Texas Strikes Out - Court Rejects State's Third Swing at Carbon Controls

The federal Court of Appeals in Washington today rejected Texas' latest attempt to block the first carbon pollution control requirements under the Clean Air Act, which took effect last week.  The court rejected Texas’ third try for a “stay” of the steps EPA is taking to assure that big new or expanded power plants and industrial facilities will install available and affordable pollution controls to reduce their carbon pollution.

Texas is the only state in the nation that refused to let anyone – the state or the feds – issue permits for carbon dioxide, the main cause of global warming.  Ironically, that left Texas the only state where companies could not legally start construction on new power plants or other big projects.

The court’s ruling now assures that EPA will be able to fill that void for as long as Texas’ leaders continue their grandstanding, so that companies can continue building their projects, but with reasonable limits on all of their dangerous pollutants.

As I said in a letter today in the Wall Street Journal, far from torpedoing new construction, EPA is throwing Texas a life preserver.

This is actually the fourth time Texas has stepped up to the plate and fanned.  The State filed two stay requests before the D.C. Circuit last fall, and in December the court ruled:

Petitioners have not satisfied the stringent standards required for a stay pending court review. … Specifically, with regard to each of the challenged rules, petitioners have not shown that the harms they allege are certain, rather than speculative, or that the alleged harms will directly result from the actions which the movants seek to enjoin.

Texas tried again in the Fifth Circuit Court of Appeals in New Orleans, and that court ruled:  “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.”

Texas tried yet once more back in Washington, but today that court ruled again:  “Petitioners have not satisfied the stringent standards required for a stay pending court review.”  (The order is reprinted below.) 

Chief Justice John Roberts famously said at his confirmation hearing that “Judges are like umpires.”   Texas has now struck out.

They say the definition of insanity is to try the same thing over and over expecting a different result.   

Maybe it’s too much to ask, but perhaps now the State’s leaders will focus on protecting both Texas companies, who need a way to get valid permits, and Texas citizens, who need safeguards from unchecked pollution.


                                         UNITED STATES COURT OF APPEALS

                                     FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 10-1425                                                                                 September Term 2010

                                                                                             Filed On: January 12, 2011

State of Texas, et al.,



Environmental Protection Agency,


                                BEFORE: Ginsburg, Rogers, and Griffith, Circuit Judges

                                                               O R D E R

Upon consideration of the emergency motion for stay, the responses thereto, and the reply; and the motion for leave to participate as amici curiae and to file a response to emergency motion for stay and the lodged response, the opposition thereto, and the notice of consent to motion, it is

ORDERED that the motion for leave to participate as amici curiae be granted. It is

FURTHER ORDERED that amici’s motion for leave to file a response be denied.  Neither the Federal nor the D.C. Circuit Rules provide for amici to file or respond to motions.  Cf. United States v. Michigan, 940 F.2d 143, 164-66 (6th Cir. 1991) (observing that courts have recognized the "very limited" adversarial role of amici curiae, but have "consistently precluded" amici from filing pleadings). It is

FURTHER ORDERED, on the court’s own motion, that the administrative stay entered on December 30, 2010, be dissolved. It is

FURTHER ORDERED that the motion for stay be denied.  Petitioners have not satisfied the stringent standards required for a stay pending court review. See Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); D.C. Circuit Handbook of Practice and Internal Procedures 32 (2010).

                                                              Per Curiam