EPA Region 6 Throws Bombs to the Bitter End

The Environmental Protection Agency executes its authorizing statutes through 10 regional offices. To be sure, the regional offices must dance to the tune set by headquarters in D.C. Nonetheless, there is discretion at the margin for all regional offices, as is the case for outposts in any massive bureaucratic apparatus. And of the 10 offices, by far the most aggressive during the Obama administration has been Region 6, which operates out of Dallas and covers Texas, Oklahoma, New Mexico, Louisiana, and Arkansas.

Among the lowlights:

In sum, EPA Region 6 was the league leader in offensive behavior. Today, Region 6 issued its final slap in the face. In this morning’s Federal Register, Region 6 proposed to rescind its earlier federal takeover of Texas’s visibility program, which would have cost $2 billion; in its stead, the agency proposed a new federal takeover that costs even more, according to Texas Attorney General Ken Paxton. That is, the new takeover is worse than the old takeover.

To understand how absurd this action is, you must appreciate the legal context of the original federal takeover. The state of Texas and also the regulated power plants took EPA to court over the first federal plan, and, last July, these challengers won an order in the U.S. Court of Appeals for the Fifth Circuit that prevents EPA from enforcing the rule. One of the criteria that a federal court evaluates when it considers such an order is the likelihood of success of the challengers. By granting the order, the court was sending a strong signal that the EPA was going to lose. In the face of the adverse result, EPA Region 6 doubled down. In December, the agency asked the Fifth Circuit to remand the rule to the agency for a second look. Today’s proposal constitutes the results of this voluntary review.

To be clear, there isn’t a snowball’s chance in hell that this proposal would become final. It would be illegal (and likely physically impossible) for the agency to take comment on the proposal and publish a final in the Federal Register in the next two weeks before President Obama leaves office. Incoming President-elect Trump can simply discontinue work on the proposal, ask for a voluntary remand from the court, and then accept Texas’s original plan. So I’m not concerned about the viability of this proposal. But I am impressed—in a bad way—by Region 6’s bomb-throwing to the bitter end.