Reviving the 10th: States watch Texas air quality case

The 10th Amendment -- which reserves to the states and the people powers not delegated to the federal government by the Constitution -- too often is viewed as a vestigial tail on the Bill of Rights, an atrophied anachronism in the age of sweeping federal activism.

But a 10th Amendment showdown is about to take place in Texas.

After years of wrangling with the state, the EPA earlier this month sent a letter telling Texas it is taking over the regulation of greenhouse gas emissions from refineries, power plants and cement manufacturers.

The state has been fighting the takeover in court, including filing litigation in the 5th U.S. Circuit Court of Appeals. Texas Gov. Rick Perry said the EPA's wresting of regulatory control from the Texas Commission on Environmental Quality could cost jobs and raise the price of energy.

The legal battle is both a states' rights issue and a matter of interpretation of the law as written.

Texas Attorney General Greg Abbott argues the EPA is flagrantly ignoring the law in several different ways. He points out Texas submitted its own air pollution rules to the EPA in 1994, and the agency had 18 months to act. It did not reject the Texas rules until July 14, 2010 -- three presidential administrations later.

In addition, Section 101 of the Clean Air Act states air pollution prevention "is the primary responsibility of the States and local governments." Section 110 provides each "State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State."

Besides, Texas is already doing a better job of reducing emissions than the EPA. The Texas clean air program achieved a 22 percent reduction in ozone and a 46 percent reduction in nitrogen oxides, while the nation saw an 8 percent ozone decline and a 27 percent reduction in nitrogen oxides.

"The EPA's misguided plan paints a huge target on the backs of Texas agriculture and energy producers by implementing unnecessary, burdensome mandates on our state's energy sector, threatening hundreds of thousands of Texas jobs and imposing increased living costs on Texas families," the governor's office said.

Actually, because Texas is such a large energy producer, this EPA regulatory strong-arming could affect jobs and prices all across the country and the world.

A 10th Amendment victory on this issue could have implications for ObamaCare, educational mandates, wilderness takeovers (see below), vehicle mileage standards, immigration laws and much, much more.