Appeals court rules against EPA in split decision

by ED STERLING

The New Orleans-based U.S. Fifth Circuit Court of Appeals on Aug. 13 vacated the U.S. Environmental Protection Agency’s disapproval of the state program governing releases of air pollutants by Texas industries.

Among several findings in the majority opinion released following a 2-1 ruling by a three-judge panel of the court, the EPA’s 2009 ruling disapproving Texas’ emissions control program came 16 years too late. The program, featuring flexible permitting to meet federal air pollution guidelines, originally was submitted for the EPA’s review by then-Gov. Ann Richards in 1994.

“Despite the U.S. Clean Air Act’s mandate that the EPA approve or disapprove a ‘State Implementation Plan’ revision within 18 months of its submission, the EPA delayed formal consideration of the Texas Flexible Permit Program for more than a decade,” the majority opinion stated.

In his dissent to the majority opinion, Judge Patrick Higginbotham alluded to the politically charged quality of the case in stating, “Angst over perceived federal intrusion in to state affairs ought to be eased by the reality that laws enacted by Congress are laws of the states.”

Named as petitioners in the case were the State of Texas, Texas Oil & Gas Association, Texas Association of Manufacturers, BCCA Appeal Group, American Chemistry Council, American Petroleum Institute, National Association of Manufacturers, National Petrochemical and Refiners Association, Texas Association of Business, Texas Chemical Council and the Chamber of Commerce of the United States of America.

Gov. Rick Perry, Attorney General Greg Abbott, Texas Commission on Environmental Quality Chairman Bryan W. Shaw and other state government officials hailed the ruling.

Shaw, in an Aug. 14 reaction, commented, “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 Lone Star Chapter of the Sierra Club posted a reaction to the ruling from Neil Carman, the chapter’s Air Program director. Here’s an excerpt: “It is important to realize that until EPA approves the flexible permitting system, the TCEQ must rely on the existing air pollution permitting program. The court ruling today does nothing to change that fact.”

Date set for UT case

Oct. 10 is the date set by the U.S. Supreme Court to hear oral arguments in Fisher v. University of Texas at Austin, a case that will test the institution’s use of race as a factor in its admissions policy.

A white student who qualified for admission under the “top 10 percent” rule but was not admitted brought the case.

State Sen. Rodney Ellis, D-Houston, and 37 other members of the Texas House and Senate who also are Democrats on Aug. 13 filed a friend-of-the-court brief defending UT’s admissions policy and efforts to increase diversity on college campuses.

“I fear that if the Supreme Court overturns UT’s admissions policies, we will likely see campuses that do not reflect a state as diverse as Texas,” Ellis said.

Ranger chief named

The Texas Department of Public Safety and its oversight agency, the Texas Public Safety Commission, announced the appointment of Kirby Dendy as assistant director/chief in charge of the Texas Rangers effective Sept. 1.

Dendy, who joined the DPS in 1971 and worked as a highway patrol trooper and narcotics agent, had served as second in command of the Texas Rangers since 2011. His promotion follows the retirement of Ranger Chief Hank Whitman.

Notes given high ratings

The Texas Comptroller of Public Accounts on Aug. 14 announced that Wall Street bond raters have given their highest ratings to this year’s Texas Tax and Revenue Anticipation Notes.

“These annual one-year notes are sold to help fund school payments and manage cash flow between the start of a fiscal year and the arrival of tax revenue later in the year,” the comptroller’s office explained.

The sale of nearly $10 billion worth of the notes took place Aug. 21; the notes will be repaid on Aug. 30, 2013.

An official statement from Standard & Poor’s, one of the bond-rating firms, said, “Texas’ economy has not only recovered faster than most states’ but the state continues to outperform the nation in terms of employment growth and economic output.”

Ed Sterling works for the Texas Press Association and follows the Legislature for the association. 

edsterling@texaspress.com

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