Earlier this month, the 5th Circuit Court of Appeals stayed EPA’s disapproval of the Texas and Oklahoma regional haze state implementation plans, as well as EPA’s promulgation of its own federal implementation plan. The opinion is a thorough rejection of EPA’s decision. Although this was only a stay order, I would rate EPA’s likelihood of ultimately prevailing on the merits as approximately zero. There are a number of significant take-aways from the decision:
- EPA’s assessment of regional haze SIPs is not generally of “nationwide scope or effect” and therefore will be subject to review in the court of appeals responsible for the state at issue, rather than in the D.C. Circuit.
- EPA did not have authority to require Texas to “conduct a source-specific analysis.”
- EPA could not impose emissions controls that would not even take effect until outside the time period covered by the SIPs at issue. As the Court noted, the Regional Haze Rule itself requires states to:
consider . . . the emission reduction measures needed to achieve [the reasonable progress goal] for the period covered by the implementation plan
- EPA failed to address adequately the reliability concerns raised by the plaintiffs. Here, it is noteworthy that the Court refused to grant EPA any real deference, because EPA is an expert on environmental issues, but not on energy reliability.
I was disappointed that the Court concluded it did not have to address whether EPA’s decision to set a cost threshold on a $/ton basis rather than a $/deciview basis was flawed. As I have previously ranted, the point of the regional haze rule is to increase visibility. We have a measure of visibility – deciviews. What possible justification is there for EPA to measure cost-effectiveness by using a proxy — $/ton of pollutant removed – when there is no need to use a proxy, because we have a measure of the actual goal we are seeking to attain?
There’s actually an answer to this question, which I had not realized until I read the decision. It may be cynical, but it appears that EPA wants to use $/ton removed, because those tons removed help EPA attain other environmental benefits that are ancillary to the Regional Haze Rule goals, thus making the cost-effectiveness calculus look much more attractive.
Oh, what a tangled web we weave
When first we practice to deceive!