Texas v. Lisa P. Jackson Over Carbon Dioxide Regulations

Texas is resisting the Environmental Protection Agency's decision to regulate carbon under the clean air laws of the 1970s. EPA is also threatening to punish Texas and other states that do not comply with the CO2 reduction program with a de facto moratorium on any major energy or construction projects. Under the Clear Air Act, the EPA's national office chooses priorities, but state regulators run the programs and issue the necessary permits. When orders from HQ change, as with carbon over the last year, states get three years to revise their "implementation plans." But in August, EPA decided that the law posed too long a wait and decreed that if these plans aren't updated by an arbitrary January 2011 deadline, that EPA will override the states and run the carbon permitting process itself. 

Texas believes this coercion is illegal and that EPA cannot usurp the law's statutory language about the federalist balance of power between Washington and the states. Texas filed an unusual lawsuit last week with the D.C. appeals circuit calling it an "ultra vires" act—literally, "beyond the powers"—and requesting an emergency stay of the EPA's regulations because of the imminence of irreparable harm.

No major construction project in America can go forward without EPA air quality and pollution permits. Texas believes that EPA's decision to strip permitting authority from the states is equivalent to a ban on major construction or building expansion—not merely Texan refineries but any kind of carbon-heavy utility, industrial production, manufacturing plant or even large office buildings.  The Texas Commission on Environmental Quality, the state EPA branch, estimates that 167 current state projects would have to be junked in 2011, more after the first year.  (WSJ, 10/10/2010)