Corpus Christi industry

Industry near proposed Las Brisas site

Texas’ top environmental official can’t be accused of waffling in his dislike for the new federal regulations to limit climate-altering greenhouse gases that will go into effect on Jan. 2.

In his most recent public opposition to the rules, Chairman Bryan W. Shaw of the Texas Commission on Environmental Quality repeatedly urged two state administrative law judges to deliver their recommendation on a hotly contested air permit as soon as they can, so the TCEQ might have enough time to grant it by Jan. 1.

Lawyers for the proposed Las Brisas Energy Center, a power plant at Corpus Christi, had previously filed a legal document claiming that the facility’s owner could sustain a major financial hit if it doesn’t get a state permit by Jan. 2. The reason, they said, is that federal officials plan on that day to start requiring states to consider carbon dioxide and other greenhouse gases in the air pollution permits they issue.

Shaw made his remarks about the Las Brisas permit process in a TCEQ meeting on Oct. 15 that served as a prelude to the judges’ four-day hearing on the permit issue last week.

Before revealing his desire to beat the clock on the federal regulations in the Las Brisas case, Shaw has been waging an escalating attack on the rules. First, he questioned the body of scientific findings underlying the rules. Then, he joined Attorney General Greg Abbott in the state’s legal challenges to stop them. Then, he and Abbott jointly declared that Texas will refuse to help implement the regulations if they take effect on schedule.

On the most basic level, the protracted fight over the Las Brisas permit involves a fierce local debate over a proposed plant that would make electricity by burning petroleum coke, a coal-like refinery byproduct. Las Brisas is a project of Houston-based Chase Power Development. Supporters of the plant, including business and labor leaders, stress economic benefits. Opponents, including local physicians’ organizations, cite public health concerns.

The issue has much broader implications, as well: A coalition of more 30 Texas cities, along with several state environmental groups, are opposing the plant as a potential threat to air quality in other parts of the state and as a contributor to global climate change. In this latter context, particularly, the battle is being watched as part of a larger struggle over the future role of coal (and the similar petroleum coke) in the production of electricity, both in Texas and across the country.

After an initial hearing on the Las Brisas application last year, the two state judges recommended that the TCEQ commissioners deny the requested permit or return it to the agency staff for revision. The commissioners chose another approach – they asked the judges to convene another hearing to receive additional evidence on certain subjects.

The second hearing was first set for the second week of September, but the judges rescheduled it for Oct. 18-21 after an expert witness for the Environmental Defense Fund, a permit opponent, was injured in a traffic accident.

Lawyers for Las Brisas asked that the hearing be held sooner, but the judges turned them down, saying the “predicament” was the company’s own doing “because it failed to prove its application met all applicable rules and regulations during the first hearing.”

In the rejected appeal for quicker action, the Las Brisas attorneys identified as a key concern the impending federal rules that will limit greenhouse emissions from some major industrial plants in permits when the facilities are new or significantly modified. In the document, they noted that the Environmental Protection Agency may take over such permit decisions in Texas, given the state’s stated unwillingness to do so:

While no one can anticipate if or how these rules will be implemented and what effect they might have on applications still in the permitting process, at risk is a complete overhaul of the existing air quality permitting process that could delay by years any applications for [air] permits not granted before the EPA’s Tailoring Rule [for greenhouse gases] becomes effective, including the application at issue. The Las Brisas Energy Center is a three-year effort that could suffer significant financial and procedural harm if its air quality permit is not considered by the Commission before January 2, 2011.

That give-and-take over when the second hearing would occur set the stage for the Oct. 15 TCEQ meeting where commissioners asked the judges for a “status update” on the proceeding and Shaw made clear that he wants a rapid recommendation from the judges.

Three environmental groups fighting the Las Brisas proposal issued a statement objecting to any “fast-tracking” of the permit at what they said was this “unusual” TCEQ session – an obvious allusion to the 2007 battle over permits for two contested coal plants in Central Texas. Gov. Rick Perry, who appointed all the current TCEQ commissioners, ordered “fast-track” consideration of those earlier permits, but the directive was ruled illegal by a district court.

Shaw did not explicitly mention the federal climate rules during the “status update,” but he left no doubt that they were on his mind in his conversation with the two judges, a video of which can be viewed here.

One of the judges, Craig Bennett, said he and his colleague on the Las Brisas case have turned over other cases to other judges and will work only on Las Brisas – including through the Thanksgiving weekend – to submit their recommendation by a self-imposed deadline of Dec. 10.

“We will be working as furiously as possible and if we can get it out any sooner than that, we will,” he promised.

Shaw said he appreciated the judges’ “commitment” and “enthusiasm” but said he was concerned that if the commissioners receive the recommendation on Dec. 10 and then decide to grant the Las Brisas permit, other required steps in the permit process mean “it may be problematic to get that done by Jan. 1.”

He added that if the permit does meet the requirements to be issued, “one of our goals” is “to beat the January time frame.”

He urged the judges to find “every opportunity to expedite the process,” and pledged that the TCEQ would also work, consistent with its own rules and federal rules, to hasten things, as well.

He then asked that the judges “turn over every rock” to speed up their process, adding that he wanted their recommendation “quickly done, but thorough.”

It’s hardly a sure thing that another negative recommendation from the judges will lead to a permit denial. Administrative law judges recommended against granting an air permit to the planned White Stallion power plant in Matagorda County, between Houston and Corpus Christi, which will also burn petroleum coke as well as coal.

The TCEQ commissioners voted to grant that permit last month, with tighter requirements for some pollutants. The White Stallion facility must still receive operating and wastewater-discharge permits.

[For details of the second hearing on the Las Brisas permit, held Oct. 18-21, see the coverage of the Corpus Christi Caller-Times, which reported daily on the testimony.]

– Bill Dawson

Photo credit: U.S. Coast Guard