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

August 14, 2012 | 6:45 AM
By Dave Fehling

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?

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“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.”

Comments

  • Captivation

    Google Earth has been a great tool for scientific discovery.  What we need is a Google Asthma and a Google Cancer to figure out the implications of creating a toxic environment.  

    • SunQueen

      you mean “to understand the consequences of the toxic environment we have allowed our government and industries to create”

  • Tmgr

    The reason a state files a lawsuit against the Federal Government is to seek redress of a wrong committed against it.  The federal court system is designed for just such a task and if Abbot (and the other state’s Attorney’s General) pursues this lawsuit to the Supreme Court then he (and they) have done exactly what they are in office to do.

    The idea that a radical like Al Armendariz is quoted in this article while snide remarks are made about Greg Abbot and his political ambitions are questionably mentioned as motive for the lawsuits without any 1st hand information from Abbot is typical of anything NPR has a hand in.  I’m amazed that the target audience for the left isn’t upset by the fact that the manipulators targeting them don’t even hide their contempt for the intelligence (or more correctly, the lack of intelligence) they believe their target audience possesses.  They do not even pretend to be objective and simply assume that their target audience will lap up the garbage they produce and never once question its veracity or validity.

    Yes, I am a Texan and live smack dab in the middle of the Gulf Coast industrial system and I do not work for any company that would be regulated by the EPA.  The EPA isn’t benevolent, Texans have no control over the EPA and it is being used as an instrument of political attack.

    There’s a reason why the Texas job market draws thousands and thousands net migrants every month from across the U.S. and it isn’t because the Federal government is “building” anything.

    I support Greg Abbot’s efforts to remove the oppressive hand of the EPA from Texas.  There’s a reason our Founding Fathers Constitutionally protected the right to keep and bear arms and it wasn’t for the purpose of supplying a militia to protect against foreign invaders. [There's also a reason that some want to remove this right]  Let’s not forget that the Founding Fathers of our country didn’t revolt against a foreign government, but against their own oppressive central government for which they had no effective control.  Our Founding Fathers feared the imposition of another oppressive central government and created a governmental system designed to protect against that possibility.  This “system” has been usurped and bastardized to the point that we now have an equally oppressive central government and  the “taxation without representation” which was a catalyst for the first “American” revolution.  When we went from saying “The United States are…” to “The United States is…” we stepped in a hole the bottom of which we have not reached.  This will get ugly.  I do not intend to be a subject, I intend to stay a citizen.

    • SunQueen

      So you revolt because you want to breathe noxious, lethal air. How can you relate yourself to the founding fathers in any way, who fought for freedom? You needn’t work for any Big Oil company, they’ve brainwashed you all. Why, if they are so right, have they spent BILLIONS to inject “doubt” into the climate change discussion? ONLY SO THAT THEY CAN MAKE MONEY!
      So in your ideal world, companies can spew out any chemicals they want, and their neighbors can get cancer and everything else without redress? In your ideal world, we rely on a dying, poisonous fossil fuel economy without even trying to seek a better way for the future? WHY are the oily handed Koch brothers throwing all of their wealth into KILLING wind and solar energy? Why do they fight to end tax credits for the growing wind industry, which has provided 37,000 mid-west and western jobs which will be self-sufficient in just two years, provided the credit continues this long? Why do they fight to keep up all the tax credits for their own dirty industry, if our govt can’t support tax credits? They are KILLING the competition, literally, and these sleezebags have somehow, in your mind and the mind of other ostensible patriots, linked their EVIL to freedom! Good God, man, are you advocating armed revolt to PROTECT these people? And their “right” to destroy the air, the water, the land, the entire planet?
      Oh yes, our government is repressive, I agree! Repressive in that the same men you champion have BOUGHT our representatives on both left and right, so that the American people-you and me-have NO say in our collective future. They have spent BILLIONS on propaganda telling you that mercury and tons of CO2 and other byproducts of their industry are harmless, how can you buy that? WHEN 2/3 OF THE COUNTRY IS BURNING?? These are the people who don’t want to pay when their plants leak into groundwater and poison kids with cancer (PG&E)! Our Congressmen leave their sacred offices and work for these very companies! For Monsanto, which is DESTROYING our food and our farming traditions! For the love of God, sir, pick up a science book and read what these pollutants do to us! For the love of your country, your kids, and yourself realize that you have been HAD, and if we all stood together and DEMANDED that corporate money is kept the hell out of politics, we might have a shot at SURVIVAL. Texas pollution blows to Louisiana, Mississippi, Alabama, Florida, and elsewhere… how DARE you say that these people should be poisoned so that your beloved oil companies can save a few lousy bucks on pollution control? WHERE IS THEIR FREEDOM? WHERE IS MINE?

