Courts continue to criticize EPA

Michael P. Tremoglie Mar. 28, 2012, 10:23am


NEW ORLEANS (Legal Newsline) - For the third time in less than a week, a federal court has reversed an order by the Environmental Protection Agency.

This most recent was the Monday opinion delivered by the U.S. Court of Appeals for the Fifth Circuit, New Orleans in Luminant v. EPA.

The court vacated the EPA's disapproval of Texas' environmental emission regulations relevant to the power industry. It vehemently rejected the agency's actions saying "the EPA had no legal basis
on which to disapprove those regulations." The court also said that the EPA's disapproval was "based on its purported nonconformity with three extra-statutory standards that the EPA created out of whole cloth."

This unprecedented string of reversals of federal government action began March 22 with the U.S. Supreme Court's ruling in Sackett v. EPA. It continued the following day, March 23, with a U.S. District Court Appeals for the District of Columbia ruling in Mingo Logan v. EPA. Each time the court vehemently criticized the EPA for exceeding its regulatory.

Judge Jennifer Walker Elrod who wrote the Luminant opinion emphasized the EPA's callousness. She said, "... the EPA did this in the context of a cooperative federalism regime that affords sweeping discretion to the states to develop implementation plans and assigns to the EPA the narrow task of ensuring that a state plan meets the minimum requirements of the Act.

"The EPA applied these unauthorized standards to disapprove of a state program for projects that reduce air pollution and that, under the Act's plain terms, is subject to only the most minimal regulation."

Many concur with Elrod and those of the other courts. They are cautiously optimistic about the courts being able to prevent the EPA from what they see as increasing governmental power.

James Taylor of the Heartland Institute, a free-market think tank is one. He is pessimistic about it.

"It is troubling that EPA feels it has a right to grab powers that it was never granted," he said. "When EPA was created, it was supposed to work in cooperation with state and local governments. Unfortunately, the Sackett, Mingo Logan Coal and Luminant Generation cases show that EPA continues to grab for ever-increasing power over the economy, the states and individual rights.

"It is welcome news that the courts are occasionally standing up to EPA overreach, but these legal opinions are like trying to fix a leaking dam with bubble gum. EPA needs to be fundamentally reformed, or at the very least confined again to its original parameters."

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U.S. Environmental Protection Agency (EPA)
1200 Pennsylvania Ave NW
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