Commentary

Texas Leads the Fight - Against Greenhouse Gas Regulations, But Not Greenhouse Gas Emissions

On January 11, the Environmental Protection Agency (EPA) released data, reported by industry itself, on greenhouse gas emissions from nationwide power plants, refineries and chemical plants during 2010. According to that data, Texas continues to be the largest greenhouse gas emitter of any other state, releasing more carbon dioxide and other greenhouse gases than even the combined total of the next two largest emitting states - Pennsylvania and Florida.

Despite these facts, Texas continues to lead the fight against the EPA’s efforts to regulate greenhouse gases, rather than leading the fight to reduce greenhouse gas emissions here in Texas and nationwide.

Spurred by a decision of the United States Supreme Court, the EPA promulgated federal greenhouse gas regulations effective January 2, 2011, that incorporated greenhouse gases into the definition of regulated pollutants that must be regulated.

Even though required by federal law --- which Texas agreed to implement and enforce within Texas borders in lieu of the EPA --- Texas refuses to implement the new greenhouse gas regulations. Texas is the only state to do so, saying it has “neither the authority nor the intention of interpreting, ignoring, or amending its laws in order to compel the permitting of greenhouse gas emissions.” Rather than working with the EPA to implement the new greenhouse gas regulations, as all 49 other states have done or are doing, Texas has chosen instead to challenge the EPA by filing at least two federal lawsuits. Despite Texas’s aggressive litigation efforts, the courts have refused three times now to block EPA from moving forward, even though underlying challenges to EPA’s authority to regulate greenhouse gases are still pending. A three-judge panel with the U.S. Court of Appeals for the D.C. Circuit is scheduled to hear oral arguments on the case in late February.

So, given Texas’s refusal, and in order to assure that Texas’s industries are not subject to delays or potential legal challenges and are able to move forward with planned construction and expansion projects, the EPA has taken the unusual, but legally permissible, step of temporarily taking over greenhouse gas permitting in Texas. Thus, until Texas agrees to regulate greenhouse gases, industrial facilities in Texas needing greenhouse gas permits must get them through the EPA, not the Texas Commission on Environmental Quality (TCEQ).

Interestingly, despite this bureaucratic stalemate, most of Texas industry, as it typically does in such situations, has worked cooperatively with the EPA to secure any necessary greenhouse gas permits. Even though the EPA has stated that it believes the TCEQ is best equipped to oversee greenhouse gas air permitting in Texas, it is currently providing Texas industries access to the permits they need to meet the greenhouse gas regulations. The EPA issued the first such permit in Texas in November, 2011, for a natural gas power plant to be built in Llano County that will replace an existing plant. At this time, fifteen other Texas companies have applied to the EPA for greenhouse gas permits.

So, despite “doom and gloom” predictions that administering the federally required greenhouse gas regulations will cause Texas to lose competiveness in the global marketplace, fail to attract new industry and jobs or foist higher costs on Texas consumers, implementation and enforcement of the regulations are proceeding in Texas --- not by our State, but by the EPA and responsible Texas industries.