Court Allows EPA to Proceed with GHG Regulation in Texas

A federal court last week lifted an emergency stay that had prevented the Environmental Protection Agency (EPA) from proceeding with a Federal Implementation Plan (FIP) for Prevention of Significant Deterioration (PSD) permitting of greenhouse gas sources in Texas while it considered legal challenges against the agency’s authority. The court’s decision means that EPA-issued regulations can curb greenhouse gas emissions from power plants and other large stationary sources in that state.

The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a temporary stay on Dec. 30 preventing the EPA from taking over greenhouse gas regulation in Texas. Texas is the only state that filed a legal challenge, refusing to comply with the rules that took effect Jan. 2.

Texas Gov. Rick Perry, Attorney General Gregg Abbott, and a host of state bodies, including the Texas Commission on Environmental Quality (TCEQ), said in a filing with the appellate court that the EPA’s decision to partially disapprove Texas’ state PSD and title V regulations and impose a FIP without traditional public notice-and-comment procedures is illegal.

But in lifting the stay last Wednesday, the court said that the "petitioners have not satisfied the stringent standards required for a stay pending court review." The court’s decision did not address the merits of the state’s lawsuit against the EPA.

The state continues its legal challenges against the EPA’s rules. Lauren Bean, spokesperson for Texas Attorney General Gregg Abbott, said that the court’s ruling “did not reach the heart of the state’s claim and does not affect Texas’ ability to continue pursuing its legal challenge against the agency.

Meanwhile, the Houston Chronicle said on Friday that the TCEQ was conspicuously absent from a public hearing the EPA held on the matter in Dallas last week. The TCEQ reportedly said that did not attend the hearing because the state agency’s position “had been clearly articulated to the EPA and well documented in several pending court cases.”

"Our attempts to reason with EPA and efforts to have constructive discussions on our position and their authority under federal law have been ignored," the newspaper quoted the agency as saying. "We look forward to pursuing our position in the court system and we are confident that science and the law will prevail."

The bulk of Texas’ power is generated by fossil fuels. Grid operator the Electric Reliability Council of Texas (ERCOT) last week said coal plants provided 39.5% of the state’s power in 2010—2.9% higher than in 2009. Natural gas provided 38.2% of the year’s energy, down 3.9% from 2009. ERCOT also reported that wind power represented 7.8% of the total generation (319,097 GWh), compared to 6.2% in 2009 and 4.9% in 2008. ERCOT added that it has 9,528 MW of installed wind capacity—“the highest in the U.S. and the fifth highest in the world.”

Sources: POWERnews, U.S. Court of Appeals for the District of Columbia, Houston Chronicle, ERCOT