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Texas Home Alone: Another Court Rejects Challenge to Coming Carbon Standards

David Doniger

Posted December 29, 2010 in Curbing Pollution, Solving Global Warming

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Texas just lost another round in its bizarre and solitary quest to block the first carbon pollution control requirements under the Clean Air Act, which take effect next week.   The Fifth Circuit Court of Appeals, in New Orleans, rejected the State’s request for a “stay” of one of the key steps being taken by the Environmental Protection Agency.  A three-judge panel today issued this ruling:

IT IS ORDERED that the motion for stay pending the disposition of the petition for review is DENIED. Petitioners have not met their burden to satisfy the legal standards required to allow a stay pending appeal.

The Fifth Circuit’s order follows on the rejection of the State’s stay request by the U.S. Court of Appeals for the District of Columbia Circuit on December 10th.  Texas went to Fifth Circuit for a second bite at the apple, but has fared no better in New Orleans than in Washington.

Once again, despite the grandstanding by Texas Governor Rick Perry and other elected leaders, the State has utterly failed to prove its case in the courts.  This is no surprise, because the Texas – alone among the states – has a totally upside-down vision of what the Clean Air Act requires.

Governor Perry and Attorney-General Rick Abbott are accusing the dastardly EPA of seeking to impose a moratorium on construction of major sources of greenhouse gas emissions in Texas after January 2, 2011. But the very purpose of EPA’s actions is to prevent such a moratorium, which will take effect by operation of law in Texas unless EPA steps in to avoid it. EPA is offering Texas a life-preserver and, bizarrely, Texas is treating it like a torpedo.

Yes, it’s that simple.  If Texas got its stay, construction of big carbon emitting sources would be blocked.  By rejecting the State’s stay request, the courts are assuring that there will be no interruption in the ability of large new pollution sources to get the construction permits they need.

The upside-down story-line can also be found in an unusual Wall Street Journal op-ed yesterday, co-authored by incoming House Energy and Commerce Committee Chairman Fred Upton and Tim Phillips, head of Americans for Prosperity, an astroturf front group for the Koch brothers and some of the country’s other biggest carbon polluters.  That op-ed continues to peddle the line that “the country could face a de facto construction moratorium on industrial facilities that could provide badly needed jobs.”  Not true, unless Texas got its way.  Fortunately, the courts have said no. 

The sun will continue to rise on schedule next week.  

* * *

Here is the complete Fifth Circuit order:

         IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

                                                         No. 10-60961

STATE OF TEXAS; RICK PERRY, Governor of Texas; GREG ABBOTT,

Attorney General of Texas; TEXAS COMMISSION ON ENVIRONMENTAL

QUALITY; TEXAS DEPARTMENT OF AGRICULTURE; TEXAS RAILROAD

COMMISSION; TEXAS GENERAL LAND OFFICE; TEXAS PUBLIC UTILITY

COMMISSIONER BARRY SMITHERMAN; TEXAS PUBLIC

UTILITY COMMISSIONER DONNA NELSON; TEXAS PUBLIC UTILITY

COMMISSIONER KENNETH ANDERSON,

Petitioners

    v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent

         Petition for Review of an Order of the Environmental Protection Administration

Before HIGGINBOTHAM, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

     Petitioners have filed a motion for stay pending appeal requesting a ruling by January 2, 2011. Upon consideration of the motion for stay, the response thereto filed by Respondents, and Petitioners' reply to such response, IT IS ORDERED that the motion for stay pending the disposition of the petition for review is DENIED. Petitioners have not met their burden to satisfy the legal standards required to allow a stay pending appeal.

     The Respondent's Motion for dismissal or in the alternative to transfer to the D.C. Circuit remains before the panel. The panel reserves its right to request further briefing on said motion.

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Comments

majiiDec 30 2010 06:21 PM

Thanks so much for this information. It makes it easy to see that this particular lawsuit originated not because it posed a particular threat to TX and other states, but because of the plaintiffs' opposition to Barack Obama's presidency. I imagine that many who support Perry and others don't really know that the EPA is not guilty of what it is being accused of by them. Blogs like yours allow those of us who really want to understand complex issues the opportunity to know exactly what is going on.

majiiDec 30 2010 06:23 PM

I'm also bookmarking your site!

Jagannathan ViswanathanJan 2 2011 05:16 AM

Here is what I propose. Since pitting reason against faith is like tilting against the windmill, we can only make quixotic challenges. Here is one I propose for the Texas Board of Education. I was at an energy conference where I heard support for carbon tax from a previous bastion of unscientific thought - an unnamed and leading public university in the great state of Texas. Led by an able governor who I guess supports secession and creation we are close to become the energy capital of the world- that is the if state survives what is predicted to be a 120 degree average temperature in 2050 if greenhouse gas emissions are allowed to stay the course. Remember this is the state which produced Pappy Pass the Biscuit O'Daniel and produces some of the highest greenhouse gas emissions in the US. Trust the governor to lead the fight against the EPA. I guess faith has trumped reason because where can you find companies that need a geological and evolutionary history of millions of years for their product- oil, led by people who only remember the last 6000 years of that fact when they go to church.

So here is my quixotic challenge.


If creationism can be taught as an alternative theory why not a new theory of destructionism. Here is the syllabus

1. Al Gore’s – Inconvenient Truth - The Book and Slide Show
2. Armageddon the movie
3. Movies similar to Armageddon
4. End of the world and coming of the Messiah groups from all over the US and their messages
5. Any other nut case theories from the state of Texas

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