What’s Texas Losing in its War on the EPA?

Courtesy The Greater San Antonio Chamber of Commerce

Attorney General Greg Abbott has filed multiple lawsuits against the EPA

If you search for “EPA” on  the  website of the Texas Attorney General, you’ll find news releases touting how Greg Abbott is defending Texas against the United States Environmental Protection Agency (EPA).

“Texas Prevails Against EPA,” says one headline.

“Court Grants Texas Motion to Stay EPA’s Legally Flawed Cross-State Air Pollution Rule,” says another.

And there are lots more about how “Attorney General Greg Abbott Files Challenge” to the EPA’s greenhouse gas regulations.

Or to the EPA’s “Tailpipe Rule.”

Or to the EPA’s “Unlawful Attempt to Takeover State Air Permitting.”

Why so many lawsuits against the federal agency that claims it’s just trying to protect us from breathing dirty air?

“The lawsuits that we’ve filed show that Texas has made its choice. Texas is picking to side with the business leaders in this state,” Abbott told the Greater San Antonio Chamber of Commerce back in May.

What’s on the other side?

A “bulging federal government that wants to tax more, spend more and regulate more,” Abbott told the audience in the Alamo City.

Lawsuits Haven’t Stopped EPA

But how effective have all the lawsuits been in preventing the EPA from making industry meet new, more stringent limits for emitting air pollution?

For example, power plants. Texas maintains that new EPA “greenhouse gas” regulations will be so onerous on industry that they’ll kill jobs and make it harder to build new power plants. Yet, one professor sees signs to the contrary.

“Most of the companies building plants want to err on the side of caution,” says Mark Jones, chair of Rice University’s political science department. “They’re all obtaining the permits from the EPA.”

Instead of going through the Texas Commission on Environmental Quality (TCEQ), as would be the usual procedure?

“Yes, they’re going around Texas. Because in the event EPA prevails (in the lawsuits), they don’t want a plant that doesn’t meet EPA approval. So they’re covering their bases,” Jones told StateImpact Texas.

LCRA

Computer drawing of new power plant in Llano County

One example is the Ferguson Power Plant in Llano County. Its owner, the Lower Colorado River Authority (LCRA), last year asked the EPA for a new “greenhouse gas” permit. In its application, the LCRA added a disclaimer, saying its “application is not an admission” that it was agreeing that the EPA had any legal right to require the permit or to enforce the new, tougher air pollution regulations. But the LCRA said it would obey them anyway.

Last November, the EPA granted the LCRA what was the first such “greenhouse gas” permit for a power plant in Texas. It’s scheduled to start producing electricity in 2014.

Court Sides with EPA

One of the biggest lawsuits brought by Texas (and 15 other states) sought to block the EPA’s new regulations on greenhouse gas emissions from industrial plants. In June, the United States Court of Appeals-DC Circuit made its ruling. Texas lost. The EPA won.

The court, led by a conservative chief judge, David Sentelle, said the Clean Air Act gives the EPA the right to regulate greenhouse gases. The court found that the EPA relied on scientific evidence in determining the gases pose a threat to the environment.

“That will most definitely go to the Supreme Court,” says Kathleen Hartnett White, a former chairman of the TCEQ and now with the conservative Texas Public Policy Foundation.

White said while the case was a setback, she feels “Texas is prevailing or tied” in its battle against the EPA.

“This is not just Governor Perry and Attorney General Greg Abbott saying, ‘Let’s sue ’em.’ This is the reasoned conclusion of the three commissioners at TCEQ,” White said.

The TCEQ had to fight back, “Because of extremely flawed rules and a process that eviscerates what for decades has been the state’s authority in these issues,” White told StateImpact Texas.

Former EPA Regional Chief: ‘Tremendous Waste’

“I think all this litigation that the Attorney General of the state is engaged in against the federal government and against the EPA is a tremendous waste of Texas taxpayer money,” said Al Armendariz.

Photo courtesy of EPA

Al Armendariz was the regional administrator for the EPA

Armendariz was head of the EPA’s regional office in Dallas. In April, he quit amid a controversy over his outspoken views on aggressively pursuing polluters. He was seen in a 2010 video using an analogy about “crucifying” companies caught illegally polluting. He now works for the Lone Star Sierra Club on its “Beyond Coal” campaign.

“To date, (Texas) has a very poor track record of winning in Federal court,” Armendariz told StateImpact Texas.

“The good news about the victories of the EPA is that Texans will enjoy the same public health protections as everybody else in the country, despite the best efforts of Attorney General Abbott or the TCEQ commissioners.”

Abbott declined our request to be interviewed. But one of those news releases on his office’s website attacks Armendariz.

Abbott said Armendariz’s “crucify” comment showed how the Obama Administration “is more worried about aggressively advancing its radical agenda (than) fostering job growth … Not only has this flawed and reckless approach forced Texas into unnecessary litigation against the Obama Administration, but worse, it has imposed unnecessary burdens on the very businesses and employers that are responsible for creating new jobs.”

Why Greg Abbott Can’t Lose

If the EPA prevails in court more times than Texas, has Abbott lost? Not at all, says Mark Jones at Rice University.

Dave Fehling/StateImpact

Mark Jones at Rice University

“The importance for Greg Abbott is not so much winning the battles, it’s that he’s fighting them,” Jones told StateImpact.

Jones expects Abbott to run for governor and says his anti-EPA message is targeted at conservative voters.

“Really, Greg Abbott can’t lose. If he wins the case, great, Texas policy prevails over federal policy. If he loses, he’s still gone on record as trying to defend Texas from bad policies from DC and the encroachment of an Obama federal government.”