      • SunQueen

        Oh, and I suppose the MILLION BUCKS these industries paid Abbot in 2010 have NOTHING to do with this, it’s just Abbot’s quest for states’ rights you BLITHERING IDIOT.

  • http://www.facebook.com/neil.moyer1 Neil Moyer

    Actually, TX appeals court success re: Flexible Permits will likely lead to EPA/DOJ appeal to the Supremes…this is a big deal once it gets there….http://www.statesman.com/blogs/content/shared-gen/blogs/austin/green/entries/2012/08/13/texas_prevails_at_fifth_circui.html

     

  • risë

    did it ever occur to people like abott that pursuing cleaner energy might create new jobs? Has he ever considered the concept of ‘creative destruction’? Maybe he and the texans and texas companies he fights for should consider entering the 21st century. As stated above, at least texans will have the opportunity to enjoy higher air quality standards thus enabling them to have better health. gee, seems that is not such a bad trade-off. the world’s changing rapidly. why not jump into this century and join in creating innovative, healthier alternatives.

    • Lovablelabby

      did it ever occur to people like rise that sometimes the EPA issues edicts based on hate based revenge politics of anti-free enterprise radicals like al armendariz that end up hurting the very people they want to help. has he ever considered working with free enterprise to find solutions, rather than killing the economy? or is killing the economy and putting thousands out of work the ultimate objective? aren’t you angry your favorite politicians are ivy league educated, don’t live in your neighborhood, pacify you with platitudes, all the while getting rich and sucking up to wall street?
      come november, throw all the incumbents, democrat and republican, out of office.

      • SunQueen

        “the EPA issues edicts on hate based revenge politics”…. Proof, sir? As far as the free economy, we WANT clean energy, so why are the Oil Kings throwing billions into killing solar and wind energy? If the market should decide? Romney is fighting HARD (after being paid by the Koch brothers) to end credits for Wind Energy, which has made 37,000 jobs in the mid-west and west… If tax credits are bad, END THEM TO EVERY INDUSTRY, not just those industries that compete with oil! We are fighting an evil empire that is not content to run their own business (foolish and dangerous as it is) but must actively campaign to DESTROY any options to their product. Your whole argument, therefore, is CRAP.

        • http://www.facebook.com/people/Chester-Chestnut/100003568252595 Chester Chestnut

          Proof Sir? Obviously you are an outsider who knows very little about EPA rule making.

    • Stefan

      Whine more. Abbott is standing up for our rights which are being trampled by the filthy socialist scum. Do you have any idea how much the – unelected – EPA’s laughable rules would cost TX businesses? Here’s a hint: the 1.25 million it cost TX to sue the feds wouldn’t cover the cost of what we’d lose in a single hour. And gee, I hear those businesses pay taxes to the state. Could it be that Abbott actually saved us billions by spending just 1.25 million?

      That was a rhetorical question, by the way. I know you’re not smart enough to understand this kind of stuff.

      Oh, you can keep your “cleaner energy” lies as well. Green jobs. Bwahahaha. Go ask Spain just how well that worked out for them. 25% unemployment sound good to you?

      “Innovater, healthier alternatives” – from where? The feds? What a joke. Clearly you don’t understand where innovation comes from: the free market. The government doesn’t create. It only consumes and destroys. Subsidies, taxes and regulation do nothing but kill business and stifle innovation. If your green crap were truly worthwile, the private sector would be all over it. Instead, you fund your pitiful lies by picking the pockets of taxpayers and giving it to your socialist cronies who paid for Obozo to be elected.

      Sad, pitiful socialists. Completely inept. All you do is tax, consume, steal and destroy.

  • WCGasette

    Some of us would like our state back. That doesn’t mean Greg Abbot for Governor. Is there a law against bad leadership?

  • SunQueen

    Exactly how BRAINDEAD are you Texans? Abbot raised 1.7 million in fundraising and most of it came from the very companies that he now claims are being so injured by the EPA. This isn’t about your freaking freedoms, morons, it’s a quid pro quo business deal, and what’s LOST is your clean air and water. STUPID. You could all drown in a cesspool for all I care EXCEPT that your dirty polluted state causes cancer in OTHER states. How can ANY of you claim to be freedom fighters when your politicians are so OBVIOUSLY in the pocket of big businesses run by evil, destructive men? YOU SHAME YOUR NATION.
    My source, from your own damn paper:
    http://www.dallasnews.com/news/politics/state-politics/20100917-Texas-attorney-general-race-donations-raise-5630.ece

    • http://www.facebook.com/people/Chester-Chestnut/100003568252595 Chester Chestnut

      How do you feel about China? It takes both your job and gives you cancer.

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