Air Splitting

The battle over Texas' environmental regulations came to a head Wednesday as the Environmental Protection Agency shot down the state's air-pollution permitting regime for large plants. It's the latest episode in a larger cultural and political fracas pitting Texas against Washington — and business against government — that continues to take center stage in the race for governor. 

The state's system, the EPA said in its press release, "allows companies to avoid certain federal clean air requirements." The ruling will affect 122 plants, many of them refineries and chemical plants, which the state grants "flexible" permits. The permits allow the plants to report only total emissions, rather than pollution from each individual unit of their facilities — a practice environmentalists have charged allows the companies to mask dangerous pollution spikes in specific areas.

It's unclear what effect the decision will have on the facilities. While business interests and conservative politicians contend the decision could kill thousands of jobs, the EPA has yet to specify how it will force the state to revamp its regulatory apparatus, and what the affected plants must do to comply. But it's hardly too soon for the state's gubernatorial candidates to dive into the debate.

The set-to seems a natural chapter in the narrative of Gov. Rick Perry's re-election campaign, in which he plays the state crusader against choking regulation from meddling Washington liberals. Perry, who has devoted considerable time and verbiage to EPA bashing, described the latest move as "irresponsible and heavy-handed" and called on President Obama and Congress to "rein in this rogue agency, and stop the EPA from continuing to threaten Texas families, their jobs and cost of living."

Democratic gubernatorial challenger Bill White, meanwhile, faces the awkward task of casting the EPA dustup as a Perry failure while not appearing too cozy with the Obama administration — from which he already has taken pains to distance himself. A former official at the federal Department of Energy, White said the EPA decision highlights long-standing deficiencies in Texas, along with Perry's habit of spending more time bashing Washington than working for Texas. "Instead of solving a problem that he was alerted to by the Bush administration, Perry created a confrontation with the EPA in order to write new chapter in his book about the federal government," White said in a statement. "His failure is bad for Texas businesses. I guarantee that as governor, I'll bring permitting authority back to Texas where it belongs."

The affected Texas plants include, ironically enough, two federal facilities, Fort Bliss and the Department of Energy Pantex plant (a nuclear weapons facility near Amarillo), according to the governor's office. The EPA decision creates considerable uncertainty about how such facilities go about legally complying with the Clean Air Act. The EPA has proposed a "voluntary compliance audit program" to help companies that hold flexible permits come into compliance with federal law.

The big question now is "how heavy EPA wants to be in rectifying those individual permits," said Matthew Tejada, the executive director of Air Alliance Houston, an environmental advocacy organization. For example, he said, the EPA could issue notices of violation against the affected plants, take over the permitting program from the Texas Commission on Environmental Quality or fine Texas for having an illegal program. Joe Hubbard, a spokesman for the EPA region that includes Texas, said that the agency was adding staff to aid the transition to a stiffer regulatory regime.

The anti-EPA crowd has sounded the alarm that tougher pollution restrictions will translate directly into job loss. Debbie Hastings, vice president for environmental affairs at the Texas Oil and Gas Association, suggested that in a worst-case scenario, some refineries might have to shut down completely, putting every job at risk. Uncertainty in the permitting regime could also cause facilities to put expansion or upgrade plans on hold, which would also cost jobs, she said.

"About 93 percent of the Texas refineries operate under a flexible permit, and that's about 20,000 direct jobs," she said. "And for each direct job, there's 14 indirect jobs, so we're talking 280,000 Texas jobs."

U.S. Sen. John Cornyn, R-Texas, also took the bad-for-the-economy tack. The Obama administration, he said, is "burying the Texas economy with this EPA overreach."

Cornyn pointed to Texas's "strong record of reduced emissions and improved air quality," and similarly, Perry points to a 22 percent reduction in ozone since 2000. Environmentalists say these gains are a result of federal — not state — action. Indeed, they say, Texas is the only state singled out by the EPA for a deficient permitting regime.

"Texas is operating on a completely different plane," Tejada said. "They take the federal requirements, and they bend them at every end. So they don't break, but they sure don't resemble the federal requirements anymore."

Under the state's flexible permitting system, administered by the Texas Commission on Environmental Quality, plants must meet an overall cap on emissions but can choose the most expeditious manner to do so. Texas has had flexible permitting in place since the mid-1990s, and environmentalists have been fighting the system ever since. The EPA's permitting requirements, which are carried out by individual state agencies like the TCEQ, are more precise, specifying limits for the units within each facility. This is important, environmentalists say, to ensure that pollutants aren't too concentrated in one area of the plant, which could endanger people in nearby developments.

Last November, the EPA named an aggressive new administrator, Al Armendariz, formerly an associate professor in environmental and civil engineering at Southern Methodist University in Dallas, to head its regional office that includes Texas. In the last few months, the EPA has taken over permitting for three big plants — the Chevron Phillips chemical plant in Baytown, the Flint Hills Resources refinery in Corpus Christi and a power plant in Collin County.

Texas Attorney General Greg Abbott has filed a legal challenge against the EPA in a federal court in New Orleans over aspects of the Texas permitting program. Meanwhile, last month, after EPA haranguing, the TCEQ proposed revisions to its rules on flexible permitting. A public comment period on those proposed changes starts July 2 and runs to Aug. 2. Bryan Shaw, the chairman of the TCEQ, said in a statement that the EPA, "as far as we know," did not take the proposed changes into consideration in its announcement on Wednesday.

"Texas flexible permitting program complies with the federal Clean Air Act," Shaw said in a statement. "The flexible permitting program has contributed to improved air quality in Texas, and if the state is prevented from using the program, air quality could actually suffer."