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Texas v. United States Environmental Protection Agency

ELR Citation: 46 ELR 20126
Nos. 16-60118, (5th Cir., 07/15/2016)

The Fifth Circuit stayed EPA's regional haze plan for Oklahoma and Texas until the underlying petitions for review challenging the rule are resolved. Texas, energy companies, power plants, and others challenged EPA's action disapproving Oklahoma's and Texas' plans and imposing its own plans instead. The petitioners argued that EPA's federal implementation plan (FIP), under the "guise of requiring imperceptible haze reductions," has actually targeted coal-fired power plants. They claim that the proposed changes at the targeted power plants would cost $2 billion, rendering them uneconomical and forcing the plants to close. The petitioners therefore requested a stay of the final rule to avoid the irreparable damage they assert the FIP would impose. EPA moved to dismiss or transfer the petition, arguing that jurisdiction lies only in the D.C. Circuit. But the court held that venue is appropriate in the Fifth Circuit because the challenge addresses a "locally or regionally applicable" action that is not based on a determination having nationwide scope or effect. As for the requested stay, the petitioners demonstrated a strong likelihood of success in establishing that EPA acted arbitrarily, capriciously, and in excess of its statutory authority when it disapproved the Texas and Oklahoma plans and imposed a FIP. In addition, petitioners demonstrated they are likely to suffer irreparable injury in the absence of a stay while EPA failed to show similar injury from the issuance of a stay. And the public interest weighs in favor of a stay.