As regulations from the Environmental Protection Agency (EPA) to curb greenhouse gases from power plants and other large stationary sources took effect for the first time this week, a federal appeals court temporarily stayed the federal agency’s plan to seize control of greenhouse gas permits from Texas.
The U.S. Court of Appeals for the District of Columbia said in a Dec. 30, 2010 filing that the federal agency must wait until at least Friday so as to give the court “sufficient opportunity” to consider the merits of Texas’ legal bid to thwart federal intervention of greenhouse gas permitting in that state. The court made clear, however, that the stay should “not be construed in any way as a ruling on the merits” of the state’s lawsuit against the EPA.
Texas has 167 facilities that would be subject to the new federal permitting requirements. When the state last month refused to put in place the new regulations, the EPA issued an interim final rule to seize control of greenhouse gas permitting in the state. Texas immediately filed an emergency motion with the appellate court on Dec 30, alleging that the EPA had abused “its powers in an attempt to evade citizen participation in the regulatory process.”
“The Agency relies on its emergency administrative powers to coerce a result that Congress never intended and that the Agency has been unable to achieve through the appropriate regulatory process,” Texas Gov. Rick Perry, Attorney General Gregg Abbott, and a host of state bodies, including the Texas Commission on Environmental Quality, said in the filing.
The parties added: “And now, the day before a holiday weekend, the Agency issues a sweeping and unlawful action, in a transparent attempt to prevent the State of Texas and its citizens not only from commenting on EPA’s unlawful action, but from even knowing about it.”
The state further argued that the EPA’s action to impose “federal control and commandeering critical portions of Texas’ emissions permitting program” was “arbitrary and capricious, and contrary to law, because it seeks to use an administrative power designed to correct minor errors to disapprove Texas laws that EPA knowingly approved nearly two decades ago.”
The EPA’s so-called Tailoring Rule, which took effect on Sunday, requires amendments to state permitting programs and in the federal Clean Air Act’s prevention of significant deterioration (PSD) provisions to include requirements for greenhouse gases. Specifically, it requires all new or modified facilities to obtain an air permit before construction that governs all regulated pollutants, including greenhouse gases. The rule affects, for the most part, fossil fuel facilities, though it does not exempt biomass power producers.
Texas is just one of a dozen states that have not completed the changes to their PSD provisions—though the agency has imposed federal implementation plans (FIPs) in all of these states to give power plants and other polluters a way to obtain permits.
Late last month, the EPA said it would propose new greenhouse gas standards for fossil-fueled power plants and oil refineries this year and finalize the rules in 2012. The action was part of proposed settlements with states and environmental groups that had sued to agency to force it to act on the issue.
Under one settlement reached with 11 states, three environmental groups and New York City, the agency has said it would issue standards for power plants by July 26, 2011, and finalize them by May 26, 2012.
Sources: EPA, POWERnews, U.S. Court of Appeals—District of Columbia