TEXAS MONTHLY received the following letter from Bryan Shaw, chairman of the Texas Commission on Environmental Quality, in response to my proposal to end all spending by TCEQ and allow the EPA to take over and fund all activities related to the Clean Air Act. Dear Editor, I read with great interest Paul Burka’s story about the state budget and his argument for eliminating several state agencies including the Texas Commission on Environmental Quality. Mr. Burka’s suggestion that the federal government should simply take over the state’s environmental protection responsibilities is both un-Texan and irresponsible. First, let’s just look at the numbers. The TCEQ is almost an entirely fee based agency. Only 3 percent or roughly $29 million of the agency’s budget comes from the state’s general fund. So Mr. Burka’s math is wrong, and his claim that the state budget would save almost $900 million is absurd. Second, he makes the argument that a federal takeover would result in cleaner air. Not true. Texas’ programs are more effective and more protective than current federal programs. Texas programs have made it possible to virtually eliminate older, dirtier grandfathered industrial facilities around the state. Our air is cleaner-we’ve achieved a 53 percent reduction in nitrogen oxide emissions and overall statewide ozone levels have declined 22 percent since 2000. Finally, why would anybody argue that Washington D.C. should tell Texas businesses how to operate? Texas is a model on how reasonable environmental policy can coexist with a robust economy. Don’t just take our word; look at the results-one of the strongest economies in the nation and the cleanest air in 20 years. Bryan W. Shaw, Ph.D. Chairman Texas Commission on Environmental Quality * * * * My response: Governor Perry and Attorney General Abbott are currently embroiled in a major legal battle with the federal Environmental Protection Agency. EPA says that Texas’s program for environmental enforcement does not comply with the Clean Air Act. The attorney general has filed suit against EPA. The main issue here is Texas’s policy of “flex permitting,” which allows the state to meet Clean Air Act standards by averaging emissions from several sources. In other words, if a refinery has several particularly dirty smokestacks and storage tanks, and several clean smokestacks and storage tanks, TCEQ contends that Texas should be found in compliance if the average of the various emissions meets federal standards. EPA officials disagree. They are taking the position that each source of emissions must meet the federal standard. Texas has used flex permitting since Ann Richards was governor, and EPA has not raised an objection until now. My proposal is that Texas should drop the litigation and invoke the “Pottery Barn Rule”: You break it, you own it. Let the feds take over. Let them collect the fees Texas has used to fund TCEQ. Let the feds go through the time and expense of issuing permits. This will wipe out everything that the state spends to clean up the air–around $885 million in the 2010-2011 budget. Is this not a savings? EPA will have to spend it instead. And the state will save the cost of protracted litigation against the deep pockets of the federal government, a lawsuit that Texas will probably lose. Mr. Shaw characterizes my proposal as “un-Texan” — a low blow if ever there was one — and proceeds to defend his agency’s environmental record. I’m not going to get into a quarrel over cherrypicking statistics. His quarrel is not with me. I’m not the person who is saying Texas’s air is dirty. That would be EPA regional administrator Al Armendariz. He’s the one who is saying that Texas doesn’t comply with the Clean Air Act. Finally, Mr. Shaw asks why anyone would argue that Washington, D.C. should tell Texas businesses how to operate. The answer is that federal law and the Supremacy Clause of the U.S. Constitution allow EPA to do just that. Somehow, Texas state officials from the governor to the chairman of TCEQ have bought into the idea that Texas is entitled to make its own rules. It’s not.
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