NEW ORLEANS (Legal Newsline) – After a federal appeals court put a
stay on the Environmental Protection Agency's regional haze regulations
in Texas and Oklahoma, the agency announced last year it was dropping
The regional haze regulation raised red flags within the state of
Texas and Oklahoma, where it was aimed, as industries in the state saw
dollar signs for its implementation that reduced pollution at national
parks, monuments and wilderness areas.
EPA's decision came shortly after the new Trump administration was
elected, and the EPA might have seen its authority in Texas wasn’t going
to be as effective under the new Republican leader. The court ruled
that the EPA was overstepping its authority and that a stay was
“The EPA tried to negotiate some kind of compromise deal and then
the election happened,” said Seth Jaffe, attorney at Foley Hoag and
coordinator of the firm's Environmental Practice Group.
“It was clear Texas didn’t have any need to compromise because
things are only going to get better for them at this point. The
surrender wasn’t really because of the stay. The surrender was really
because of the election.”
The EPA looked to enact the regional haze regulations after Texas
and Oklahoma failed to provide what the agency deemed adequate
compliance plans for a regional haze measure under its Clean Air Act.
Texas and its power-generating industry filed suit against the EPA in
March 2016 claiming the costs to the state were more than the clean air
benefits the regional haze regulation would bring to the state.
The EPA asked the court to dismiss the case due to improper
jurisdiction, but the appeals court granted a judicial stay because of
irreparable damage that could be caused in Texas and businesses in the
state. The rule was stayed, allowing the Texas challenge to continue
against the EPA’s regional haze rule and give the state the opportunity
to overturn the regulation.
“EPA said the court should review it because it was nationwide in
scope and effect,”Jaffe said. “The court said no and I think they were
The EPA is fighting several cases regarding its Clean Air Act that
may or may not continue in light of President Trump taking office.
“In a number of cases EPA will go back to the drawing board and
redo the regulation in some way,” said Jaffe. “That in itself is going
to be subject to judicial challenges.
“Those cases may well still go on. I don’t think there’s really a
single generic answer. It is going to be case-by-case what the real
issue is and what the EPA’s authority is and precisely what they did as
to whether the case can get dismissed or go back to the drawing board on
the rule and if they do that will that win."