Forecast Is Hazy For EPA's Regional Haze Oversight Authority

Earlier this month, the 5^th Circuit Court of Appeals stayed EPA's disapproval of the Texas and Oklahoma regional haze state implementation plans, as well as EPA's promulgation of its own federal implementation plan. The opinion is a thorough rejection of EPA's decision. Although this was only a stay order, I would rate EPA's likelihood of ultimately prevailing on the merits as approximately zero. There are a number of significant take-aways from the decision:

• EPA's assessment of regional haze SIPs is not generally of "nationwide scope or effect" and therefore will be subject to review in the court of appeals responsible for the state at issue, rather than in the D.C. Circuit.