Texas vs. The EPA: A Paradox

Over the past several weeks, Texas has done everything in its power to block EPA measures intended to ensure protection from greenhouse gas pollution emitted from large sources in Texas.  With the Federal Court of Appeals in Washington, D.C. expected to make an imminent decision regarding Texas’ latest challenge to EPA’s protective measures, we thought it would be helpful to identify what is at stake:

• On April 2, 2007, the Supreme Court found that greenhouse gases are air pollutants covered by the Clean Air Act.   As of January 2, 2011, the Clean Air Act requires that large emitters of greenhouse gas pollution obtain permits applying the best technology available to control their greenhouse gas emissions.
• EPA gave all states, including Texas, notice that state permitting programs must address significant emissions of greenhouse gases and Texas alone has chosen not to act.
• EPA is not trying to take over the Texas permitting program.  Because Texas has expressly stated that it will not conform its laws to meet federal requirements, the EPA has developed a program especially for Texas to issue just the greenhouse gas permits for new facilities and facilities making major modifications in Texas.  This action will ensure the smooth implementation of the construction permit program for major new industrial sources.  Victor Flatt, a  distinguished professor of environmental law at the University of North Carolina and distinguished scholar at the University of Houston’s Bauer College of Business put it well:

“Texas admits that it lacks the administrative authority to issue permits for GHGs, and therefore, this is not a case in which EPA has stripped a state of authority that it was previously exercising.  Texas’s central, and paradoxical, complaint here is that EPA is taking away from Texas a power that the state itself claims it cannot, and does not want to exercise.”

• EPA officials have stated publicly their desire for the State of Texas to take on this responsibility (as all 49 other states have) for themselves.  In a state strategic to the nation’s energy supply and output, the EPA’s actions protect Texas facilities from an interruption in business rather than letting Texas businesses suffer from the uncertainty that the State’s intransigency has created.

The irony in Texas’ current attempt to circumvent federal law is that, if the state is successful, it will bring the construction of new power plants and major industrial facilities to a screeching halt.