related litigation” already being heard by the D.C. Circuit, and they noted that the “ordinary meaning of the [Clean Air Act]’s text” requires Texas to go to the D.C. Circuit for review of a “nationally applicable” action like this one.  The decision notes Congress’s intent to have centralized review of Clean Air Act “matters on which national uniformity is desirable” instead of “piecemeal review… in the regional circuits, which risks potentially inconsistent results.”

So what did Texas accomplish by shopping for a second court closer to home?  Another predictable loss in the courts, and the waste of taxpayer dollars – both state and federal – on an irresponsible legal strategy.

                                                                       This post co-written with Meleah Geertsma

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