It's Getting Hot in Here

Come January, the Environmental Protection Agency will — in theory — begin regulating greenhouse gas emissions around the country for the first time. Large polluters planning expansions must include carbon dioxide and other gases linked to climate change on their permit applications, with broader regulations coming into force over time.

But not if Texas can help it. Attorney General Greg Abbott last week lodged legal challenges in a federal court against EPA actions on multiple fronts, including a reiteration of the state's long-standing argument against the EPA's scientific foundation for determining the dangers of greenhouse gas pollution. EPA regulation, Abbott's document said, "is the most draconian of its kind of any advanced economy in the world" and would damage the Texas economy.

Whether the flurry of legal activity can derail the EPA remains to be seen. The lawsuits — not just from Texas but also from coal and other business groups around the country, which are joining together to sue — are awaiting a response from a three-judge panel at the U.S. Court of Appeals in Washington, D.C., which will make a ruling about whether to stay the EPA's hand. Moreover, Texas plans to resist the EPA regulations even if the state loses its court battle. Abbott and Bryan Shaw, the chairman of the Texas Commission on Environmental Quality, or TCEQ, told the EPA in a letter last month that Texas would openly defy the regulations and refuse to ensure that companies comply. "We write to inform you that Texas has neither the authority nor the intention of interpreting, ignoring or amending its laws in order to compel the permitting of greenhouse-gas emissions," the letter said. 

The greenhouse gas challenges should not be confused with Texas's separate but equally acrimonious battle against the EPA air-pollution permitting efforts in Texas. Federal regulators have rejected the state's system of permitting big plants — for a variety of toxic pollutants, from benzene to sulfur dioxide — as inadequate because it gives only an overall measure of a plant's pollution rather than more detailed data from individual smokestacks. Here again, Texas charges that the EPA rules will hurt Texas companies; the EPA counters that Texas is defying measures designed to protect the public. Abbott is challenging the EPA on this matter in federal court in New Orleans, and the 130 or so big plants caught up in the crossfire are trying to figure out what to do. The EPA offered one partial solution this week, allowing companies to undergo a voluntary audit but not triggering severe penalties if their past activities with the old permits fall short of EPA guidelines.

On climate change issues, Texas has emerged as one of the country's most vocal opponents of federal regulation — to the disgust, if not the surprise, of environmentalists. "Texas is aligned in this litigation with the biggest polluters in America," says Vickie Patton, deputy general counsel for the Environmental Defense Fund.

In fact, Texas is the biggest polluter in America. Due to its size and heavy concentration of factories, such as oil refineries and chemical plants, the state tops the list of greenhouse gas emitters. That underpins the arguments from Abbott — who did not respond to requests for comment — that the regulations hurt the Texas economy. (In an op-ed in the Houston Chronicle this spring, Abbott said his action against the EPA reflected on the agency's flawed methodologies, but he avoided the question of whether global warming was happening or not.) Gov. Rick Perry has also publicly decried the regulatory interference and its drag on business. 

The long campaign

The state's campaign against EPA climate initiatives began in February, when the attorney general fired off his first petition challenging the scientific basis for the EPA's climate-regulation proposals. Two months earlier, the agency had taken an essential step toward regulating greenhouse gas emissions by asserting the gases posed a danger to human health and welfare. Known as the "endangerment finding," the ruling triggered a clause in the Clean Air Act calling for regulation. Restrictions on greenhouse gases had been considered under the Bush administration but remained stalled until the Obama administration took the matter up. A critical 2007 Supreme Court ruling, much-resented by conservatives, found that the EPA had the authority to regulate the gases. The Texas petition in February asked the EPA to recant its endangerment finding, and a court filing signaled the state's intent to mount a legal challenge.

