July 26, 2013

David Doniger’s Blog
NRDC Switchboard

State and industry groups led by Texas and coal-based power companies lost another challenge to EPA’s carbon pollution standards today, the latest in their string of unsuccessful lawsuits trying to block EPA’s climate protection actions under the Clean Air Act.

The Court of Appeals in Washington upheld actions EPA took in 2010 to make sure that someone would be there to issue permits to big new sources of carbon pollution when Clean Air Act permitting requirements took effect in 2011.

To make a long story short, in 2009 and 2010 EPA issued the long-overdue "endangerment finding" – the scientific finding that carbon dioxide and other heat-trapping pollutants contribute to dangerous climate change – and a set of carbon pollution standards for new cars and trucks. Those standards automatically triggered Clean Air Act permitting requirements for large new carbon pollution sources – under the law no such plant could be built after the start of 2011 without a permit demonstrating that it will use the best available carbon pollution controls.

The Court of Appeals rejected Texas’s attack on those requirements in June 2012, in a case called Coalition for Responsible Regulation v. EPA.

The present case concerns steps EPA took to make sure that companies wanting to build big new plants had some permitting agency, state or federal, to turn to – some entity that could grant the permits they need to legally begin construction.

Every state except Texas worked with EPA to make sure that either the state or EPA would be available to keep new plant construction going by reviewing permit applications and making the necessary best-technology findings.

Only Texas refused. Texas flat-out denied that carbon permits were needed – a claim the Court of Appeals rejected in the 2012 case.

And so EPA stepped in as a temporary permitting agency. If EPA hadn’t kept the permitting lights on in Texas, then building or expanding a major industrial plant in the Lone Star State after January 2011 would have been a violation of federal law.

Texas sued, joined by Wyoming and trade associations for some of the biggest carbon polluters. Federal courts rejected Texas’s repeated attempts to block EPA while the case proceeded (see here and here).

Today’s court decision reaffirms that the Clean Air Act applies even in Texas, that it would have been illegal to build plants without the needed permits, and that EPA’s stepping in saved Texas companies and the Texas economy from all kinds of trouble.

In short, EPA’s actions helped, rather than hurt, Texas and its industry allies. Because they could not show injury, and because they’d be worse off if the court blocked EPA’s steps to keep the permitting lights on, the Court of Appeals ruled they had no standing to complain. Case dismissed.

Texas and its allies are on a long losing streak. The Supreme Court has twice upheld EPA’s Clean Air Act authority and responsibility to curb carbon pollution, in Massachusetts v. EPA and American Electric Power v. Connecticut. The Court of Appeals in Washington has turned away at least four challenges by these states and industry groups. I already mentioned the big 2012 decision in Coalition for Responsible Regulation (Texas is appealing to the Supreme Court, but that’s what’s charitably called a long-shot). A group of would-be new coal plants lost a challenge to EPA’s proposed carbon standards for new power plants. Just this month, the court overturned an industry-backed exemption for so-called biogenic carbon sources. And now today’s decisions.

When you are on a losing streak this bad, it’s time to fire somebody and look for a new strategy.