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EPA Says Texas Lawsuit Will Not Thwart Enforcement of 'Tailoring' Rule

Texas's claim that it doesn't have to comply with the 2011 greenhouse gas rule deadline is unsubstantiated, says agency

Aug 10, 2010

WASHINGTON—The unofficial motto of the Lone Star State might be "Don't Mess With Texas." But do state officials really expect federal authorities to heed such a maxim?

When it comes to the U.S. Environmental Protection Agency (EPA), evidently the answer is yes.

Via lawsuit and letter, Texas has fired off the fiercest opposition yet to the EPA's efforts to deploy what's known as the "tailoring" rule to regulate carbon dioxide from power plants, energy-intensive industries and other stationary sources.

In their six-page letter dated Aug. 2, Texas attorney general Greg Abbott and Texas Commission on Environmental Quality chairman Bryan Shaw came right out and said they are refusing to comply with the January 2011 tailoring rule deadline.

"On behalf of the State of Texas, we write to inform you that Texas has neither the authority nor the intention of interpreting, ignoring or amending its laws in order to compel the permitting of greenhouse gas emissions," they wrote to EPA Administrator Lisa Jackson and Alfredo Armendariz, regional administrator for EPA Region 6 in Dallas.

Tom Smith, longtime executive director of the Texas office of Public Citizen, told SolveClimate News in an interview from his Austin office that the vociferous challenge isn’t all that shocking.

Smith said the leader of the EPA's Air and Radiation Office, Gina McCarthy, understands the difficulties and intricacies of the Clean Air Act and the tailoring rule.

"I think the tailoring rule is fair," he said. "She hoped by coming up with a multistage rule, she could appear reasonable and not break the backs of state agencies and create an impossible regulatory morass. But states like Texas make this impossible."

This week, the EPA labeled Texas's claims as unsubstantiated. An EPA spokeswoman said neither the letter nor the lawsuit will deter the agency from marching forward with its tailoring rule mandate.

"EPA's measured steps are in response to a Supreme Court decision (EPA vs. Massachusetts) issued more than three years ago," spokeswoman Enesta Jones wrote in an e-mail response. "We are not at liberty to ignore the law, and the letter's unsubstantiated claims are the same sort that have been made — and ultimately proven wrong — every time EPA has, over the past 40 years, moved to implement the Clean Air Act's protections of public health and welfare."

Currently, the White House Office of Management and Budget is reviewing a rule that could empower the EPA to enforce federal regulations on greenhouse gases if states choose not to cooperate.

Texas Seeking Friendly Appeals Court

State authorities had until early August to let the EPA know if they would need to rewrite state laws or regulations to meet tailoring rule restrictions.

No doubt, the final tailoring rule released in June has drawn other EPA challengers. For instance, Mississippi and Alabama are among the 17 other states, trade associations, businesses and even environmental organizations that are less than satisfied with its requirements. For example, the Center for Biological Diversity has filed a lawsuit against the EPA, calling on the agency to set a science-based national pollution cap for greenhouse gases under the Clean Air Act.

Bill Becker, executive director of the National Association of Clean Air Agencies was unavailable for comment. However, in an earlier interview with Energy & Environment Publishing, he said other states are making good faith efforts to meet the tailoring rule deadline — even where governors are less than enamored with the EPA's efforts to curb heat-trapping gases via the Clean Air Act.

Texas Gov. Rick Perry called the tailoring rule arbitrary, capricious and "contrary to the Clean Air Act" in the lawsuit filed against the EPA Aug. 2 in the U.S. Court of Appeals for the District of Columbia.

Smith said he didn't know if Texas has standing to file the lawsuit but they likely have a sympathetic appeals court.

"Most importantly, they have a Fifth Circuit Appeals Court that has tended to be pro states' rights, pro industrial polluters and weak on environmental protection," Smith said. "What they are looking to do is create uncertainty. That's essential to getting an issue back before the Supreme Court to challenge the breadth of EPA regulations beyond tailpipes."

 

Interestingly, Smith pointed out, the 1992 Rio de Janeiro United Nations Earth Summit spurred Texas to become one of the first states to authorize its agencies to act on greenhouse gases in a manner consistent with federal law.

"That's why we believe the Texas Commission on Environmental Quality has the authority to comply with the tailoring rule," Smith said. "But it was never acted upon."

That inaction prompted Public Citizen to file an October 2009 lawsuit against the Commission on Environmental Quality that would essentially force the state agency to meet greenhouse gas emissions permitting standards that the EPA is requiring with its tailoring rule. A trial is expected to begin this November, Smith said.

If the Texas commission continues to act like a rogue agency, he said, EPA officials eventually have the right to step in and take over permitting and enforcement functions.

"I don't think there's a provision for fining them or sending out a bad report card to anybody," Smith concluded.

Is This Politics as Usual?

The tailoring rule for large stationary pollution sources is being rolled out Jan. 2, in tandem with a timeline for mobile sources that requires auto manufacturers to meet greenhouse gas emissions standards for cars and light trucks.

Large industries already required to obtain New Source Review permits for other pollutants also will have to include greenhouse gases among those permits if their emissions of those gases grows by a minimum of 75,000 tons of carbon dioxide equivalent annually. Initially, the tailoring rule will require about 550 power plants, landfills and other industrial facilities to obtain permits for emissions.

The idea with an incremental rule was to offer a break to apartment buildings, hospitals, schools and other nonindustrial emitters. An estimated 900 additional polluters will come under regulatory review each year thereafter as smaller emitters are added.

Clearly, however, Texas doesn't want any of it. In their letter, Abbott and Shaw accused the EPA of demanding a loyalty oath.

"Indeed, it is an affront to the congressionally established judicial review process for EPA to force states to pledge allegiance to its rules ... on the final day by which states must exercise their statutory right to challenge those same rules," they wrote.

Cyrus Reed, conservation director with the Lone Star Chapter of the Sierra Club, hypothesizes that Gov. Rick Perry is playing the pro-Texas card during an election year.

The three-term Republican governor (he became governor in 2000 when George W. Bush resigned to become president) is in a less-than-settled contest with Democrat Bill White, the former three-term mayor of Houston.

"In Texas, it's a standard way of operating, to be belligerent toward EPA," Reed said in an interview. "They have been acting like President Obama came in and became an activist, and now the EPA is taking over.

It's good politics to bash EPA by saying it is overstepping its bounds. But the subtext might be more political than real."

See also:

Clean Air Act Proving Effective in CO2 Regulation, Lawyers Tell Their Corporate Clients

Industry Turning to Legal Action to Stop EPA Regulation of Greenhouse Gases

Will Senate Showdown on Clean Air Act Slow Down EPA's Momentum?

Fierce Fight Expected Against Texas Oil's Effort to Derail California Climate Law

GOP Protest Builds Against EPA Regulating Greenhouse Gases

Public Citizen Sues Texas Over Greenhouse Gases 

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