The smackdown between the state of Texas and the U.S. Environmental Protection Agency over greenhouse gas emissions has heated up again, with EPA now running Texas’ permitting program while the state fights the plan in court.
The U.S. Court of Appeals for the Fifth Circuit declined Wednesday (Dec. 29) to issue a stay that would have delayed the EPA's plan as the suit moves forward. On Thursday, EPA published in the Federal Register details of its proposed permit rules for Texas, which took effect Sunday (Jan. 2).
Texas answered that with a fresh petition to block the regulations in the U.S. Court of Appeals for the District of Columbia, which generally has authority over federal agencies. The petition argues that EPA's creation of the new rules is an "improper overreach" that violates the federal Clean Air Act.
For now, however, EPA holds the upper hand in the long-running dispute, which focuses on whether Texas should be allowed to develop and administer its own system for regulating industrial pollution under the Clean Air Act. EPA says Texas’ 16-year-old “flexible permitting” program is too lenient.
Federal rules require new controls for reducing emissions from power plants, oil refineries and other large industrial facilities. Such rules would have a major impact on Texas, which produces more carbon dioxide emissions than any other state.
Texas has refused to comply with the new rules, and EPA took the unprecedented step Dec. 23 of announcing that it would directly issue Clean Air Act permits for greenhouse gas (GHG) emissions “on the state's behalf” starting in January 2011.
EPA’s Federal Implementation Plan (FIP) allows the agency to issue Prevention of Significant Deterioration permits in Texas to GHG sources until Texas comes up with a plan for GHG permitting that has EPA’s approval.
“EPA’s actions are necessary because Texas officials have made it clear in multiple recent statements that TCEQ [Texas Commission on Environmental Quality] believes its current SIP [State Implementation Plan], as approved, does not authorize the state to regulate GHGs,” EPA announced on its site.
“Furthermore, Texas officials’ recent statements also make clear that the state agencies have no intention of properly implementing the portion of the federal air permitting program that will cover GHG emissions.”
Federal takeover of the process “assures that businesses in Texas are not subject to delays or potential legal challenges and are able to move forward with planned construction and expansion projects that will create jobs and otherwise benefit the state’s and the nation’s economy,” EPA said in a statement.
‘Abusing its Powers’
Texas immediately sought a review and stay of that plan, arguing that EPA had overstepped its authority.
“Congress has stated that ‘the law must provide that the governors shall be governed and the regulators shall be regulated, if our present form of government is to endure.’ EPA violates this precept, abusing its powers in an attempt to evade citizen participation in the regulatory process,” the state wrote in its Petition for Review.
“The Agency relies on its emergency administrative powers to coerce a result that Congress never intended and that the Agency has been unable to achieve through the appropriate regulatory process.”
More than a dozen states, including Texas, are challenging the EPA’s newest greenhouse gas emissions rules. But Texas alone is refusing to comply with the rules while the case goes forward.
"Emissions are too high, the emissions are too toxic, and Texas water is being harmed," EPA regional director Al Armendariz told the Associated Press.
In another interview, Armendariz said the state seemed “very willing to create a construction stoppage… . And so, the federal government is stepping in so businesses in Texas will not be at a disadvantage compared to the other 49.”
About 200 Texas facilities continue to operate with air and water permits that are either out of date or have been disapproved by the EPA. The agency believes they are releasing a variety of metals and chemicals into the air and water that would, under the new regulations, no longer be permitted.
Some industries in Texas have chosen to deal directly with the EPA, which says it's working with about two-thirds of the largest facilities to get them new flexible permits.
‘Putting Politics Ahead of the Environment’
The EPA is "putting politics ahead of the environmental issues," said Bryan Shaw, chairman of the Texas Commission on Environmental Quality.
A spokeswoman for Texas Gov. Rick Perry said he was disappointed with the court's ruling but confident that the state would prevail "in the end."