A Less-Than-Crushing Blow for the EPA

Last week, in response to a post Brantley Hargrove wrote about power giant Energy Future Holdings' slow death waltz with potential bankruptcy, a commenter gently smacked him for ignoring some Major News related to power plants, smokestacks, etc.

"And in other [news] this kid refuses to cover. The 5th Circuit Court of Appeals has once again slapped the shit out of his sainted EPA and found in favor of TCEQ [Texas Commission on Environmental Quality] with a vengeance," Max from the Sandspit wrote. To which Brantley responded, though not in these exact words, "GIVE ME A FRIGGIN' BREAK! I'M JUST ONE GUY! I MEAN, A FREAKISHLY HANDSOME GUY, SURE. BUT ONE GUY NONETHELESS!"

The editors shot Brantley in the neck with our handy editorial rhinoceros tranquilizer gun, and he's since calmed down. Still, that left a question. What was Max talking about? Could Unfair Park have missed a major story? Was something wrong with our Twitter feed?

Turns out, last week the 5th U.S. Circuit Court of Appeals did, in fact, rule against the EPA in one of the 9,475 cases ongoing between the agency and The Lone (Hack, Cough, Wheeze) Star (Cough, Snort, Hack) State. As shit-slappings go, though, this one was Small News.

The case concerned changes that the state wanted to make to how it grants permits to small-scale polluters looking to install or upgrade pollution controls. Changes like that must be approved by the EPA. After several years of unexplained dithering and deadline breaking, the EPA finally rejected that minor change to Texas' overall air pollution plan.

In fairness to Max from the Sandspit, the 5th Circuit judges were pretty unambiguous in telling the EPA to back down. Their opinion could almost be described as harsh. Boring, filled with acronyms and obscure citations, but harsh ... ish. Not that you can blame them. Who could find joy writing about MMRs and SIPs and NSRs? "C'mon, give us some cases about strip searches!" the judges were probably thinking. "With pictures!"

Regardless, the decision cheered some anti-EPA folks, who treated the ruling like a crushing blow to overweening federal authority. (They spun it, in other words.) But the state's victory was tiny compared with its really big cases still pending against the EPA -- on greenhouse gases, air pollution permits and cross-state air pollution rules, all of which threaten to put a crimp in Texas' management of its air -- and the state's economy, EPA opponents say. Many of those cases aren't being heard before the conservative 5th Circuit, but in the District of Columbia, i.e. Washington, Regulatory Moscow on the Potomac®. (If any big rulings come down in those cases, Brantley will almost certainly write about them, once he wakes up.)

"This is not a major smackdown," said Elena Craft, a health scientist with the Environmental Defense Fund. "This 5th Circuit case does not represent an apocalypse for the cross-state pollution rule or any in any other major rule."

So, sorry, Max from the Sandspit. You just won really big in a spring training game. That makes you feel better, maybe, but don't start dusting your trophy case quite yet.

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Patrick Williams is editor-in-chief of the Dallas Observer.
Contact: Patrick Williams