NEW ORLEANS (Legal Newsline) – After a federal appeals court put a stay on the Environmental Protection Agency's regional haze regulations in Texas and Oklahoma, the agency announced last year it was dropping the issue.
The regional haze regulation raised red flags within the state of Texas and Oklahoma, where it was aimed, as industries in the state saw dollar signs for its implementation that reduced pollution at national parks, monuments and wilderness areas.
EPA's decision came shortly after the new Trump administration was elected, and the EPA might have seen its authority in Texas wasn’t going to be as effective under the new Republican leader. The court ruled that the EPA was overstepping its authority and that a stay was necessary.
“The EPA tried to negotiate some kind of compromise deal and then the election happened,” said Seth Jaffe, attorney at Foley Hoag and coordinator of the firm's Environmental Practice Group.
“It was clear Texas didn’t have any need to compromise because things are only going to get better for them at this point. The surrender wasn’t really because of the stay. The surrender was really because of the election.”
The EPA looked to enact the regional haze regulations after Texas and Oklahoma failed to provide what the agency deemed adequate compliance plans for a regional haze measure under its Clean Air Act. Texas and its power-generating industry filed suit against the EPA in March 2016 claiming the costs to the state were more than the clean air benefits the regional haze regulation would bring to the state.
The EPA asked the court to dismiss the case due to improper jurisdiction, but the appeals court granted a judicial stay because of irreparable damage that could be caused in Texas and businesses in the state. The rule was stayed, allowing the Texas challenge to continue against the EPA’s regional haze rule and give the state the opportunity to overturn the regulation.
“EPA said the court should review it because it was nationwide in scope and effect,”Jaffe said. “The court said no and I think they were right.”
The EPA is fighting several cases regarding its Clean Air Act that may or may not continue in light of President Trump taking office.
“In a number of cases EPA will go back to the drawing board and redo the regulation in some way,” said Jaffe. “That in itself is going to be subject to judicial challenges.
“Those cases may well still go on. I don’t think there’s really a single generic answer. It is going to be case-by-case what the real issue is and what the EPA’s authority is and precisely what they did as to whether the case can get dismissed or go back to the drawing board on the rule and if they do that will that win."