NEW ORLEANS – Texas Attorney General Greg Abbott today filed a brief advancing Texas’ legal action against the U.S. Environmental Protection Agency and its decision to disapprove the State’s Flexible Permits Program. In a legal brief filed with the U.S. Court of Appeals for the Fifth Circuit, the Texas Attorney General’s office explains that EPA improperly rejected the state’s successful air permitting program – and did so more than 16 years after it was established and utilized by Texas regulators.
Texas’ Flexible Permits Program was established in 1994 in an effort to incentivize grandfathered operations to voluntarily enter into the State’s air permitting and environmental regulation program. Facilities that were exempted because of their grandfathered status agreed to submit to state regulation because the program offered them operational flexibility. In exchange for emissions regulations, participants were authorized to allocate emissions on a plant-wide basis rather than by source point. The end result was a program that gave plants greater flexibility and control – but that reduced emissions and complied with all state environmental standards, including all applicable federal Clean Air Act requirements.
At the time that the Texas Commission on Environmental Quality (TCEQ) established the Flexible Permits Program, Texas had a large number of “grandfathered” facilities that pre-dated the State’s permitting program, which did not begin until 1971. As the EPA acknowledges, neither the EPA nor the TCEQ had statutory authority to impose controls on – or require permits for – these grandfathered facilities.
Because of the Flexible Permits Program – and the enactment of Texas laws that later imposed mandatory permitting requirements – there are no longer any grandfathered facilities in the State of Texas. In contrast, many other states across the country are still home to facilities that are grandfathered and therefore exempt from both state and federal permitting requirements.
The TCEQ submitted its Flexible Permits Program rules to the EPA in 1994. Although the TCEQ has been issuing flexible permits without interference from the federal government since the first term of the Clinton Administration, the EPA rejected the rules and disapproved the Texas program on July 15, 2010.
Under the Clean Air Act, the EPA was required to act on Texas’ rules within 18 months. Yet the federal government waited well over a decade – three presidential administrations – to take action on and ultimately reject the TCEQ’s Flexible Permits Program rules. Despite the fact that more than a dozen years passed since the rules were first submitted, the TCEQ attempted to work with the Obama administration and resolve the new EPA administrator’s objections. On June 16, 2010, the commission promulgated draft rules that amended the Flexible Permits Program in an effort to resolve the federal government’s concerns. Despite TCEQ’s efforts, the EPA summarily disapproved the Texas program just one month after the State’s new proposed rules were published.
By rejecting Texas’ Flexible Permits Program, the EPA has unilaterally declared that the program is not in compliance with federal law. The EPA’s decision not only imposes significant uncertainty on entities that employ thousands of Texans, but it threatens the livelihood of their employees – who depend upon those facilities for their jobs.
The EPA’s decision also threatens a regulatory program that has successfully reduced harmful emissions in the State of Texas. Emissions data cited by the Governor’s Office indicates that the Texas clean air program achieved a 22 percent reduction in ozone and a 46 percent reduction in NOx, which outpaces the eight percent and 27 percent reductions that were recorded nationally.
The EPA opted to disapprove the State’s Flexible Permits Program and impose the federal government’s judgment on the State despite Section 101 of the Clean Air Act, which provides that air pollution prevention “is the primary responsibility of the States and local governments.” Section 110 of the Act provides a similar admonishment to respect the states’ authority, stipulating that “[e]ach State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State.”
Today’s brief follows Attorney General Abbott’s July 26 petition for review of EPA’s disapproval, filed with the U.S. Court of Appeals for the Fifth Circuit in New Orleans. The EPA will have a chance to reply to Texas’ brief.