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Texas Fight! What Other States Can Learn from Texas vs U.S. EPA

By Daren Bakst -- August 12, 2010

Texas is fighting back against the heavy hand of the U.S. Environmental Protection Agency (EPA). All Americans should be proud of–and other states should take note of—not just the spirit but the technical arguments of the Lone Star revolt.

A recent letter to the EPA by both the state’s Attorney General and the Chairman of the Texas Commission on Environmental Quality made it absolutely clear that the state is not going to comply with the EPA’s regulations on the permitting of greenhouse gas emissions.

From the letter:

Dear Administrators Jackson and Armendariz:

In order to deter challenges to your plan for centralized control of industrial development through the issuance of permits for greenhouse gases, you have called upon each state to declare its allegiance to the Environmental Protection Agency’s recently enacted greenhouse gas regulations–regulations that are plainly contrary to United States law [citations omitted]. To encourage acquiescence with your unsupported findings you threaten to usurp state enforcement authority and to federalize the permitting program of any state that fails to pledge their fealty to the Environmental Protection Agency (EPA).

On behalf of the State of Texas, we write to inform you that Texas has neither the authority nor the intention of interpreting, ignoring, or amending its laws in order to compel the permitting of greenhouse gas emissions.


When the United States Supreme Court in Massachusetts v. EPA held that the EPA had statutory authority to regulate greenhouse gases (GHG), it was unlocking unintended consequences, in part because the EPA never properly explained the potential consequences of an endangerment finding for GHG.

Even after the Court’s holding, this did not necessarily mean the EPA was compelled to make an endangerment finding for GHG. Especially in light of the Climategate scandal and other evidence that CO2 does not endanger public health or safety, the EPA should have at least reconsidered its endangerment finding. Unfortunately, it denied the petitions for reconsideration.

Once the EPA determined that it was going to regulate GHG tailpipe emissions for new motor vehicles under the Clean Air Act (CAA), a series of other requirements kicked in. One of these new requirements is that GHG from stationary sources become “subject to regulation” under the CAA’s permitting programs: Title I Prevention of Significant Deterioration (PSD) preconstruction permitting program and the Title V operating permit program.

 Tailoring Rule

By the EPA’s own admission, applying the permitting programs to GHG would lead to “absurd results.” As Marlo Lewis explains, “For example, EPA and its State counterparts would have to process an estimated 41,000 PSD permits per year (up from 280) and 6.1 million Title V operating permits per year (up from 15,000).”

This is where the EPA has gotten creative. The CAA’s plain language requires that PSD permits are required if a source can emit 250 tons per year of an air pollutant and Title V permits are required if a source can emit 100 tons per year of an air pollutant.

If applied to GHG, small sources such as farms and restaurants might have been required to seek permits. The EPA decided to ignore the unambiguous statutory standards and decided to “tailor” the permitting program to reduce the number of permitted facilities.

New construction projects that emit at least 100,000 tons per year of GHG would need to secure a permit. This number would decline over time getting as low as 50,000 by 2016, and at that time, the EPA will review reducing the number even further.

The EPA quite simply is rewriting the Clean Air Act because the absurdity it has caused can be mitigated only by the EPA’s ignoring the statute and instead creating its own legislative language.

Why is Texas Fighting Back?

Texas makes the argument that the EPA believes it can simply rewrite the CAA. It also argues that the CAA does not allow the regulation of CO2:

Instead of acknowledging that congressionally set emission limits preclude the regulation of greenhouse gases, you instead re-write those statutorily-established limits . . . . [Emphasis added].

Texas argues that there are no benefits from expanding the permitting processes to address CO2:

Notably absent from your rules is any evidence that they would achieve specific results; in fact, you assiduously (and correctly) avoid ascribing what environmental benefit may be achieved by mandating permits to emit a uniformly distributed trace, constituent of clean air, vital to all life, that is emitted by all productive activities on Earth.

Texas also is concerned with the timing of the requirements and the practical applicability of the permitting requirements to states. Permits may not be issued after January 2, 2011, without considering GHG. That date is the effective date for new manufactured motor vehicles to meet the EPA’s new tailpipe emission standards.

The permitting process is primarily a state function, not a federal function, through what are called state implementation plans (SIPs). State laws would not automatically apply the EPA’s tailoring rule to their definition of what sources are subject to permitting requirements. Changing what sources are “subject to regulation” on the state level can take a significant amount of time and as Texas argues, the EPA has not taken the proper steps required under the CAA to allow states to challenge the rules or the necessary time to come into compliance.

Lessons for Other States

States need to follow the lead of Texas. The EPA is improperly regulating GHG and is compounding that mistake by exceeding its statutory authority through the tailoring rule. These actions are a huge power grab at the expense of the states.

The EPA is ignoring the CAA’s procedural safeguards that are in place for states to properly implement changes to their permitting processes. The agency instead is trying to shove down the throats of all states a rule that is likely illegal.

