Courts Wrestle with Texas Revolt Against EPA’s New Greenhouse Gas Rules

Every other state has complied with the tailoring rule that kicked in Jan. 2, even if officials have filed lawsuits challenging the EPA

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WASHINGTON—It took a somewhat fancy legal two-step, but Texas has managed to become the sole state to dance around this week’s long-anticipated start-up of the Obama administration’s modest efforts to curb heat-trapping gases.

That makes the Lone Star State the only place nationwide where factories and electricity-generating plants that emit a lot of greenhouse gases can’t apply for the necessary permits to make modifications or begin new construction. Now it’s up to federal judges to figure out how long this peculiar arrangement lasts.

Decision-makers with the U.S. Environmental Protection Agency had tried to avoid this anticipated stoppage two days before Christmas by declaring that they would skirt defiant Texas authorities by overseeing emissions permits themselves. But the U.S. Circuit Court of Appeals for the District of Columbia put the kibosh on the move, temporarily blocking it late last week.

Texas is seeking a permanent blockage of the threatened federal takeover. The appeals court has ordered the EPA to reply to Texas’s Dec. 30 petition by Thursday morning. But the judges made it clear in their one-page order that the temporary reprieve issued last Thursday “should not be construed in any way as a ruling on the merits” of Texas’s lawsuit.

EPA officials are expecting judges to reach a decision late this week or early next week.

“This is a procedural step that allows EPA more time to prepare our response to Texas’s request for a stay,” Dallas-based agency spokesman Joe Hubbard told Solve Climate News in a post-interview e-mail. “It’s unfortunate that Texas politicians continue to fight EPA’s efforts to ensure that Clean Air Act permits in Texas can be applied for and issued in a timely way. Two separate courts have declined to stay EPA’s actions and we’re confident we’re on sound legal footing.”

Hubbard was referring to a pair of other federal court rulings in December that denied Texas’s requests to delay activating the “tailoring rule.”

Other Protesters Complying

In the meantime, every other state—even those where authorities have also filed lawsuits against the EPA—has complied with the tailoring rule that kicked in Jan. 2. The EPA has granted some states extensions to revamp or tweak their permitting structure.

Gina McCarthy, head of the EPA’s Air and Radiation Office, released the final tailoring rule in June. It was the first step the agency took to rein in carbon dioxide and other pollutants emitted by large stationary sources. It was an incremental rule designed to keep apartment buildings, hospitals, schools and other nonindustrial emitters out of immediate regulatory reach.

State authorities had until early August to let the EPA know if they would need to rewrite state laws or regulations to meet the new restrictions. In a letter dated Aug. 2, Texas attorney general Greg Abbott and Texas Commission on Environmental Quality chairman Bryan Shaw announced that they had no intention of meeting the tailoring rule deadline.

Ilan Levin, a senior attorney with the Environmental Integrity Project, referred to the tailoring rule as a slow, methodical start to controlling greenhouse gases that shouldn’t present a burden to any state.

By intervening late last week, he said, the federal court of appeals merely hit the pause button.

“Texas is unique and has taken the most aggressive and creative positions to thwart the EPA by saying the EPA is swooping in illegally,” Levin said in an interview from his office in Austin, Texas. “It is making the legal argument that nothing can happen until December of 2011, if at all.”

EPA “Arbitrary and Capricious”

Texas has bristled at the tailoring rule since Day One.

In its latest salvo, state officials labeled EPA’s Dec. 23 announcement that it would take over Texas’s Clean Air Act permitting process as arbitrary, capricious and contrary to law. Such short notice, they say, is unfair because the Clean Air Act grants states a year to adapt before the federal government intervenes.

“(It) is particularly pernicious because it unlawfully attempts to partially disapprove Texas’ environmental laws in the face of the State’s admirable track record of reducing pollution and improving air quality in the State,” Gov. Rick Perry, Abbott and others stated in the latest lawsuit. “This regulation accomplishes no discernable environmental benefit. The amount of greenhouse gas emissions that would be avoided under this regulation is miniscule (sic); indeed, it is impossible even to measure.”

Perry is the longest-serving governor in Texas history. The Republican, who became governor in 2000 when George W. Bush resigned to become president, beat Democrat Bill White, the former three-term mayor of Houston, in last November’s election.

Interestingly, the Texas Commission on Environmental Quality, the state’s regulatory agency, approved a $2.2 billion coal-fired power plant less than a week before the tailoring rule went into effect.

Summit Power Group Inc. plans to build the plant in West Texas beginning in 2011. By incorporating integrated gasification combined cycle technology, company officials say they can capture 90 percent of the carbon dioxide emissions, which will be pumped underground to recover oil in nearby fields.

Company chairman Donald Hodel touted it as “overall the cleanest coal-fueled power project ever permitted in Texas” in a Fort Worth Star-Telegram article.

Will Delay Cause Permit Backup?

Utilities in Kansas and other states hurried along permits late last year to avoid new requirements of the tailoring rule, so most states aren’t processing any permits now.

“Given … that we’re operating completely within the law Congress passed to address air pollution, we do not expect this to lead to any permitting delays” in Texas, said Hubbard, the EPA spokesman.

He added that the agency has not yet received a permit application, nor does the Texas Commission on Environmental Quality have any permit requests in the hopper.

The court has given Texas authorities until Friday afternoon to respond to whatever documents EPA officials file to meet their Thursday morning deadline.

Levin, the attorney, said he couldn’t begin to forecast the outcome of this legal tussle. Whatever the court’s decision, however, he predicts that Texas will try to persist with its sidestepping strategy.

“I think it’s clear the state of Texas is banking on waiting out this administration,” Levin said. “They’re counting on dragging this out and running out the clock.”