The 5th U.S. Circuit Court of Appeals ruled Monday that the Environmental Protection Agency’s disapproval of Texas’ Flexible Permits program was not supported by the Clean Air Act.
Under the Flexible Permits program, which had been in place since 1994, the Texas Commission on Environmental Quality put a cap on allowed emissions from oil refineries and other industrial plants by facility. EPA officials announced in 2010 that they disapproved of the program because it might allow major polluters to exceed federal standards, record-keeping was inadequate and the methodology for calculating the emissions cap was unclear. As a result, those flexible permits were no longer accepted under the Clean Air Act. The facilities that already possessed flexible permits were subject to federal fines.
In the opinion, the court called the EPA’s disapproval of Texas’ program “untimely” and said it “unraveled approximately 140 permits” issued under the program. The court said the EPA’s reasoning was mainly based on wording, and not actual standards or procedures.
“A state’s ‘broad responsibility regarding the means’ to achieve better air quality would be hollow indeed if the state were not even responsible for its own sentence structure,” the court says in the opinion.
The opinion says the EPA must further consider the program.
Elena Craft at the Environmental Defense fund pointed out that the court’s decision does not rubber stamp Texas’ Flexible Permits program, but rather deems the EPA’s reasons for disapproving the program inadequate. The program still needs approval from the EPA to exist.
“The reality is that there’s no real change of the situation on the ground,” Craft said. “These [permits] are still not approved by the EPA, so they’re still susceptible to government enforcement until approved.”
The flex permits may yet be denied, but not until further review and not on the grounds cited so far. This story isn’t finished yet.