Federal court denies stay in Texas’ lawsuit against EPA

No love from the Fifth Circuit.

Texas’ bid to stop the federal government’s efforts to regulate greenhouse gases hit another roadblock today, when the 5th Circuit Court of Appeals turned down the state’s request for a stay of a move to force states to implement federal plans.

“Petitioners have not met their burden to satisfy the legal standards required to allow a stay pending appeal,” the court said, in its short denial.


Texas’s efforts are hardly over, however. “The Respondent’s Motion for dismissal or in the alternative transfer to the D.C. Circuit remains before the panel,” the 5th Circuit said.

You can read the denial here; there’s not much more to it than was quoted above. As noted, the case itself is still ongoing, so denying the request to halt the EPA before it begins doesn’t mean that the suit will be resolved in the EPA’s favor. And this particular setback hasn’t stopped the state from filing more lawsuits.

The Texas petition to the U.S. Circuit Court of Appeals for the District of Columbia accuses the Environmental Protection Agency of abusing its powers by taking control of the permitting program without proper public notice. The EPA made the unilateral move Dec. 23.

“Once again, the federal government is overreaching and improperly intruding upon the state of Texas and its legal rights,” Texas Attorney General Greg Abbott said in a statement. Typically, the federal government delegates implementation of Clean Air Act rules to the states.

Abbott previously filed a challenge to the new rules, saying their underpinnings — that the gases threaten public health by warming the planet – are based on faulty data. Two federal appeals courts, including the Fifth Circuit Court of Appeals as recently as Wednesday, rejected his requests for a stay while the lawsuit is pending.

Al Armendariz, the EPA’s regional administratorbased in Dallas, criticized Texas “politicians” for filing suit again “instead of working with EPA to protect Texans’ health and welfare.”

You can read AG Abbott’s fulminations here, if that’s your thing. As the HuffPo reports, we’re in for a long and drawn-out fight. A statement from the Environmental Defense Fund is beneath the fold, while Grist and Kos have related items.

Cleaner Air for America: 5th Circuit Denies Texas’ Attempt to Forestall the Implementation of the EPA’s Stationary Source Greenhouse Gas Rules

Statement from EDF Texas Regional Office Director Jim Marston

(Austin, TX – December 29, 2010) The U.S. Court of Appeals, 5th Circuit (5th Circuit) today denied the State of Texas’ motion to stay the Greenhouse Gas State Implementation Plan Call Rule (GHG SIP Call), concluding–as did the U.S. Court of Appeals, D.C. Circuit (D.C. Circuit).Texas filed this challenge last week. requesting a stay in an attempt to forestall the implementation of the Environmental Protection Agency’s (EPA) stationary source GHG rules and to re-litigate issues Texas had already lost before the D.C. Circuit. This is the second court to deny Texas’s attempt to circumvent the EPA’s responsibilities under the Clean Air Act, signed by President Nixon to protect the American public from air pollution.

EDF President Fred Krupp and Texas Regional Office Director Jim Marston made the following statements:
“EPA’s commitment to address the dangerous, climate-disrupting pollution from power plants through common sense national standards will provide important environmental protections and will create economic certainty for vibrant new investments. This is a step that will allow us to protect our children’s health and our prosperity.”

-Fred Krupp, Environmental Defense Fund President

“At a time when Texas is facing a multi-billion dollar budget shortfall, EDF urges Governor Perry and Attorney General Abbott to stop wasting tax payer dollars on frivolous lawsuits, which only seek to protect big polluters.”

-Jim Marston, Environmental Defense Fund Texas Regional Office Director

U.S. power plants are one of the single largest sources of airborne contaminants. They discharge more than 30 percent of all global warming pollution in America, about 40 percent of our toxic mercury, and almost two-thirds of our sulfur dioxide (which transforms into deadly fine particulate pollution and contributes to acid rain).


Environmental Defense Fund (edf.org), a leading national nonprofit organization, creates transformational solutions to the most serious environmental problems. EDF links science, economics, law and innovative private-sector partnerships. See twitter.com/EDFCleanEnergy; facebook.com/EnvDefenseFund

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