Texas Flag

Every state but Texas is “poised to ensure” that industrial plant construction can proceed next year with required permits including new federal limits on climate-changing greenhouse gases, the National Association of Clean Air Agencies (NACAA) said Thursday. The group, which represents state and local air officials, issued a report summarizing state efforts.

Under the federal Clean Air Act’s Prevention of Significant Deterioration program (PSD), permits with pollution limits are required before major industrial plants can be constructed or before existing plants undergo major modifications.

Texas officials have firmly declared that they have “neither the authority nor the intention” to include limits on greenhouse gases in the PSD permits that they issue under authority delegated by the U.S. Environmental Protection Agency. New EPA rules setting those limits will be phased in, starting on Jan. 2.

Along with Texas, officials in some other states are also trying to stop the greenhouse rules in court or are otherwise objecting to them. But it appears increasingly likely that industrial projects covered by the regulations may be held up only in this state.

NACAA works to enhance cooperation among state, local and federal officials on air quality issues. The organization said [pdf] in its new report that “every state but one is poised to ensure that sources [of greenhouse emissions] can obtain pre-construction permits under the Clean Air Act come Jan. 2, 2011.”

The association said most states already had authority in their state clean air plans to cover greenhouse gases in PSD permits when the EPA adopted regulations this year to require that.

The EPA concluded, however, that 13 states, including Texas, apparently needed to revise their plans to include limits on the heat-trapping gases. That number rose to 14 when Wyoming informed the EPA that it also lacked such authority under its laws.

With the exception of Texas, all of those states have told the EPA “that they will either revise their PSD rules by Jan. 2, 2011 or very shortly thereafter, or accept a [federal plan] that will give EPA authority to issue the [greenhouse gas] portion of PSD permits until state rules are revised,” the NACAA report said. “This provides that  [industrial pollution] sources required to apply PSD controls to their [greenhouse gas] emissions will be able to obtain the necessary permits and avoid construction delays.”

The Clean Air Act allows a federal clean air plan to be  implemented in a state – something that happens only rarely – when a state does not submit a state plan to the EPA for approval or does not implement one that the federal agency has approved.

In the case of the new climate rules, the EPA said it recognized that some states might not be able to modify their plans in time to receive federal approval and therefore would not be ready to issue permits with the greenhouse-gas limits by Jan. 2.

As a “stop-gap measure,” it laid out a blueprint for a federal plan covering greenhouse gases that could be temporarily implemented in those states – with the actual permit-issuing authority delegated to states that wanted it. The aim, the EPA said, is to “reduce uncertainty and thus facilitate businesses’ planning” for industrial construction. Otherwise, the federal agency added, companies “confront the risk that they may have to put on hold their plans to construct or modify [plants], a risk that may have adverse consequences for the economy.”

NACAA said seven of the 14 states told the EPA that they expected to revise their rules by Jan. 2, or soon afterward, in order to to issue permits with greenhouse-gas limits. Six other states said they would “accept” the federal plan to do that, the organization said. The 14th state – Texas – “declined to change its rules or accept” the federal plan. [For details on Texas’ explanation of its position, see this earlier TCN Journal article: Texas stays on course toward clash with feds over greenhouse-gas rules.]

Larry Soward – who served from 2003-09 as one of the three commissioners overseeing the Texas Commission on Environmental Quality, the state agency that issues air permits – told Texas Climate News he expects the EPA to issue a formal call for Texas to revise its state plan as “one last chance to comply” and implement the greenhouse-gas rules.

If Texas does not comply then, the EPA will issue a federal plan, Soward predicted. “That means the feds have taken over the program and sanctions could be issued against Texas.”

Under the Clean Air Act, such sanctions can include cutting off federal highway funds and introducing stricter pollution limits for industrial expansion.

Bill Becker, executive director of the Washington-based NACAA, told TCN that in “friendly” situations – those in which a state is cooperating with the EPA in introducing the temporary federal plan for permits with greenhouse-gas limits – that plan will take effect “immediately.”

An “unfriendly” introduction of a federal plan, however, “will take far more time,” he said.

Andy Saenz, a spokesman for the TCEQ, said “the legal and practical implications of Texas not acquiescing to EPA’s request for an expedited [federal plan] are that EPA will have to follow the timelines prescribed in the Clean Air Act regarding [the federal plan] process.”

Texas – as well as Alabama, North and South Dakota, Nebraska and Mississippi – have asked the courts to postpone implementation of the EPA’s greenhouse-gas rule, he added.

“Texas maintains that EPA’s attempt to use the Clean Air Act to require the permitting of [greenhouse gases] is illegal, therefore a permit does not need to include [them] to be adequate for construction purposes,” Saenz said.

EPA officials did not immediately respond to questions emailed by Texas Climate News.

In addition to Texas, the 13 states (or parts of states) that were included in the NACAA report were Alaska, Arizona (Pinal County), Arkansas, California (Sacramento), Connecticut, Florida, Idaho, Kansas, Kentucky, Nebraska, Nevada (Clark County), Oregon and Wyoming.

Texas’ standoff with the Obama administration over the climate rules is just one part of a larger battle over regulation of industrial air pollution. Besides opposing the EPA’s initiative to reduce greenhouse gases, Texas is also battling the federal agency over its rejection of key parts of the state’s permit program for other pollutants from major plants.

– Bill Dawson

Image credit: © Wallace Price, iStockphoto.com