Clean Air Act

Aug. 2, 2015

by Kiah Collier
Texas Tribune

coal plants
The nation’s more than 600 coal-burning power plants are the main target of President Obama’s Clean Power Plan, his most determined effort yet to tackle the effects of global warming by reshaping the nation’s power sector. Photo by Callie Richmond

President Obama is set to unveil the nitty-gritty of his sweeping, state-by-state plan to fight climate change Monday — his most determined effort yet to tackle the effects of global warming by reshaping the nation’s power sector.

When he does, no one doubts that Texas will sue.

Taking the federal government to court over environmental regulations has been a palpable source of pride and political capital for Gov. Greg Abbott, who filed dozens of lawsuits against the U.S. Environmental Protection Agency as attorney general. Both he and his successor, Ken Paxton, have promised the same approach with the so-called Clean Power Plan, which seeks to drastically cut carbon dioxide emissions from the nation’s power plants.

But some of those who will bear the brunt of complying with the new regulations are calling that knee-jerk reaction shortsighted.

Some Texas electric utilities are joining environmentalists in hoping policymakers — after securing another campaign trail talking point — eventually will craft a strategy to meet the new requirements to avoid being slapped with a mystery plan devised by the EPA and to bolster regulatory certainty.

"I think it’s always better for the state to participate in the plan rather than having the feds do the plan and tell you how it’s going to be," said John Fainter, president and CEO of the Association of Electric Companies of Texas, referencing a similar situation in 2013 involving greenhouse gas permits. "So I hope when the litigation is concluded that there’s time and willingness to do so."

The federal regulations seek to drastically cut carbon emissions from the nation’s existing power plants – 30 percent from 2005 levels by 2030, under a draft proposal outlined last year. They largely target the nation’s more than 600 coal-fired power plants, the largest source of greenhouse gas emissions.

Rather than issuing a blanket regulation, however, federal regulators are offering states a host of options to reach pollution reduction targets — making coal plants more efficient, for example, or increasing the use of cleaner-burning natural gas. States also may expand their wind and solar portfolios and energy efficiency initiatives — or adopt "cap and trade" programs, schemes in which companies bid on the right to pollute.

Under the preliminary plan, Texas — home to about 20 operational coal-fired power plants — would have to slash roughly 200 billion pounds of carbon dioxide emissions in the next two decades. The state’s ultimate target will become known when Obama unveils the final rule Monday.

"The climate is changing. It’s changing in ways that threaten our economy, our security and our health," the president says in a video posted to the White House’s Facebook page at midnight Saturday, confirming the announcement. "This isn’t opinion, it’s fact — backed up by decades of carefully collected data and overwhelming scientific consensus and it has serious implications for the way we live."

The plan already has drawn one lawsuit from more than a dozen coal-friendly states. But a federal appeals court dismissed the challenge in June, concluding it was premature since the EPA had yet to finalize the rule.

While not part of that early lawsuit, the Texas attorney general’s office has spent $24,000 devising another that it has yet to file, according to information obtained by the Tribune under a public records request.

Initially, states were to submit plans by next summer detailing how they would reach compliance with the new standards by 2020. Word on the street, said Fainter, is that the EPA may give states extra time, responding to concerns from some utilities and states.

An EPA spokeswoman would not confirm or deny that change, but if true Fainter said it would make even less sense for Texas not to come up with a plan achat generique viagra. Some utilities agree.

"If, in fact, the states are afforded more time to craft their (implementation plan), it seems logical that they would want to avail themselves of this time to develop a solution which addresses the individual and unique situation of each state," said Brett Kerr, a spokesman and lobbyist for Calpine, the largest independent power producer in the nation.

Texas doesn’t "necessarily have to stand alone" and could team up with other states to craft a compliance plan if it makes the process smoother, Kerr said. "We believe that the state would be best served by participating in the process."

But that message may not resonate in Texas and other red states where blasting the federal government is a popular pastime.

