Texas Appeals EPA’s Disapproval of Flexible Permits Program

Texas Attorney General Greg Abbott on Monday legally challenged the U.S. Environmental Protection Agency’s (EPA’s) disapproval of the state’s flexible permits program, a system which allows power plants, factories, refineries, and other industrial plants to exceed emission limits in certain areas as long as they stay within overall limits.

Abbott said that the state’s petition for reconsideration with the U.S. Court of Appeals for the Fifth Circuit in New Orleans was made on behalf of the Texas Commission on Environmental Quality (TCEQ) “in an effort to defend the state’s legal rights and challenge improper overreach by the federal government.”

 “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,” Abbott said in a statement.

The state argues that under the Clean Air Act, the EPA was required to act on Texas’ rules within a year, but it waited more than a decade to take action. Even so, it says, 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.

The commission promulgated draft rules on June 16 that amended the Flexible Permits Program in an effort to resolve the federal government’ concerns, he said, but the EPA still summarily disapproved the Texas program—and only a 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,” Abbott said. “The EPA’s decision also threatens a regulatory program that has successfully reduced harmful emissions in the State of Texas,” he added, citing data from Governor Rick Perry’s office, which finds that the Texas clean air program achieved a 22% reduction in ozone and a 46% reduction in NOx. This compares to the 8% and 27% reductions recorded nationally.

“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,” the attorney general said. “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 facility-wide basis rather than by source point. The end result was a program that gave facilities greater flexibility and control – but that reduced emissions and complied with all state health standards, as well as all applicable federal Clean Air Act requirements.”

Abbott claims that when the flexible permits program was established, Texas had a large number of “grandfathered” facilities that predated 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,” he said.

He also claims that 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, multiple other states across the country are still home to facilities that are grandfathered and therefore exempt from both state and federal permitting requirements,” he said.

In support of Abbotts filing, Gov. Perry called upon the Obama administration to get the EPA “under some control” before “irrevocable damage is done to one of the country’s strongest economies.”

“Instead of worrying about cleaner air, the EPA seems intent upon putting the jobs of tens of thousands of hardworking Texans at risk, mainly so the EPA can impose a system it says will be easier for Washington bureaucrats to understand,” Perry said. “The EPA’s actions would likely result in significantly higher prices for energy and just about everything else, a frightening prospect during a time so many Americans are struggling to make ends meet.”

Sources: Texas AG Gregg Abbott, Texas Gov. Rick Perry