Texas' filings last week, to the D.C. Circuit court, read in part like a traditional lawsuit but also ran through whole gamut of political arguments against climate regulation. Abbott challenges the EPA on four fronts. In blasting the the science behind the EPA's endangerment finding, he charges that the EPA relied excessively on the findings of "unaccountable volunteer scientists spread across the globe and unchecked by the American electorate." In other words, the EPA should have performed its own analysis of the dangers of climate change rather than using information from the Intergovernmental Panel on Climate Change, an international body whose work has stirred controversy. The panel's critics point to its premature forecast of Himalayan glaciers melting and the 2009 release of thousands of hacked e-mails and documents, dubbed "Climategate," that reflected poorly on climate researchers' conduct.

Abbott also takes aim at three other rules designed to implement the findings: one that would regulate tailpipe emissions from cars and effectively increase fuel economy, another that would establish greenhouse gas requirements for plants that are already must apply for a permit for other types of emissions, and a third called the "tailoring rule," which would exempt small polluters but rope in big ones. On a political level, Texas would seem to cheer the exemption of small companies — the less regulation, the better. But acting pragmatically on the legal front, the state argues the federal government can't legally exempt certain companies from regulation it applies to others and still be in compliance with the Clean Air Act.

Texas' challenge to the endangerment finding likely will fail, says the David Adelman, a professor specialized in environmental law at the University of Texas School of Law, because the courts generally defer to agencies on such technical scientific issues. However, he says, the outcome of the "tailoring rule" challenge would "be the harder one to predict."

The politics of resistance

Whatever the result of the court fight, another battle remains over Texas' plan to defy or ignore the regulations.

"TCEQ is not making any preparations for the greenhouse gas regulations," said Terry Clawson, a TCEQ spokesman, in an e-mail. For states like Texas that resist, the EPA can issue the permits on its own, directly to companies — but only after a lag time, up to 12 months in this case, to allow the state a chance to act, Clawson said. The result, he said, would be "uncertainty" for companies potentially subject to EPA regulation, a situation similar to that in the ongoing Texas-Washington fight over permitting of polluters. Some companies could even be subject to a construction ban come January, Clawson said, if the EPA pushes forward.

Abbott, in his filing last week, expressed concern not only about the EPA's rapid timeline but also about the cost to TCEQ of implementing the provisions. TCEQ, he wrote, would have to add 91 full-time employees to deal with climate regulation, at a cost of $4.1 million. The attorney general's office says it has spent $15,608.93 on the lawsuits so far — a figure that includes filing fees, man hours and copying costs — with the endangerment finding being the most expensive.

In the D.C. Circuit court, Texas has consolidated its challenges with those of many other entities, among them the U.S. Chamber of Commerce, the Ohio Coal Association and the National Association of Manufacturers, which all are bringing similar complaints. No one knows what the court will do or when. It could stay EPA action, preventing the agency from enforcing rules starting in January, or it could decide against a stay. Either way, the decision will be the first step in a process that will involve more in-depth hearings and filings on whether the EPA can ultimately proceed.

Texas' motivations are as much political as legal, says Patton of the Environmental Defense Fund, who points to the rabble-rousing language in the filings. "A big part of what is going on here," she says, "is that some of the forces that oppose EPA's effort to carry out the law in the science-based way are trying to engender support in Congress to politically countermand EPA's efforts."

Some in Congress are indeed trying to stop the EPA. Having beaten back controversial cap-and-trade legislation — a proposed alternative to EPA regulation — some lawmakers are now seeking to halt the regulation of climate-changing emissions under the Clean Air Act, too. An effort led by Sen. Jay Rockefeller of West Virginia, a coal-state Democrat, would delay regulation by two years. These efforts have the support of both Republican senators from Texas, Kay Bailey Hutchison and John Cornyn.

Environmentalists, for their part, say that Texas, the nation's leader in wind power, should be embracing limits on greenhouse gases rather than standing in the way. "Texas could be very well-positioned to be a major contributor to a clean-energy economy," Patton says, "and instead it's pouring precious public dollars into delay, deny, obstruct."