In March, U.S. Senate Majority Leader Mitch McConnell sent a letter to all U.S. governors urging them not to play along with the new climate change rules.

Governors in at least three states – Wisconsin, Indiana and Oklahoma – have explicitly said they will refuse to comply with the plan unless the final regulations look radically different from the initial proposal. Several other Republican executives — including Abbott — have blasted the proposal without formally committing to the just-say-no strategy.

Abbott’s press office did not respond to requests for comment for this story, while Paxton declined to comment through a spokeswoman.

In June, Paxton called the looming rules part of Obama’s "war on coal and fossil fuels" during a keynote address at an anti-Clean Power Plan event hosted by the Texas Public Policy Foundation.

Last month, the foundation — an influential think tank that champions conservative policies — announced a push to form an interstate compact to oppose the plan, an alliance that would require legislative approval before a state could join.

"It’s pretty hard to imagine that we ever take a position that Texas should comply," said Doug Domenech, director of the foundation’s Fueling Freedom Project. "Regardless of the deadline, the EPA is imposing a plan on Texas and on other states that will result in unnecessary increases in the cost of power to ratepayers."

Amid opposition from utilities, bills that would have directed Texas to adopt a compliance plan died earlier this year during the legislative session that ended June 1.

State Rep. Rafael Anchia, a Dallas Democrat who authored some of that legislation and forceda climate change dialogue as chairman of the House International Trade and Intergovernmental Affairs Committee, said it will take overwhelming pressure from the business — and faith — communities before Texas’ Republican leaders are willing to address climate change. (A recent study aimed at the business community found climate change will have a dire impact on Texas’ economy in the coming decades.)

"I’m sure the first reaction of our governor and attorney general will be to sue the federal government, but I think it’s probably a losing proposition, and if the lawsuit is dispensed with rather quickly then we’re going to have to do something," he said, predicting that "if we just want the default federal plan I think that will be harmful for industry, and business will get behind a special session for a Texas plan."

The utilities association asked state lawmakers not to issue any plan-related mandates or prohibitions "because we didn’t know what we were going to see and chances are pretty good that if the Legislature had done something along those lines it would’ve probably been wrong," Fainter said, adding that some association members are on board with the plan and prepared to comply while others are not.

"We’re just not in a one-size fits all environment," he said.

Non-coal dependent utilities like Calpine that are better positioned to comply with the plan are far more comfortable in calling on Texas to play ball post-lawsuit. Utilities including NRG and Luminant declined to comment for this story.

Large municipal utilities in the Austin, San Antonio and El Paso areas have already taken major steps toward reducing greenhouse gas emissions.

"We were already moving towards renewables before all the proposed plans were in place," said Eddie Gutierrez, a spokesman for El Paso Electric Company, which is set to be coal-free by 2016.

Meanwhile, environmentalists point to data showing that Texas — the nation’s No. 1 wind energy producer — is well on its way to compliance as it is.

"Texas is already on track to achieve about 65 to 70 percent of the reductions that will be required under the Clean Power Plan," said John Hall, Texas director for the Environmental Defense Fund’s clean energy program.

Hall, who said the group plans to publish its analyses soon after Obama’s announcement, also emphasized that Texas — as a huge producer of natural gas — will benefit economically from the new regulations as other states seek that cleaner-burning fuel as part of their own compliance plans.

A recent report Calpine co-commissioned — touted by Obama on Twitter — found that carbon dioxide emissions nationwide decreased 12 percent from 2008 through 2013 even as the economy grew, Kerr noted.

Throughout the Clean Power Plan debate, environmental and public health advocates have argued that the regulations not only would help combat climate change, but bolster public health and conserve water in parched Texas. They also suggest that plan opponents are exaggerating the economic burdens.

"We think that Texas is well-positioned to comply with the plan and if you’re well-positioned to comply with a federal law, it just doesn’t make a lot of sense to go down a path that’s going to be expensive and unfortunate for everyone involved," said Chrissy Mann, a senior Texas campaign representative with the Sierra Club’s Beyond Coal Campaign.

