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Why The EPA Has Texas Boiling

State Officials Say They're Being Unlawfully Pressed To 'Pledge Their Fealty' To The Agency

The partisan issue of climate change is also becoming a contest between state and federal authority.

Texas is refusing to comply with what state officials regard as potentially unlawful actions on the part of the Environmental Protection Agency. In a letter dated Aug. 2, state officials accused the EPA of "[threatening] to usurp state enforcement authority and to federalize the permitting program of any state that fails to pledge their fealty." The letter is signed by Texas Attorney General Greg Abbott and state Commission on Environmental Quality Chairman Bryan W. Shaw.


The EPA has been dogged by lawsuits and petitions since it finalized its 2009 "endangerment finding," which holds that sources of greenhouse gases threaten the public health and welfare. That decision was limited to motor vehicles, but it established greenhouse gases as a pollutant under the purview of federal regulators, triggering further regulations.

At the heart of the newest controversy is the EPA's "tailoring rule," by which the agency has reinterpreted the Clean Air Act in order to exempt smaller polluters from greenhouse gas regulations that it plans to roll out. "They've substituted their judgment" for that of lawmakers, Shaw told "They did Congress' job."

The Clean Air Act "explicitly sets the thresholds" that determine when a polluter becomes subject to regulation, he said. But "instead of choosing to say [that] it obviously doesn't make sense to apply [the Clean Air Act] to greenhouse gases, [the EPA] instead decided to rewrite what Congress intended, and so they pushed beyond what I think is legally allowed."


Both EPA Administrator Lisa Jackson and her opponents agree that the framers of the Clean Air Act, last amended in 1990, did not contemplate greenhouse gases. Applying the letter of the law to carbon emissions would require the EPA to regulate schools and hospitals in addition to power plants and oil refineries. But EPA's solution to this, the "tailoring rule," has exposed the agency to accusations of performing a legislative function and bullying state governments.

"They basically have said, 'never mind if there are certain processes in place,'" said Shaw. "There seems to be a policy at EPA at this time that they don't follow the protocols to get there, they just decide what they want to have happen and they mandate the states do that."

The EPA's "endangerment finding" prompted the attorneys general of Texas and Virginia, as well as the Ohio Coal Association and other industry groups, to file petitions challenging the scientific underpinnings of the link between climate change and human activity. In a 217-page document issued last month, Jackson dismissed their concerns, citing a "robust, voluminous and compelling" body of evidence that climate change is a serious threat.

EPA regional administrator Al Armendariz has framed Texas' refusal to comply as the latest chapter in the perennial battle between regulators and the industries they target. He said in a statement that the state's "unsubstantiated claims are the same sort that have been made -- and ultimately proven wrong -- every time EPA has, over the past 40 years, moved to implement the Clean Air Act's protections of public health and welfare."


Regardless of the prudence or legality of the "tailoring rule," the EPA's stalwart march toward regulation guarantees that energy legislation will remain a salient issue in the media and in Congress. Senate Majority Leader Harry Reid, D-Nev., has not indicated whether he intends to devote floor time after the August recess to an amendment introduced by Sen. Jay Rockefeller, D-W.Va., that would impose a two-year delay on federal regulation. And even though President Obama has said he will veto any bill designed to hamstring the EPA, measures to block the federal regulation of greenhouse gas emissions have currency on Capitol Hill, even among the most zealous proponents of a price on carbon. House Energy and Commerce Chairman Henry Waxman, D-Calif., has expressed a willingness to at least consider such an initiative.

Some political observers have questioned the EPA's aggressive posture on this issue, especially given Obama's stated preference for new legislation to address the problem of climate change. Despite its effect on lawmakers, the EPA has not indicated that its actions were ever intended to spur legislative action. Instead, Jackson has maintained that the Supreme Court's 2007 Massachusetts v. EPA decision compels the EPA to regulate greenhouse gases under the Clean Air Act absent "some reasonable explanation as to why it cannot or will not" do so.

The fight will surely intensify this fall in anticipation of the agency's first new rule, which will take effect on Jan. 2, requiring states to issue permits for new stationary sources, such as power plants or oil refineries, as well as existing stationary sources that have been modified in a way that significantly increases emissions.

It could be the opening salvo in a years-long battle. Applying a decades-old statute to pursue a contemporary aim has inflamed Texas officials, and Alabama, Nebraska, North Dakota, South Carolina, South Dakota, Mississippi and Louisiana are pursuing legal action of their own. And officials at Arizona's Department of Environmental Quality have no choice in the matter: Republican Gov. Jan Brewer signed a bill in April prohibiting state agencies from regulating greenhouse gases without legislative consent.

Nonetheless, a majority of states are expected to accommodate the EPA's regulatory regime, especially given that some have already embarked on carbon reduction initiatives of their own. The Regional Greenhouse Gas Initiative (RGGI), a coalition of 10 Northeastern and Mid-Atlantic states, has been auctioning carbon allowances to power plants on the Eastern seaboard since September 2008. And in June 2009, the EPA granted California a waiver, allowing the state to impose more stringent air pollution standards for motor vehicles.

Whether other states accept the EPA's rules may depend on the personality and views of their governors. "I don't believe that we'll see every state do this, but obviously, there are some states that are very concerned about this because the governors don't believe that global warming is a problem that must be addressed," said Daniel J. Weiss, director of climate strategy at the Center for American Progress.

"For example, I would be surprised if [Pennsylvania Gov. Ed Rendell (D)] raised this concern, but [Tom Corbett (R)], his possible successor, might. I doubt that [California nominee Jerry Brown (D)] would raise this concern, but [Meg Whitman (R)] might."

"In terms of the big picture, a lot of it depends on the outcome of the elections this fall."

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