Texas takes legal steps to stop EPA from regulating GHGs under CAA

Saying the US Environmental Protection Agency wrongly outsourced scientific review to a United Nations commission, Texas government leaders said on Feb. 16 that the state will legally challenge EPA efforts to regulate greenhouse gases under the Clean Air Act.

Nick Snow
OGJ Washington Editor

WASHINGTON, DC, Feb. 17 -- Saying the US Environmental Protection Agency wrongly outsourced scientific review to a United Nations commission, Texas government leaders said on Feb. 16 that the state will legally challenge EPA efforts to regulate greenhouse gases under the Clean Air Act.

Separately, a coalition of eight national trade associations, including three from the oil and gas industry, mounted their own legal challenge of EPA’s proposed GHG regulations on the same day. The US Chamber of Commerce, the nation’s largest business association, announced similar plans on Feb. 12.

“Texas is aggressively seeking its future in alternative energy through incentives and innovation, not mandates and overreaching regulation,” Gov. Rick Perry (R) said at a press conference in Austin with Atty. Gen. Greg Abbott and Agriculture Commissioner Todd Staples.

“EPA’s misguided plan paints a big target on the backs of Texas agriculture and energy producers, and the hundreds of thousands of Texans they employ,” Perry stated, adding, “This legal action is being taken to protect the Texas economy and the jobs that go with it, as well as defend Texas’ freedom to continue our successful environmental strategies free from federal overreach.”

Perry said Texas has filed a petition for review with the US Court of Appeals for the DC Circuit, and also will file a petition for reconsideration with EPA, asking Administrator Lisa P. Jackson to review her finding that GHGs threaten public health and safety and should be regulated under CAA.

The state argues that this endangerment finding is not legally supported because EPA relied on the UN’s International Panel on Climate Change for scientific support. IPCC’s global warming report has been discredited since e-mails were leaked showing that key scientists coordinated efforts to hide flaws in their research and tried to keep contravening evidence out of reports, according to Abbott.

‘Parade of controversies’
Perry said, “Prominent climate scientists associated with the IPCC were engaged in an ongoing, orchestrated effort to violate freedom of information laws, exclude scientific research, and manipulate temperature data. In light of the parade of controversies and improper conduct that has been uncovered, we know that the IPCC cannot be relied upon for objective unbiased science, so EPA should not rely upon it to reach a decision that will hurt small businesses, farmers, ranchers, and the larger Texas economy.”

The state’s actions came the same day that the American Petroleum Institute, National Petrochemical & Refiners Association, Western States Petroleum Association, and five other large trade organizations jointly challenged EPA’s finding that GHGs from new motor vehicles and engines contribute to air pollution which poses a threat to public health.

The group is focused first on significant impacts that the endangerment finding will have on stationary sources of GHGs, according to Matt Paulson, a partner in Baker Botts LLP’s Austin office who filed a petition in the DC Circuit Court of Appeals on the coalition’s behalf.

“Specifically, because the [CAA] was not designed to address a problem like global climate change but rather is intend to address local or regional pollution such as smog, EPA’s endangerment finding will open the door to what will be, as acknowledged by EPA, burdensome and wholly unworkable permitting requirements for stationary sources,” Paulson said.

Paulson emphasized that the organizations are not disputing the science behind the existence of global change itself, but believe that EPA’s record supporting its endangerment finding is inadequate. Four days earlier, when the US Chamber of Commerce announced that it filed a formal petition challenging EPA’s decision, Steven J. Law, its chief legal officer and general counsel, made a similar statement.

Tremendous burden
In comments filed with EPA in 2009, Perry noted that regulating GHGs under CAA would impose a tremendous regulatory and financial burden on farmers and ranchers, small businesses, and an energy industry that employs hundreds of thousands of Texans. Families in the state would each face an estimated additional $1,200/year in living costs under the scheme, he added.

“Around the world, Texas has a well-deserved reputation as a rich source of traditional fuels,” Perry said on Feb. 16. “Thanks to bountiful natural resources and an entrepreneurial culture, we have been providing energy for our nation and world for almost as long as there has been a Texas. As a result, we understand that those traditional energy sources are an essential part of any viable energy strategy to meet the needs of our state and nation.

“Unfortunately, the powers-that-be in Washington are anxious to usher in a ‘new era’ by tearing down the old one, using sweeping mandates and draconian punishments to force the square peg of their vision into the round hole of reality,” he continued. “In the process, they are preparing to undo decades of progress while painting hard-working entrepreneurs as self and destroying hundreds of thousands of jobs.”

Perry commented that Texas has aggressively staked its energy future on alternative and renewable technologies through incentives and innovation instead of mandates and regulations. It produces more power from wind than any other US state, and more than all but four of the world’s countries, he indicated. It also is investing heavily in solar energy, with three utility-scale projects due to begin construction soon and others being developed, he added.

Commissioner Staples noted that Texas agriculture, which accounts for $106 billion or 9.5% of the state’s gross product, would be disproportionately damaged by EPA’s proposed regulations. “As a regulatory agency, the Texas Department of Agriculture is required to impose rules based on sound science, not political science,” Staples said, adding, “Not only does state law require this, but it is also a fundamental principle by which regulators all across the US have always lived. EPA has ignored extensive research on [GHG] emissions and based this significant regulation on faulty data.”

Contact Nick Snow at nicks@pennwell.com.

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