Court Faults EPA's Rejection of Flexible Permits Program

The 5th U.S. Circuit Court of Appeals ruled Monday that the Environmental Protection Agency's disapproval of Texas' Flexible Permits program was not supported by the Clean Air Act.

Under the Flexible Permits program, which had been in place since 1994, the Texas Commission on Environmental Quality put a cap on allowed emissions from oil refineries and other industrial plants by facility. EPA officials announced in 2010 that they disapproved of the program because it might allow major polluters to exceed federal standards, record-keeping was inadequate and the methodology for calculating the emissions cap was unclear. As a result, those flexible permits were no longer accepted under the Clean Air Act. The facilities that already possessed flexible permits were subject to federal fines.

In the opinion, the court called the EPA's disapproval of Texas' program “untimely” and said it “unraveled approximately 140 permits” issued under the program. The court said the EPA's reasoning was mainly based on wording, and not actual standards or procedures.

“A state’s 'broad responsibility regarding the means' to achieve better air quality would be hollow indeed if the state were not even responsible for its own sentence structure,” the court says in the opinion.

The opinion says the EPA must further consider the program.

The TCEQ praised the decision, calling it a “victory for Texas, our environment and our economy.”

“The court recognized the important principles that the EPA must comply with the cooperative federalism envisioned by the federal Clean Air Act and its own administrative procedures in order to bring certainty to the states and regulated communities,” said Terry Clawson, a TCEQ spokesman.

A request for comment was not immediately returned by the EPA.

The Texas Oil and Gas Association and Texas Attorney General Greg Abbott also voiced support for the decision. 

“This ruling is a victory for Texas jobs and confirms what we’ve said from the start – that the EPA’s actions were baseless and nothing more than a federal power grab by an administration that is desperate to extend its control over businesses, with no regard for the consequences of their actions," Abbott said. 

But Elena Craft at the Environmental Defense fund pointed out that the court's decision does not rubber stamp Texas' Flexible Permits program, but rather deems the EPA's reasons for disapproving the program inadequate. The program still needs approval from the EPA to exist.

“The reality is that there's no real change of the situation on the ground,” Craft said. “These [permits] are still not approved by the EPA, so they're still susceptible to government enforcement until approved.”