NEWS: Wall Street Journal: "EPA Smack-Down Number Six"

August 22, 2012

The U.S. Court of Appeals for the D.C. Circuit yesterday struck down EPA’s costly Cross-State Air Pollution Rule, ruling the agency had acted in excess of its statutory authority. Just last week, a federal appeals court vacated EPA’s disapproval of Texas’ flexible permitting program. This emerging trend in the courts underscores just how far EPA Administrator Lisa Jackson has gone to push through EPA’s reckless regulatory agenda. EPA continues to fight the law in an effort to justify its job-destroying regulations, but this time, the law won.

EPA Smack-Down Number Six
A federal court cashiers another illegal Obama regulation
The Wall Street Journal
August 21, 2012

The Environmental Protection Agency has been waging a regulatory war on Texas—and losing in the federal courts. On Tuesday the U.S. Court of Appeals for the D.C. Circuit struck down another misguided EPA rule. …

In Tuesday's decision, two of the three judges on the appellate panel found that under the rule "upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State's nonattainment. EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text."

The court found that the feds also broke the law by dictating the measures to be used to reduce emissions instead of allowing states to design their own plans, as the statute demands. "Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable," wrote Judge Brett Kavanaugh.

The flawed rule would have hit coal-fired electric plants in particular, and especially those based in Texas. EPA's illegal micro-managing of state air-quality plans was so specific that immediately after the rule-making it was clear that coal-powered energy production at Texas-based plants operated by Luminant, a big utility, would have to be cut. Tuesday's ruling means Luminant will be able to keep 1,300 megawatts of power online in Texas, which needs more electricity because unlike other parts of the U.S. in the Obama era it is growing.

Luminant had announced it would need to lay off roughly 500 workers in mining and electricity production. Now the utility says those jobs have been spared, thanks to the court's intervention. …

The court's decision states it plainly: "Absent a claim of constitutional authority (and there is none here), executive agencies may exercise only the authority conferred by statute, and agencies may not transgress statutory limits on that authority."

The message is that regulators must follow the laws of the United States. Why do federal judges constantly have to remind EPA Administrator Lisa Jackson of this basic principle?

Read the entire editorial online here.

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