Fair Use Notice
This document contains copyrighted material whose use has not been specifically authorized by the copyright owner. SEED Coalition is making this article available in our efforts to advance understanding of ecological sustainability, human rights, economic democracy and social justice issues. We believe that this constitutes a "fair use" of the copyrighted material as provided for in section 107 of the US Copyright Law. If you wish to use this copyrighted material for purposes of your own that go beyond "fair use", you must obtain permission from the copyright owner.

July 26, 2013

David Doniger’s Blog
NRDC Switchboard

State and industry groups led by Texas and coal-based power companies lost another challenge to EPA’s carbon pollution standards today, the latest in their string of unsuccessful lawsuits trying to block EPA’s climate protection actions under the Clean Air Act.

The Court of Appeals in Washington upheld actions EPA took in 2010 to make sure that someone would be there to issue permits to big new sources of carbon pollution when Clean Air Act permitting requirements took effect in 2011.

To make a long story short, in 2009 and 2010 EPA issued the long-overdue "endangerment finding" – the scientific finding that carbon dioxide and other heat-trapping pollutants contribute to dangerous climate change – and a set of carbon pollution standards for new cars and trucks. Those standards automatically triggered Clean Air Act permitting requirements for large new carbon pollution sources – under the law no such plant could be built after the start of 2011 without a permit demonstrating that it will use the best available carbon pollution controls.

The Court of Appeals rejected Texas’s attack on those requirements in June 2012, in a case called Coalition for Responsible Regulation v. EPA.

The present case concerns steps EPA took to make sure that companies wanting to build big new plants had some permitting agency, state or federal, to turn to – some entity that could grant the permits they need to legally begin construction.

Every state except Texas worked with EPA to make sure that either the state or EPA would be available to keep new plant construction going by reviewing permit applications and making the necessary best-technology findings.

Only Texas refused. Texas flat-out denied that carbon permits were needed – a claim the Court of Appeals rejected in the 2012 case.

And so EPA stepped in as a temporary permitting agency. If EPA hadn’t kept the permitting lights on in Texas, then building or expanding a major industrial plant in the Lone Star State after January 2011 would have been a violation of federal law.

Texas sued, joined by Wyoming and trade associations for some of the biggest carbon polluters. Federal courts rejected Texas’s repeated attempts to block EPA while the case proceeded (see here and here).

Today’s court decision reaffirms that the Clean Air Act applies even in Texas, that it would have been illegal to build plants without the needed permits, and that EPA’s stepping in saved Texas companies and the Texas economy from all kinds of trouble.

In short, EPA’s actions helped, rather than hurt, Texas and its industry allies. Because they could not show injury, and because they’d be worse off if the court blocked EPA’s steps to keep the permitting lights on, the Court of Appeals ruled they had no standing to complain. Case dismissed.

Texas and its allies are on a long losing streak. The Supreme Court has twice upheld EPA’s Clean Air Act authority and responsibility to curb carbon pollution, in Massachusetts v. EPA and American Electric Power v. Connecticut. The Court of Appeals in Washington has turned away at least four challenges by these states and industry groups. I already mentioned the big 2012 decision in Coalition for Responsible Regulation (Texas is appealing to the Supreme Court, but that’s what’s charitably called a long-shot). A group of would-be new coal plants lost a challenge to EPA’s proposed carbon standards for new power plants. Just this month, the court overturned an industry-backed exemption for so-called biogenic carbon sources. And now today’s decisions.

When you are on a losing streak this bad, it’s time to fire somebody and look for a new strategy.

Fair Use Notice
This document contains copyrighted material whose use has not been specifically authorized by the copyright owner. SEED Coalition is making this article available in our efforts to advance understanding of ecological sustainability, human rights, economic democracy and social justice issues. We believe that this constitutes a "fair use" of the copyrighted material as provided for in section 107 of the US Copyright Law. If you wish to use this copyrighted material for purposes of your own that go beyond "fair use", you must obtain permission from the copyright owner.
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