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.
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