Texas Governor Rick Perry may not have been able to recall if he wanted to shut down the U.S. Environmental Protection Agency, but all Americans should remember the public service that he and his fellow Texans have done by challenging EPA's overreaching regulation. This week the federal Fifth Circuit Court of Appeals obliterated a 2010 EPA ruling that disapproved Texas's program to meet national air-quality standards.
These standards are set by the EPA, but it's up to individual states to figure out how to meet them under the Clean Air Act. EPA has the authority to reject such plans, but only with cause. Such cooperative federalism is rooted in the constitutional balance of state and federal power that was so much on display this week in the Supreme Court's consideration of ObamaCare.
This week the appellate court found that the EPA "failed to identify a single provision of the Act that Texas's program violated, let alone explain its reasons for reaching its conclusion." The court noted that the EPA had missed the statutory deadline for issuing a rejection by more than three years. It's hard to find a clearer example of Washington-created uncertainty than fact-free rulings that an agency lacks the authority even to issue.
... You might expect that when a federal agency bigfoots into areas traditionally reserved to the states, it would cite some kind of authority. Perhaps the Constitution, or maybe a law passed by Congress? The Fifth Circuit reports that "authorities" cited by the EPA in this case included "several internal memoranda and guidance documents." Are emails among agency staff now authorization for the exercise of power in the Obama era?
Instead the EPA resorted to claiming that the plan somehow violated Texas law. The Fifth Circuit drop-kicked this argument and called it "arbitrary and capricious" because even the EPA itself has recognized that the Clean Air Act gives the EPA zero authority to judge whether such plans comply with state laws. The appeals court examined other EPA justifications and concluded in one instance that the agency's argument had "no legal basis" and in another that the EPA was applying criteria "created out of whole cloth." This is not a compliment....
This is a big win for Texas in the war the Obama administration has declared against this state. The EPA is losing other battles in the courts as they seek to expand their reach. What was really screwy about the EPA power grab is that the methods used by Texas were actually achieving the results the EPA required, they just did not like the way they did it.
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