Push seems to be turning into shove in the standoff between Texas and the Obama administration over federal controls for climate-changing air pollutants.
As expected, the U.S. Environmental Protection Agency said this week that it plans to enforce new federal regulations to reduce industrial emissions of greenhouse gases in Texas. State officials have said flatly that they will not include carbon dioxide and other heat-trapping gases in a broader, federally-delegated program through which the state issues air pollution permits to industrial plants.
Texas stands alone among the states in refusing to be involved in implementing the new greenhouse rules, which are scheduled to start taking effect on Jan. 2. Earlier this month, a federal appeals court turned down requests from Texas and other litigants to block the regulations until legal challenges are decided.
Formal EPA action to assume control over the climate-related part of the federally-authorized state permit program will happen “on or about” Thursday, Dec. 23, the federal agency told the Texas Commission on Environmental Quality, the state’s chief pollution-regulating agency, in a letter dated Tuesday. The EPA only rarely takes such a step.
Under the new EPA rules, air permits required when large industrial plants are constructed or undergo major changes must include limits on greenhouse gases with other, previously regulated pollutants. The greenhouse regulations will apply to large facilities including power plants and oil refineries. Texas officials estimate that about 167 projects in the state will be affected in 2011.
Gina McCarthy, the EPA’s assistant administrator for air and radiation, wrote to TCEQ Chairman Bryan W. Shaw in a letter first reported by the Greenwire news service:
The unwillingness of Texas state officials to implement this [greenhouse-gas] portion of the federal program leaves EPA no choice but to resume its role as the permitting authority, in order to assure 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 nation’s economy. To effectuate this promptly, so that there will be no period of time when [pollution] sources are unable to obtain necessary [Prevention of Significant Deterioration] permits, EPA intends to promulgate a partial disapproval of Texas’ PSD program and a Federal Implementation Plan, to take effect by January 2, 2011.
Although EPA will be the greenhouse gas permitting authority [in Texas] on January 2, 2011, I want to emphasize that EPA would prefer that TCEQ act as the permitting authority for greenhouse gas-emitting sources in Texas, as it does for all other sources. I would be pleased to discuss with you steps that TCEQ could take to address the inadequacy in its PSD program and take over the greenhouse gas permitting function, as soon as possible after January 2, 2011, either through a revision to the [state’s PSD implementation plan] that EPA could approve expeditiously or through a delegation agreement.
That passage in McCarthy’s letter – especially the phrase “resume its role as the permitting authority” – was clearly an effort to portray the EPA as reluctantly taking back authority that it had conditionally granted to Texas in the first place under a federal law, the Clean Air Act (as it does to other states).
Gov. Rick Perry, by contrast, has led Texas officials’ resistance to the EPA’s initiative to regulate greenhouse gases – along with opposition to separate EPA actions seeking changes in other parts of the state’s air permit program – with very different language, calling the federal moves a “power grab.”
Echoing Perry’s theme – which is expected to be a key element in a campaign for the Republican presidential nomination, should the governor wage one – the TCEQ issued this statement on Wednesday in response to McCarthy’s letter:
This is an arrogant act by an overreaching EPA that is trying to implement new, unnecessary controls on American industry that will have no positive environmental effect, but will drive up prices paid by consumers for energy and for almost all goods and services they purchase. Regulating CO2 under the Clean Air Act will also cost jobs, both by negatively affecting industry and by driving jobs out of the country.
The State of Texas has an active court case trying to prevent the EPA from enforcing rules against CO2. But instead of abiding by its own pronouncements to establish a reasonable deadline for a [State Implementation Plan] revision, EPA is now taking immediate control of a portion of the state’s air permitting program under the guise of protecting Texas’ businesses.
Greenwire reported on Monday that Texas was making a “last-ditch” attempt to block the January implementation of the greenhouse regulations, despite the refusal of a Washington-based appeals court a week earlier to grant such a stay:
U.S. EPA’s new rules for power plants, refineries and other large industrial facilities will “deprive Texas of its right to manage its air resources,” the state says in a petition filed last week with the 5th U.S. Circuit Court of Appeals. The plea to the New Orleans-based court, which has jurisdiction over Texas but doesn’t usually review challenges to Clean Air Act programs, is the state’s last-ditch effort to stop the regulations from taking effect in two weeks.
A number of states are joining business organizations and others in suing to overturn the climate rules, but all states except Texas have taken some actions to ensure the regulations’ implementation.
A group representing state and local air officials, the National Association of Clean Air Agencies, said in October that 14 states lacked authority in their state clean air plans to include greenhouse gases in permits. Texas was the only one of the 13 that did not tell the EPA it would quickly amend state rules to cover those gases or “accept” the EPA’s issuance of such permits until that can happen, the organization reported.
Meanwhile, congressional opponents of the EPA rules are gearing up for another attempt to stop them with statutory action. Republican leaders in the House – which that party will control starting in January – have vowed to take aim at the regulations.
– Bill Dawson