January 06, 2011

Texas is Arguing that EPA Acted Faster than It's Allowed in Air Permitting Move. Texas is Wrong.

On Dec. 30, the EPA announced that it was partially disapproving the Texas State Implementation Plan (SIP) that would not allow it to issue PSD permits for greenhouse gases that were now “subject to regulation.” Continuing its resistance to all things EPA, Texas filed a request for an emergency stay of the disapproval in the DC Circuit. This follows Texas’s request for an emergency stay on the rulemaking which declared GHGs subject to regulation under PSD in the DC Circuit, and later in the Fifth Circuit, both of which were denied.

This time, however, perhaps because it was a holiday, the DC Circuit (without ruling on the merits) entered a temporary stay until the issue could be considered more fully today, January 6. Texas and its supporters are arguing that the EPA should get reversed on this one because it might have violated procedural notice and comment requirements under the CAA in acting so quickly. But this is not the case, as the EPA has followed all relevant procedural requirements necessary for implementing a partial Federal Implementation Plan (FIP) in the face of the inadequacy’s of Texas State Implementation Plan (SIP) as it applies to greenhouse gases now “subject to regulation.”

The modern Clean Air Act is a federal creation based on Congress’s commerce clause power. The federal government’s ability to preempt state action in the area has been upheld on several occasions.   The Clean Air Act does have a dual federalism model which recognizes that the states can have a role to play in implementation. Specifically, the CAA allows states to have an opportunity to implement CAA requirements within the state’s borders (CAA Sec. 110).

Nevertheless, in this cooperative federalism model, the bottom line requirements of the Act cannot be ignored, delayed or not implemented by the states. Therefore the Act specifically commands the EPA to disapprove a State Implementation Plan that does not conform to the requirements of the Act (CAA 110(k)(1)(C)). The Act requires that all State Implementation Plans have measures that are necessary to meet all applicable requirements of the CAA, which would include the requirements of Sec. 165 (CAA 110(a)(2)).

Specifically important in this instance is that while the CAA allows the EPA to take a certain amount of time to review and disapprove a SIP (60 days after a submission or 6 months after a deadline, as specified in CAA 110(k)(1)(B)), there is no minimum amount of time that the EPA must wait to promulgate a FIP if it has made a finding that a state SIP is inadequate. This is consistent with and indeed compelled by the main purpose of the CAA, which is to protect public health and the environment. Any delay in implementing a plan to meet the Act’s requirements could leave parts of the country and its citizens vulnerable to the scourge of air pollution. Many health and safety statutes allow for such quick action.

In this case the EPA has made a legitimate determination that Texas’s SIP fails to provide for the administration of New Source Review for greenhouse gases which are now “subject to regulation.” Indeed, in its letter of August 2, 2010, and in subsequent communications, Texas has reiterated that it has no intention of amending or attempting to amend its SIP to comply with these applicable requirements of the Act. The EPA therefore has no choice but to substitute a FIP for that part of the SIP that is inadequate.

In point of fact, the EPA has given the state of Texas more procedure and opportunity than required by the Act in order to preserve the state’s control over its SIP as much as possible, and is acting in the least intrusive way possible that is required by the CAA. After it became clear that there would be a finding making greenhouse gases subject to regulation, the EPA provided notice to all states, including Texas, as soon as it possibly could of what requirements must be met for a SIP to be in compliance with the Act. While some state SIPs were immediately compliant, many had to undergo changes in order to come into compliance with the Act. Though many states have objected to the EPA’s legal authority to regulate GHGs in the manner they have proposed, all states except Texas have taken steps to conform their SIPs to the requirements of the Act.

Based on Texas’s claim that it is not following CAA requirements because it does not agree with them or because the state wants to do it differently, the EPA would have had the right to make an immediate finding and indeed take over ALL of the state of Texas’s permitting authority, since the communications from Texas indicate a profound misunderstanding of the health and environmentally based requirements of the Act. Instead, the EPA only promulgated an “interim” emergency rule imposing a FIP because without such a FIP, sources in Texas would be unable to receive permits under the Act at all. Indeed the EPA’s rulemaking is specifically accepting comments for the purpose of taking a different action if such is at all possible. What the EPA has proposed and has done is the minimum required of it under the CAA.

Because of the importance of the health and environmental requirements of the CAA, as well as the importance of allowing sources to be compliant with the Act, the Court should lift the stay.

Victor Flatt, CPR Member Scholar, Taft Prof. Environmental Law, UNC School of Law. Bio.

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