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Texas Home Alone: Another Court Rejects Challenge to Coming Carbon Standards

3p Contributor | Thursday December 30th, 2010 | 1 Comment

By David Doniger, policy director in NRDC’s Climate Center (Originally published on NRDC’s Switchboard Blog)

Texas just lost another round in its bizarre and solitary quest to block the first carbon pollution control requirements under the Clean Air Act, which take effect next week.   The Fifth Circuit Court of Appeals, in New Orleans, rejected the State’s request for a “stay” of one of the key steps being taken by the Environmental Protection Agency.  A three-judge panel today issued this ruling:

IT IS ORDERED that the motion for stay pending the disposition of the petition for review is DENIED. Petitioners have not met their burden to satisfy the legal standards required to allow a stay pending appeal.


The Fifth Circuit’s order follows on the rejection of the State’s stay request by the U.S. Court of Appeals for the District of Columbia Circuit on December 10th.  Texas went to Fifth Circuit for a second bite at the apple, but has fared no better in New Orleans than in Washington.

Once again, despite the grandstanding by Texas Governor Rick Perry and other elected leaders, the State has utterly failed to prove its case in the courts.  This is no surprise, because Texas – alone among the states – has a totally upside-down vision of what the Clean Air Act requires.

Governor Perry and Attorney-General Rick Abbott are accusing the dastardly EPA of seeking to impose a moratorium on construction of major sources of greenhouse gas emissions in Texas after January 2, 2011. But the very purpose of EPA’s actions is toprevent such a moratorium, which will take effect by operation of law in Texas unlessEPA steps in to avoid it. EPA is offering Texas a life-preserver and, bizarrely, Texas is treating it like a torpedo.

Yes, it’s that simple.  If Texas got its stay, construction of big carbon emitting sources would be blocked. By rejecting the State’s stay request, the courts are assuring that there will be no interruption in the ability of large new pollution sources to get the construction permits they need.

The upside-down story-line can also be found in an unusual Wall Street Journal op-edyesterday, co-authored by incoming House Energy and Commerce Committee Chairman Fred Upton and Tim Phillips, head of Americans for Prosperity, an astroturf front group for the Koch brothers and some of the country’s other biggest carbon polluters.  That op-ed continues to peddle the line that “the country could face a de facto construction moratorium on industrial facilities that could provide badly needed jobs.”  Not true, unless Texas got its way.  Fortunately, the courts have said no.

The sun will continue to rise on schedule next week.

* * *

Here is the complete Fifth Circuit order:

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 10-60961

STATE OF TEXAS; RICK PERRY, Governor of Texas; GREG ABBOTT,

Attorney General of Texas; TEXAS COMMISSION ON ENVIRONMENTAL

QUALITY; TEXAS DEPARTMENT OF AGRICULTURE; TEXAS RAILROAD

COMMISSION; TEXAS GENERAL LAND OFFICE; TEXAS PUBLIC UTILITY

COMMISSIONER BARRY SMITHERMAN; TEXAS PUBLIC

UTILITY COMMISSIONER DONNA NELSON; TEXAS PUBLIC UTILITY

COMMISSIONER KENNETH ANDERSON,

Petitioners

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent

Petition for Review of an Order of the Environmental Protection Administration

Before HIGGINBOTHAM, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

Petitioners have filed a motion for stay pending appeal requesting a ruling by January 2, 2011. Upon consideration of the motion for stay, the response thereto filed by Respondents, and Petitioners’ reply to such response, IT IS ORDERED that the motion for stay pending the disposition of the petition for review is DENIED. Petitioners have not met their burden to satisfy the legal standards required to allow a stay pending appeal.

The Respondent’s Motion for dismissal or in the alternative to transfer to the D.C. Circuit remains before the panel. The panel reserves its right to request further briefing on said motion.


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  • sustainable guy

    texas is backward on all issues. this is why the us is petroleum dependent because of texas and the bush clan.
    and in the next 10 yrs we are going to have an accounting of exactly how much the bush clan,gop,and big oil has cost the us.this 10 yr old war is “small potatoes” as lifelong careers will fall
    this goes back to carter and trickey dick.get ready for the wild ride.
    and with the groundwork laid and 40 yrs of examples that jew murdock will not influence this debate.