Texas seeks home-court edge in bid to block climate rules

A week after a panel of federal judges in Washington, D.C., turned down a request to freeze the Obama administration's new greenhouse gas regulations, Texas Gov. Rick Perry (R) has taken the fight to another court -- this time, in his own backyard.

U.S. EPA's new rules for power plants, refineries and other large industrial facilities will "deprive Texas of its right to manage its air resources," the state says in a petition filed last week with the 5th U.S. Circuit Court of Appeals. The plea to the New Orleans-based court, which has jurisdiction over Texas but doesn't usually review challenges to Clean Air Act programs, is the state's last-ditch effort to stop the regulations from taking effect in two weeks.

In a ruling earlier this month, the U.S. Circuit Court of Appeals for the District of Columbia decided that Texas' claims didn't justify putting the rules on hold as a slew of lawsuits from businesses, advocacy groups and states unfold (E&ENews PM, Dec. 10).

Barring action by Congress, which is seen as unlikely this year, the new rules would be allowed to take effect on Jan. 2, 2011.

Starting on that date, air pollution permits in all 50 states would need to include carbon dioxide and other gases that are contributing to global warming. For large facilities such as coal-fired power plants, refineries or steel mills, that would mean using the best available technology to avoid releasing those greenhouse gases.


The regulations, which were prompted by a 2007 Supreme Court ruling that put greenhouse gases under the purview of the Clean Air Act, are a key plank of the Obama administration's plan to address climate change without a cap-and-trade program. But the nation's laws don't allow the federal government to "commandeer the states to carry out its ends," Texas Attorney General Greg Abbott (R) argues in the new petition.

"EPA attempts just that by threatening Texas with severe economic harm unless the state adopts, on an unrealistic timeline, EPA's greenhouse gas regulations, which are themselves unlawful," the filing says.

Ever since the permitting rules were finalized in June, states have been scrambling to put them in place. It was a quicker-than-usual turnaround for the states, and the White House Office of Management and Budget is currently reviewing a series of measures that would serve as a federal backstop for the areas of the country that can't -- or won't -- issue permits on Jan. 2 (Greenwire, Dec. 10).

Though more than a dozen states have challenged the requirements, Texas alone has invited a showdown by refusing to include greenhouse gases in its permits.

States typically have a year to revise their air pollution rules before EPA can take over, but the agency is now readying a special program that would allow businesses to sidestep Texas and get permits for their greenhouse gases.

EPA sent the rule to the White House on Friday. Top agency officials have said it will be in place by the end of the year.

In a court filing Friday, the Obama administration urged the 5th Circuit to throw out Perry's new petition, saying that the D.C. Circuit is responsible for weighing these types of requests. Texas' request is "an improper attempt to re-litigate before this court its unsuccessful arguments," the Justice Department argued in its response.

David Doniger, the chief climate attorney for the Natural Resources Defense Council, said he expects the 5th Circuit to turn Texas down.

"You don't get to go shopping with the same arguments in a second court when you lose in the first," he wrote in a blog post yesterday.

Click here to read Texas' petition.

Click here to read the Justice Department's response.

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