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:
- Obama’s first pick for EPA Region 6 administrator Al Armendariz comparing his enforcement style to a “crucifixion.”
- Armendariz conducting ex parte meetings with former colleagues at WildEarth Guardians while Region 6 was being sued by WildEarth Guardians, a lawsuit that led to a “sue and settle” consent decree.
- In December 2010, EPA Region 6 issued an “imminent and substantial endangerment order” against Texas natural gas producer Range Resources, Corp., which accused the company of contaminating the water in Parker County. In March 2012, after more than a year of administrative and judicial adjudication, EPA headquarters pulled the plug on the enforcement action. That is, Region 6 overreached and was checked by higher ups.
- Performing takeovers of visibility improvement programs in Texas, Oklahoma, New Mexico, and Arkansas, at a cost of almost $6 billion, in order to achieve visibility “benefits” that are imperceptible to the human eye.
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.