Even those state leaders who are the biggest global warming alarmists will recognize that this federal power grab needs to be fought in order to protect the rights of states and their citizens.


Daren Bakst, J.D., LL.M. is Director of Legal and Regulatory Studies for the John Locke Foundation


  1. Steve C.  

    This will be interesting. The phrase, “hoist on their own petard” comes to mind.


  2. Ferdinand E. Banks  

    I know very little about the EPA, but have every reason to believe that they mean well. However they and the US Energy Department just don’t have it. Something is drastically wrong with the economics educations of the people working for those and similar establishments. and I am afraid that only a comprehensive back-to-the-right-schools program can make the necessary corrections. The right schools – I’m afraid that I can’t help you there, but I definitely know something about the wrong schools.


  3. Jon Boone  

    Aside from the administrative nightmare of accounting for the manifold ways carbon dioxide is emitted by culture, let alone redirecting and reducing the compound’s role, the sheer ubiquity of CO2 and the policy difficulties of determining a “safe” dosage should give sane policy makers pause.

    The problem that Texas and other states will have in challenging an EPA policy now sanctioned by the Supreme Court resides in the nuanced legal “precedents” that EPA will use to make the agency invulnerable to such challenges. These will have nothing to do with science and everything to do with legal arcania.


  4. Steve C.  

    Mr. Boone:

    I would not be surprised if the EPA finds lots of justification in the thicket of regulatory law. No doubt regulators have been arguing for years that legal obligations are not what was intended. But this case is pretty clear. The CAA says X procedure must be followed if the EPA determines a substance that must be regulated. I imagine a federal judge would ask, “If this was a predictable result of your decision, why haven’t you asked Congress to change the law?”
    Another argument Texas makes is:
    1. The EPA has approved state procedures for implementing EPA decisions.
    2. The EPA is now directing the state bypass laws legally enacted by the state legislature to comply with the new EPA mandate
    3. The time allowed by the EPA is insufficient to meet the laws and procedures enacted by the state (see #1)
    4. Under what legal authority can the EPA force the state to violate its own laws?
    It’s a federalism argument. Are the states sovereign in their own exercise of unenumerated powers or mere appendages of the federal government?


  5. Jon Boone  

    You may be right here, Steve. I hope so. And, yes, this is a classic federalism argument. But where matters of public health are concerned, particularly as these are conjoined with 14th Amendment “equal protection” issues, the courts traditionally have (1) sided with the executive branch over the legislature; (2) the federal government over the states; and (3) often contorted logic to render the narrowest legal decision in favor of recent precedent.

    All this being said, I’m reminded that the Supreme Court did rule a few years ago that the FDA could not regulate tobacco until it had express legal authority from Congress to do so. But I should also state the Court had not previously ruled that the FDA had the authority to do so, as it did for the EPA and CO2. In any event, good for Texas.


  6. Deuce  

    Regardless of precedents, the EPA is in trouble. It’s not too hard to see that Texas is pining for a very public battle where the facts, or lack thereof, about the true “dangers” of CO2 are put on full display. In this scenario the EPA gets egg on their face if they try to back away, or two eggs on their face when the full absurdity of the idea that CO2 is “pollution” or “endangering” is exposed in a public forum where the hard questions will have to be faced. Make no mistake, in a fair legal proceeding the preponderance of evidence falls heavily on the side of CO2 being perfectly harmless, and in many cases beneficial to the environment.

    Here in California, most of our big cities have HOV lanes. The justification is that they control pollution. However even as the state collects $500 per ticket from violators (read “people who want to use that empty lane that they paid for”), good luck finding any metric supporting the so-called enviromental benefits these lanes are alleged to create. Furthermore the fact is that these lanes are discriminatory. I live 35 miles from where I work. Nobody I work with lives withing 15 miles of me, so I am effectively denied the use of the HOV lanes based solely on a few basic demographics. Meanwhile I pay for their construction and maintenance based on justifications that have not and do not bear the burden of proof. As such I have been blatantly driving to and from work in the HOV lane for 2 years, with the full intent of challenging it to the highest available court. Funny thing is, I have yet to get a ticket. This while cut a half hour off my daily commute and getting a great kick out of the indoctrinated automatons jammed bumper to bumper in the “common folk” lanes.

    This country is lost and its the direct result of the willing ignorance and stupidity of people. Thank god a few folks in Texas have enough intelligence and sanity left to say enough is enough…


  7. Noblesse Oblige  

    We will see how far Texas is willing to take this. It is likely that courts will find against the state, as they almost always do, further pushing the envelope of central control. Perhaps this heralds the beginning of a process that leads to secession.


  8. Larry G  

    Wind and solar power are subject to weather patterns and planetery events, who is so knowledgeable to suggest these generation methods will supply enough energy to maintain current obligations?


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