Categories: Clean Air Act

EPA Haze Rule – U.S. Court of Appeals for the 5th Circuit Stays EPA From Implementing Final Haze Rule in Texas and Oklahoma.

The federal Clean Air Act requires the states and the federal government to establish and meet targets for visibility in protected national parks and wildlife areas through regulations that control air pollutants in ambient air. 42 U.S.C. §§ 7410, 7491, 7492(e)(2). The federal government has the primary responsibility for identifying air pollutants and setting standards. The states, however, bear the primary responsibility for implementing those EPA standards by promulgating state implementation plans (“SIPs”). In accordance with the Act, the EPA issued a Regional Haze Rule in 1999 requiring states (1) to develop implementation plans by the end of 2007 for the 2009–2018 period and (2) to submit revised plans every ten years thereafter. 40 C.F.R. § 51.308(b), (f).

In January 2009, EPA found that Texas and Oklahoma (and several other states) had missed the 2007 deadline. Texas and Oklahoma subsequently submitted plans which were partially disapproved by EPA. In 2014, EPA proposed substitute federal plans and later issued its Final Rule in 2016. 81 Fed. Reg. 296 (Jan. 5, 2016). Claiming that the EPA was improperly targeting coal-fired power plants, the State of Texas, power plants, numerous energy companies, state regulators, and others filed a petition to review the Final Rule in the U.S. Court of Appeals for the 5th Circuit (“5th Circuit”). State of Texas v. U.S. Environmental Protection Agency, Case No. 16-60118. On July 15, 2016, the 5th Circuit issued an order denying EPA’s motion to dismiss or transfer of venue of the petition, finding that:

• The 5th Circuit, which encompasses Texas, has jurisdiction to review the Final Rule pursuant to the Clean Air Act, 42 U.S.C. § 7607(b)(1);
• Venue in the 5th Circuit is proper because the petitioners’ challenge addresses locally or regionally applicable action under the Act; and,
• Because staying implementation of the Final Rule was warranted, the 5th Circuit granted petitioners’ motion for a stay pending resolution of the petitions for review on the   merits.

Because the EPA’s actions involve 37 other states in other federal circuits, this matter may see inconsistent analyses by the several federal circuit courts and require final resolution by the U.S. Supreme Court.

Recent Posts

Big Win in California Real Estate Dispute

Welborn attorneys Sam Bacon, Ed Blieszner, and Matt Nadel recently secured dismissal of all claims…

1 week ago

Team Building at the Inaugural Welborn Olympics

Welborn had a blast at our attorney retreat in Vail last week! The retreat gave…

2 weeks ago

Summary Judgment Win for Welborn Team

The Welborn team of Sam Bacon, David Hrovat, and Joe Pierzchala recently won summary judgment…

1 month ago

Golfing for a Cause

The weather was ideal for last week's 2024 Annual Denver Petroleum Club Golf Tournament! Welborn…

1 month ago

Two Welborn attorneys’ work featured in recent publications

In the Summer 2024 edition of the American Bar Association's Natural Resources & Environment, Danielle…

2 months ago

New additions to our Denver office

We are thrilled to announce the newest additions to our Denver office:  Andrew Comer, a…

3 months ago