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EPA Says Texas Lawsuit Will Not Thwart Enforcement of 'Tailoring' Rule

Texas's claim that it doesn't have to comply with the 2011 greenhouse gas rule deadline is unsubstantiated, says agency

By Elizabeth McGowan

Aug 10, 2010

No doubt, the final tailoring rule released in June has drawn other EPA challengers. For instance, Mississippi and Alabama are among the 17 other states, trade associations, businesses and even environmental organizations that are less than satisfied with its requirements. For example, the has filed a lawsuit against the EPA, calling on the agency to set a science-based national pollution cap for greenhouse gases under the Clean Air Act.

Bill Becker, executive director of the was unavailable for comment. However, in an earlier interview with Energy & Environment Publishing, he said other states are making good faith efforts to meet the tailoring rule deadline — even where governors are less than enamored with the EPA's efforts to curb heat-trapping gases via the Clean Air Act.

Texas Gov. Rick Perry called the tailoring rule arbitrary, capricious and "contrary to the Clean Air Act" in the lawsuit filed against the EPA Aug. 2 in the U.S. Court of Appeals for the District of Columbia.

Smith said he didn't know if Texas has standing to file the lawsuit but they likely have a sympathetic appeals court.

"Most importantly, they have a Fifth Circuit Appeals Court that has tended to be pro states' rights, pro industrial polluters and weak on environmental protection," Smith said. "What they are looking to do is create uncertainty. That's essential to getting an issue back before the Supreme Court to challenge the breadth of EPA regulations beyond tailpipes."


Interestingly, Smith pointed out, the 1992 Rio de Janeiro United Nations Earth Summit spurred Texas to become one of the first states to authorize its agencies to act on greenhouse gases in a manner consistent with federal law.

"That's why we believe the Texas Commission on Environmental Quality has the authority to comply with the tailoring rule," Smith said. "But it was never acted upon."

That inaction prompted Public Citizen to file an October 2009 lawsuit against the Commission on Environmental Quality that would essentially force the state agency to meet greenhouse gas emissions permitting standards that the EPA is requiring with its tailoring rule. A trial is expected to begin this November, Smith said.

If the Texas commission continues to act like a rogue agency, he said, EPA officials eventually have the right to step in and take over permitting and enforcement functions.

"I don't think there's a provision for fining them or sending out a bad report card to anybody," Smith concluded.

Is This Politics as Usual?

The tailoring rule for large stationary pollution sources is being rolled out Jan. 2, in tandem with a timeline for mobile sources that requires auto manufacturers to meet greenhouse gas emissions standards for cars and light trucks.

Large industries already required to obtain New Source Review permits for other pollutants also will have to include greenhouse gases among those permits if their emissions of those gases grows by a minimum of 75,000 tons of carbon dioxide equivalent annually. Initially, the tailoring rule will require about 550 power plants, landfills and other industrial facilities to obtain permits for emissions.

The idea with an incremental rule was to offer a break to apartment buildings, hospitals, schools and other nonindustrial emitters. An estimated 900 additional polluters will come under regulatory review each year thereafter as smaller emitters are added.

The right thing to do

It seems that anytime there are issues with the environment or the laws that people and states are expected to go by the one thing that people always forget is "who is going to pay for it or make up the cost." I really wish doing the right thing didn't mean politics or takeovers. It's just the right thing to do.

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