EPA Smack-Down Number Six

A federal court cashiers another illegal Obama regulation.

WSJ.com

The Environmental Protection Agency has been waging a regulatory war on Texas—and losing in the federal courts. On Tuesday the U.S. Court of Appeals for the D.C. Circuit struck down another misguided EPA rule.

Enacted in August 2011, the Cross-State Air Pollution Rule was supposed to reduce air pollution emitted in one state and carried downwind to another. Under the Clean Air Act, if pollution from the upwind state is causing the downwind neighbor to fail federal air quality tests, then the EPA can order the upwind state to reduce the emissions causing the problem.

But even such expansive authority from Congress is never enough for the Obama EPA. So the agency decided to use the rule-making as a pretext to force down emissions even further—illegally, as it turns out.

In Tuesday's decision, two of the three judges on the appellate panel found that under the rule "upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State's nonattainment. EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text."

The court found that the feds also broke the law by dictating the measures to be used to reduce emissions instead of allowing states to design their own plans, as the statute demands. "Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable," wrote Judge Brett Kavanaugh.

The flawed rule would have hit coal-fired electric plants in particular, and especially those based in Texas. EPA's illegal micro-managing of state air-quality plans was so specific that immediately after the rule-making it was clear that coal-powered energy production at Texas-based plants operated by Luminant, a big utility, would have to be cut. Tuesday's ruling means Luminant will be able to keep 1,300 megawatts of power online in Texas, which needs more electricity because unlike other parts of the U.S. in the Obama era it is growing.

Luminant had announced it would need to lay off roughly 500 workers in mining and electricity production. Now the utility says those jobs have been spared, thanks to the court's intervention.

According to a scoreboard by the American Action Forum, Tuesday's rebuke from the D.C. Circuit marks the 15th time that a federal court has struck down an Obama regulation, and the sixth smack-down for the Obama EPA. This tally counts legally flawed rules as well as misguided EPA disapprovals of actions by particular states.

As for this latter category, last week the Fifth Circuit Court of Appeals saved Texas from an arbitrary and capricious EPA rejection of its permitting process for utilities and industrial plants. In that case the court found that "the EPA based its disapproval on demands for language and program features of the EPA's choosing, without basis in the Clean Air Act or its implementing regulations."

See a pattern here? Mitt Romney and House Republicans are making the case that Obama regulators have been punishing U.S. business in violation of the law and beyond what Congress intended. Tuesday's ruling proves their point and underscores how much more damaging the EPA could be without re-election restraint in a second Obama term.

The court's decision states it plainly: "Absent a claim of constitutional authority (and there is none here), executive agencies may exercise only the authority conferred by statute, and agencies may not transgress statutory limits on that authority."

The message is that regulators must follow the laws of the United States. Why do federal judges constantly have to remind EPA Administrator Lisa Jackson of this basic principle?