Texas Attorney General Greg Abbott falls flat in flawed legal challenge against EPA
Last week, the U.S. Supreme Court reaffirmed that the U.S. Environmental Protection Agency (EPA) has the authority to address climate pollution under the Clean Air Act. The Court ruled 7-2 in favor of allowing EPA to require that large industrial sources of greenhouse gas pollution install the best available control technology when building or rebuilding plants that are also sources of other major air pollutants. This means that large cement plants, refineries, power plants, chemical facilities, and other industrial facilities must use modern emissions controls for climate pollution.
This is a big win for Texans who are hard hit by air pollution. Unfortunately, the state leads the nation in energy-related carbon dioxide emissions and is home to several cities and communities with significant air quality challenges.
A 5-4 majority of the Court also held that EPA must narrow its permit program to avoid applying the program to many smaller sources that EPA itself had concluded would pose serious problems yet yield relatively small pollution mitigation benefits. But Justice Scalia recognized that EPA achieved an important victory for public health and clean air. While describing the outcome of the high Court’s decision from the bench, Justice Scalia stated that “EPA is getting almost everything it wanted in this case.”
Why then is Texas Attorney General Greg Abbott saying that the decision was a “stern rebuke” to President Obama and a “resounding defeat” for EPA?
Regrettably, Abbott is using precious public resources to attack clean air protections for Texans. His penchant for rhetorical flourish is in sharp contrast with his actual track record. He has racked up a long list of court losses in his ongoing effort to weaken environmental and public health protections. Abbot and the groups litigating on behalf of Texas’ biggest polluters cannot turn back EPA’s “foundational authority…to protect Americans’ health from the clear and present danger of climate pollution.”
Pattern of failed challenges to environmental and health protections
Abbott, who has been quoted as saying, “What I really do for fun is I go into the office, [and] I sue the Obama administration,” has challenged EPA’s critical climate and health protections at every turn. However, Abbott’s vendetta against EPA has wasted millions of taxpayer’s dollars and his loss column continues to tally higher.
One crusade began in 2010 when Abbott and the Texas Commission on Environmental Quality (TCEQ), the state’s environmental protection agency, refused to issue greenhouse gas permits to industrial facilities in the state, effectively leaving Texas industry with their hands tied. Without a path forward, EPA began issuing permits through a Federal Implementation Plan. In the end, it was industry that spoke up and complained to TCEQ that the situation created by Abbott’s hardheaded stance placed the state at a competitive disadvantage. As of 2014, TCEQ begrudgingly began issuing permits.
The State of Texas not only impeded businesses by refusing to issue the necessary permits, but also sued EPA arguing that the Agency lacked authority to regulate greenhouse gases and administer the permitting program. Dealing a blow to Abbott, the U.S. Court of Appeals for the District of Columbia Circuit sided with EPA. Furthermore, Monday’s decision reiterates EPA’s authority to address greenhouse gases and the central requirement that industrial sources of major air pollutants put in place the best available control technology for greenhouse gases.
Abbott’s losses continued in April of this year as the Supreme Court ruled in favor of the Cross State Air Pollution Rule, a rule that will reduce power plant sulfur dioxide emissions from 28 states by 73 percent and that, lo and behold, was vigorously challenged by Abbott. The 6-2 decision reinforces the "good neighbor" provision of the Clean Air Act, which is intended to ensure that pollution from one state’s power plants does not unduly affect the health and air quality of neighboring states.
In the same month, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of the Mercury and Air Toxics Standard. This decision upholds EPA’s efforts to set the first-ever national limits on some of the most dangerous types of air pollution emitted by power plants, including mercury, arsenic, and acid gases. No one should be surprised to learn that Abbott was also a challenger to these standards, fighting to protect coal plants over the health of Texans once again.
Time for leadership to stop litigating and start innovating
The time-tested Clean Air Act is one of the most profound successes in providing healthier air at a fraction of the predicted costs. The decisions made by federal courts on these cases will have a lasting positive impact on the quality of air we and future generations will breathe. Instead of mounting yet another misguided lawsuit against public health and climate protections, Abbott and other Texas state leaders should take commonsense steps to lead the nation’s clean energy economy and protect the health and well-being of communities and families in Texas.