At my request, Attorney General Abbott’s office provided me with a copy of the State’s “Petition for Review of the final action of the respondent United States Environmental Protection Agency” in determining that Texas’s current State Implementation Plan (SIP) is not approvable” [quoting from the Federal Register]. This is a huge deal. The future of the state’s petrochemical and refining industries are riding on the outcome, involving thousands of jobs and significant economic activity in exported products, as well as the prospects for cleaner air. The case is filed in the Firth Circuit Court of Appeals in New Orleans. The state’s petition sets out no claim against the EPA. It does not assert that Texas is meeting the standards of the federal Clean Air Act. It does not accuse the EPA of misapplying the law. I presume that these and other grievances will be aired later before the Court. Along with the petition, which is seven lines of type in its entirety, the AG’s office provided me with the EPA’s final rule in the case, which contains a mother lode of information. Most interesting are the comments from organizations in Texas that support or oppose the EPA’s action. There is, for example, this response from TxOGA (Texas Oil and Gas Association): TxOGA is encouraged that EPA is taking action to provide certainty in the regulatory process for businesses. TxOGA supports the ongoing goal of improved air quality; however, commenters do not believe that the proposed disapproval does anything to improve air quality in Texas. Further, the proposal may discourage future business expansion in Texas. And this, from Jackson Walker, counsel to the Gulf Coast Lignite Coalition: (1) Commenters disagree with all the proposed disapprovals because the SIP as implemented by TCEQ meets or exceeds [Clean Air Act] requirements and has met the goals of the CAA. (2) EPA has a history of focusing on results; so, EPA should look beyond immaterial differences in the rule provisions and focus on the positive results that Texas has achieved under the Texas Clean Air Act and the State’s submittals; (3) Texas sources have relied on the submitted rules for as long as 15 years in some cases. To disapprove the submittals after so long puts too much burden on the regulated community, creates regulatory uncertainty, hurts the vulnerable economy by potentially increasing compliance costs, and may discourage future business expansion; and (4) GCLC requests that EPA work collaboratively, not combatively, with TCEQ to resolve any issues under the CAA. What this fight is over is something called “flex permitting.” What this means is that if a facility has, say, three smokestacks, each of which is allowed ten tons a year in pollution, and one goes over the limit, the facility may elect to let that smokestack continue to pollute, so long as emissions from the other two smokestacks are low enough to result in a net overall reduction. I don’t see anything wrong with flex permitting, nor, for many years, did the EPA, but now it is taking a zero-tolerance stand: “The fact that EPA failed to act on the Qualified Facilities Program within the statutory time frame does not dictate the action EPA must take on the program at this time. We cannot approve a program that fails to meet all requirements of the CAA. As discussed throughout our proposal and this final notice, the Qualified Facilities Program fails to meet all requirements.” This claim of laches (similar to a statute of limitations, in the absence of one) is probably going to be the crux of the lawsuit, and judges may well be more sympathetic to Texas’s argument than federal bureaucrats are.
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