The EPA’s War on Texas

The EPA’s War on Texas
Published: 03 January 2011

The Environmental Protection Agency’s carbon regulation putsch continues, but apparently abusing the clean-air laws of the 1970s to achieve goals Congress rejected isn’t enough. Late last week, the EPA made an unprecedented move to punish Texas for being the one state with the temerity to challenge its methods.

According to The Wall Street Journal, the EPA apparently violated every tenet of administrative procedure to strip Texas of its authority to issue the air permits that are necessary for large power and industrial projects. This is the first time in the history of the Clean Air Act that the EPA has abrogated state control, and the decision will create gale-force headwinds for growth in a state that is the U.S. energy capital. Anyone who claims that carbon regulation is no big deal and that the EPA is merely following the law will need to defend this takeover.

Since December 2009, the EPA has issued four major greenhouse gas rule-makings, and 13 states have tried to resist the rush. The Clean Air Act stipulates that pollution control is "the primary responsibility of states and local government," and while the national office sets overall priorities, states have considerable leeway in their "implementation plans." When EPA’s instructions change, states typically have three years to revise these plans before sending them to Washington for approval.

This summer, the 13 states requested the full three years for the costly and time-consuming revision process, until the EPA threatened economic retaliation with a de facto construction moratorium. If these states didn’t immediately submit new implementation plans to specification, the agency warned, starting in 2011 projects "will be unable to receive a federally approved permit authorizing construction or modification." All states but Texas stood down, even as Texas continued to file lawsuits challenging the carbon power grab.

Two weeks ago, EPA air regulation chief Gina McCarthy sent the Texas environmental department a letter asserting that the agency had "no choice" but to seize control of permitting. She noted "statements in the media" by Texas officials and their "legal challenges to EPA’s greenhouse gas rules," but she cited no legal basis. The takeover was sufficiently egregious that the DC circuit court of appeals issued an emergency stay on Thursday suspending the rules pending judicial review.

The EPA claims its takeover is a matter of great urgency, but Texas is being pre-emptively punished for not obeying rules that don’t exist today because the EPA hasn’t finalized them. "Now, at this early stage, there’s no specifics to tell you about the rules in terms of what we’re announcing today, other than they will be done and we’ll move—ake steps moving forward in 2011," Mrs. McCarthy told reporters on a conference call last week about the agency’s "performance standards" for oil refineries, power plants, cement manufacturers and other such CO2-heavy facilities.

The EPA concedes that some 167 current projects will be affected, and many more in the future. WSJ guesses is that all of them will be delayed for years and many will simply die. This is precisely the goal of a politically driven bureaucracy that wants to impose by illegal diktat the anticarbon, anti-fossil fuel agenda that the Obama Administration has been unable to pass by democratic consent.