Public Citizen opened up a new front today in a battle to toughen the way Texas regulators administer the Clean Air Act, this time trying to force them to regulate greenhouse gases.
Texas was already under fire from the EPA, which last month threatened to yank approval for several key aspects of the state's clean-air permitting programs for failing to meet standards of the federal Clean Air Act.
Now, the public advocacy group Public Citizen has filed a lawsuit arguing that the Texas Commission on Environmental Quality (TCEQ) is required by state law to consider climate change when approving new coal-fired power plants – and that it is refusing to do so. The lawsuit asks the Travis County District Court to declare that interpretive rules the commission uses to avoid regulating CO2 emissions are unlawful.
"Under the plain language of the Texas Clean Air Act, CO2 is both an air contaminant and an air pollutant. The Act requires TCEQ to regulate CO2, and to allow adversely affected persons to challenge such emissions from proposed power plants," the lawsuit states.
Here's what the Texas Clean Air Act says:
The role of the act, and TCEQ's job, is to "safeguard the state's air resources from pollution by controlling or abating air pollution and emissions of air contaminants, consistent with the protection of public health, general welfare, and physical property."
"'Air contaminant' means particulate matter, radioactive material, dust, fumes, gas, mist, smoke, vapor, or odor, including any combination of those items, produced by processes other than natural."
"'Air pollution' means the presence in the atmosphere of one or more air contaminants or combination of air contaminants in such concentration and of such duration that: (A) are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation, or property; or (B) interfere with the normal use or enjoyment of animal life, vegetation, or property."
Public Citizen interprets that to mean greenhouse gases. The group points to the EPA's proposed finding that greenhouse gas emissions endanger the public health and welfare, which could now be finalized at any time, and to the landmark 2007 Supreme Court ruling in Massachusetts vs. EPA that found if the government determined greenhouse gases to be a danger, it must regulate them.
"The time has come for TCEQ to take its head out of the sand and begin the process to regulate CO2 emissions from Texas sources. Because the agency will not do so on its own, we are seeking to have a Texas court order it to do so," said Public Citizen Texas Director Tom "Smitty" Smith.
And that timing is important. Eleven coal-fired power plants have applied for permits in Texas in the past four years, and six of those permits have already been approved, Smith said. If all 11 are built, he said, they would pump an additional 77 million tons of CO2 into the atmosphere – on top of more than 625 million tons Texas produces now to lead the nation in greenhouse gas emissions.
Smith's arguments face a tough a sell in Texas government, though. Gov. Rick Perry declared two weeks ago that federal climate legislation would mean "economic disaster" for his state.
The chairman of TCEQ, Brian Shaw, repeated Perry's argument today in a statement responding to the lawsuit, and he went a step farther:
"The science on global warming is far from settled. Neither Congress nor the EPA have been able to promulgate final rules on greenhouse gas regulation. What is certain is that if done incorrectly, CO2 regulations will impose great costs on Texas, without any guarantee of a measurable environmental benefit. Reducing CO2 in Texas will do nothing to lower CO2 globally, but will have the effect of sending U.S. jobs to China and India."
The EPA's Beef With Texas
According to the EPA, Texas has been loosening its Clean Air Act requirements since its program was approved by the federal government in 1992. Last month, the federal agency filed notice that it planned to disapprove some of those changes.
One problem the agency has is with the state's flexible permit system, which lets power plants, refineries, and industrial plants exceed their emission limits in certain areas as long as they stay within overall limits. The EPA's notice says the Texas wording could allow companies that are attempting to build major emissions sources circumvent New Source Review rules designed to protect air quality.
EPA also took issue with the state's major and minor New Source Review implementation plan for similar reasons, and it disputes the way the state defines Best Available Control Technology in its rules governing modification of existing qualified facilities.
Final rulings on the three programs aren't expected for several months. However, the EPA is expected to issue a final decision next month on the state's rules on public participation. Last fall, it proposed that Texas provided inadequate opportunities for the public to review permit decisions.
"Texas' air permitting program should be transparent and understandable to the communities we serve, protective of air quality, and establish clear and consistent requirements," acting Region 6 Administrator Lawrence Starfield said. "
"These notices make clear our view that significant changes are necessary for compliance with the Clean Air Act."
Letting the Public Say Its Piece
Public Citizen is also critical of a lack of public input in the permitting process. In the lawsuit, it argues that Texas law entitles the public to offer evidence, but that TCEQ rules have blocked people from testifying about climate change and CO2 emissions.
The group's members are worried about their land and livelihoods as the climate changes, and they need to be heard, the lawsuit says. For example, one member is a pecan farmer near Bay City who would be unable to use the Colorado River to irrigate crops if sea levels rose and saltwater intruded further up the river. Another is a rancher who has noticed species disappearing and ponds that used to freeze staying ice-free all winter. Gulf Coast residents also worry about more intense hurricanes.
"Public Citizen recognizes that reasonable people can and do differ on what would be proper regulation concerning CO2, and that the Texas Legislature gave TCEQ responsibilities initially to propose regulations and evaluate comments thereon," Public Citizen writes in the lawsuit.
"However, given the immense evidence of harm caused by CO2 emissions, and the resulting global warming and climate change, TCEQ's regulatory policy, that 'anything goes' for CO2, cannot be lawful."