ORANGE — For the second time in roughly six weeks, the State of Texas has filed a lawsuit against the Environmental Protection Agency (EPA) over air pollution regulations.

State Attorney General Greg Abbot said the suit he filed last Tuesday with the U.S. 5th Court of Appeals in New Orleans seeks to block the EPA from disapproving Texas's so-called flexible permits which pertain to refineries and other large industries that bolster the state’s economy.

Gov. Perry issued a statement that applauded General Abbott’s efforts.

“Instead of worrying about cleaner air, the EPA seems intent upon putting the jobs of tens of thousands of hardworking Texans at risk,” says Perry. “The EPA’s overreach is as potentially devastating as it is unnecessary.”

Texas’ Flexible Permits Program was established in 1994 by the Texas commission on Environmental Quality (TCEQ) as in incentive for “grandfathered operations” to voluntarily enter into the State’s air permitting and environmental regulation program. The permit covered 122 refiners, plastics makers, and chemical plants.

These grandfathered facilities pre-dated the State’s permitting program, which did not begin until 1971. As the EPA acknowledges, neither the EPA nor the TCEQ had the authority to require permits for these grandfathered facilities.

Because of the enactment of Texas laws that later imposed mandatory permitting requirements, there are no longer any grandfathered facilities in the State of Texas.

Sixteen years later, the EPA wants Texas to measure up.

Their long wait may present a sizable legal hurdle. Under the Clean Air Act, the EPA is required to challenge Texas’ rules within one year, yet they waited well over a decade to challenge the Flexible Permits Program.

The TCEQ attempted to work with the Obama administration and resolve the new EPA administrator’s objections but the EPA has unilaterally declared that the program is not in compliance with federal law.

“EPA disapproved the flexible permitting program because it is inconsistent with both federal law and the approved air quality permitting program operated by the state of Texas,” Region 6 EPA spokesperson, Joseph Hubbard, said in a statement.

However, TCEQ Chairman Bryan Shaw said the flexible permits complied with the Clean Air Act.

“The Flexible Permitting Program has contributed to improved air quality in Texas, and if the state is prevented from using the program, air quality could actually suffer,” Shaw said in a statement.

Hubbard argued that the TCEQ permits were “flawed”.

“The EPA will continue to work proactively with businesses to provide the regulatory certainty businesses need to invest and prosper, all while clearing the air and protecting the health of our most vulnerable citizens,” Hubbard added.

Big business is now caught in the middle, seemingly baffled by the EPA’s sudden burst of awareness, along with their push for federal regulation.

“When the flex permit program was rolled out in 1994, EPA and environmental groups applauded it, and EPA approval seemed implicit,” said Valero spokesman Bill Day in a statement. “Now, 16 years later, EPA is reversing course, and our facilities are caught in the middle, creating significant uncertainty at a time when our economy can least afford it.”

According to Debra Medina, the unexpectedly strong Governor of Texas candidate and President of “We Texans”, opposing the EPA is also an opportunity for the State “to resist federal tyranny.”

“The Texas legislature and Texas law enforcement must begin to nullify (i.e., pass state law invalidating federal action) and interpose against federal regulators. Let's work with our state legislators to enact legislation banning EPA action in Texas and adopt legislation and policy that insures Texas regulates and protects her own environment--that's not Washington D.C.'s job,” says Medina.

Aside from the 10th Amendment, there seems to be additional merit to that statement. According to Section 101 of the Clean Air Act, air pollution prevention “is the primary responsibility of the States and local governments.” Additionally, Section 110 declares that each state “shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State.”

Medina, like Attorney General Abbott, sees the EPA’s actions as an example of government overreach.

However, The EPA and the federal government argue that the “overreach” may be warranted since, during the 16-year span of the grandfather clause, Texas has persistently lead the nation in air pollution emissions, amount of toxic chemicals released into water, and carbon dioxide emissions, to name a few. If left to their own devices, the EPA worries that Texas will continue to work around national standards for clean air.

After years of avoiding federal regulations on air quality, this legal battle may force Texas to improve its environmental conditions. That is certainly the hope of state-based environmental groups, who have applauded the EPA’s efforts.

“Texans deserve the same clean air protection as citizens of every other state, and TCEQ's flexible permitting program has been denying all of us that right for nearly 20 years,” says Luke Metzger, director of Environment Texas.

When confronted about the State’s claim that following the Clean Air Act could result in job loss, Metzger says that these companies are “largely bluffing” to maximize profit.

“Every time there’s any kind of environmental program imposed, you always hear the ‘gloom and doom’ talk from big businesses. Years ago, the auto industry cried out against seat-belts saying that they would ruin the auto industry. Most of these claims are just baseless,” says Metzger.

“We’re not asking for much... The Clean Air Act is the same law that polluters in all other 49 states have to follow, and it's time that polluters in Texas follow it, too.”

If this legal battle is won by the EPA, the State of Texas will likely be forced to do just that. If the lawsuit pans out in favor of the State, it may put an end to a long-time environmental conflict to rest once and for all.