Obama Administration undermines transparency openness in government by depriving Texans of a public notice & comment period
Texas Insider Report: AUSTIN Texas Once again the federal government is overreaching & improperly intruding upon the State of Texas and its legal rights"said Attorney General Greg Abbott earlier today while filing legal action on behalf of the State of Texas to challenge the federal governments attempt to take over Texas air permitting program. Court documents filed by the State explain that the U.S. Environmental Protection Agencys improper overreach violates the Clean Air Act which mandates a cooperative relationship between the federal government and the states.
Unlike every other similarly regulated state Texas and only Texas was singled out by the EPA which is attempting to take over the States air permitting program effective Jan. 2 2011.
The States legal action involves the EPAs unprecedented effort to regulate so-called greenhouse gas emissions under the Clean Air Act. The Obama Administrations EPA recently released regulations to reverse nearly 40 years of precedent and cooperative enforcement by attempting to unilaterally impose its policy prerogatives on the State of Texas.
By unilaterally asserting federal control over Texas air permitting program the Obama Administration violated the Clean Air Act the EPAs own regulations and important legal protections that foster transparency and openness in government such as the requirement that new federal rules be subject to a public notice and comment period.
With new regulations the EPA is both unlawfully commandeering Texas environmental enforcement program and violating federal laws that give the State and its residents the opportunity to fully participate in the regulatory process" Attorney General Abbott said.
Transparency and openness in government which is the very purpose of the public notice and comment period ignored by the EPA are vital to our democratic system of government and like the legal rights guaranteed to the State of Texas cannot be simply overlooked because the Administration wants to impose unilaterally its agenda on the American people" said Abbott.
Under the federal Clean Air Act preventing air pollution is the primary responsibility of States and local governments" not the federal government. Since the Acts passage in 1972
the Texas Commission on Environmental Quality (TCEQ) not the EPA has been the primary authority for issuing Clean Air Act permits in the State of Texas.
TCEQ issues permits under air permitting procedures prescribed by state law. Like many other states Texas law does not currently deem greenhouse gases such as carbon dioxide to be pollutants.
Todays petition for review was filed by Attorney General Abbott on behalf of:
- Gov. Rick Perry
- the Texas Commission on Environmental Quality
- the Texas Department of Agriculture
- the Texas Railroad Commission
- the Texas General Land Office
- and Texas Public Utility Commissioners Barry Smitherman Donna Nelson and Kenneth Anderson.
Under TCEQs watch Texas air permitting program has successfully reduced harmful emissions in the State of Texas at a higher rate than most other states. Emissions data cited by the Governors Office indicates that the Texas clean air program achieved a 22 percent reduction in ozone and a 46 percent reduction in nitrous oxide which outpaces the eight percent and 27 percent reductions that were recorded nationally.
Since the Clean Air Acts inception Texas air permitting laws have never required TCEQ to regulate so-called greenhouse gases such as carbon dioxide. And under previous administrations including the Clinton Administration the EPA has affirmed that Texas air permitting laws are consistent with the Clean Air Act.
The EPAs legally flawed and economically harmful plan to regulate carbon dioxide under the Clean Air Act is the subject of other legal challenges currently being pursued by the Texas Attorney Generals Office.
Earlier this year the EPA indicated that Texas and 12 other states could have until December 11 2011 approximately one year to implement new air permitting procedures regulating greenhouse gases. That announcement however ignored
the Clean Air Act which requires that the EPA give states at least three years to enact any sweeping amendments to their air permitting programs.
Today the EPA reversed course and declared that rather than give Texas even a year it would unilaterally take over the States air permitting responsibilities on Jan. 2 2011.
While the EPAs original Dec. 11 2011 deadline was itself legally baseless the EPA now has deprived Texas of any opportunity to revise its laws when the Clean Air Act provides a three-year period for states to contemplate and enact such changes.
As the Attorney Generals motion for stay explains the EPAs actions are arbitrary and capricious and violate both the Clean Air Act and the Administrative Procedure Act. In an attempt to justify its takeover of Texas duly-enacted permitting program the Obama Administration today rejected Texas air permitting laws that the EPA had already approved 18 years ago.
Additionally rather than comply with laws that require the public be given the opportunity to provide input the EPA hurriedly imposed its takeover of Texas air permitting program without any public comment or debate. Thus not only did the Obama Administration violate the States legal rights by failing to comply with mandatory procedures the EPA also failed to provide the State of Texas and its residents a meaningful say in the way air quality is regulated in Texas which is required under the Clean Air Act.
Instead the EPA has attempted to shut off any public scrutiny of its actions.
The States petition for review and request for emergency stay were filed with the U.S. Court of Appeals for the D.C. Circuit and ask the federal court to immediately
halt the EPAs improper attempt to commandeer Texas air permitting program.
The petition for review will be followed by further legal briefs from both the State of Texas and the EPA.
The States emergency motion for stay asks the court to issue a stay by Jan. 2 2011 in order to halt the EPAs scheduled takeover of Texas air permitting program.
