Texas, Claiming Billions in Costs for No Discernible Benefit, Seeks to Stay EPA’s Regional Haze Action

The State of Texas has requested that the United States Court of Appeals for the Fifth Circuit prevent certain EPA actions relating to regional haze from taking effect during the time that Texas challenges the legality of those actions.  In its motion requesting a stay, Texas asserts that the EPA is insisting on rules that would result in billions of dollars in increased costs to certain coal-fired power plants in Texas, with no discernible benefit.

The dispute relates to a portion of the Texas air regulatory program relating to regional haze that could affect visibility in national parks.   These Texas regulations are a portion of the Texas State Implementation Plan (“SIP”).  Under the federal Clean Air Act, states must develop SIPs to meet air quality goals established in the Clean Air Act.  Upon receipt of a SIP, or portion of a SIP, the EPA will either approve the SIP, or disapprove all or part of it.  For any disapproved portion, the EPA will issue a federal implementation plan (“FIP”) to replace the portion of the SIP that the EPA did not approve.

Texas submitted the regional haze portion of its SIP to the EPA in 2009.   Under the Clean Air Act, Texas must update this portion of the SIP in 2018.

Almost 8 years after Texas submitted to the EPA its regional haze portion of the SIP, and barely two years before this portion is to be updated, the EPA disapproved a subpart of that portion, and proposed a FIP.  The State of Texas, including the Texas Commission on Environmental Quality and the Public Utility Commission of Texas, opposes the EPA’s FIP, and Texas filed a Petition for Review with the Fifth Circuit on February 29, 2016.

In response to a Petition for Review, an appellate court can declare that agency action cannot take effect, if the Court finds that the agency exceeded its authority or was arbitrary and capricious in taking the action.

On March 17, 2016, Texas filed a motion requesting that the Fifth Circuit stay the EPA’s action.  Should the Fifth Circuit agree and grant the stay, this would allow Texas to continue to regulate under its SIP, and would block the EPA’s FIP from taking effect, while the Fifth Circuit considers the Petition for Review.

According to Texas, the EPA’s FIP would require seven existing coal-fired power plants to install new scrubbers by 2021, and it would require seven other coal-fired power plants to upgrade their existing scrubbers by February 2019.  Texas claims that even the EPA acknowledges that compliance with these rules would cost approximately $2 billion.  Texas also asserts that these expensive modifications would result in no discernible benefit to visibility in the national parks.  In essence, Texas claims that such a large cost to achieve no discernible benefit is unreasonable under the Clean Air Act.

Texas also points out that the FIP purports to require upgrades at the facilities during the years after the current regional haze portion of the SIP is scheduled to expire.  Texas argues that the EPA is exceeding its authority in insisting on controls during these later years, at this time.  Rather, Texas argues that any need for controls during these later years should be considered in the context of the next revision to this portion of the Texas SIP, which is due in 2018.

Finally, Texas argues that the EPA’s action substantially increases the risks of interruption of electric service during summer months.  The operators of the coal-fired plants could choose simply to cease operating the plants, rather than spend the money to comply with the EPA’s FIP.  This could decrease generating capacity and put Texas at risk for interruptions in electric service.  In Texas, with the significant reliance on electricity for air-conditioning, a loss of electric service could have a serious health impact, especially to the elderly, those in hospitals and those in daycare centers.

Interestingly, the EPA’s actions appear to affect only certain coal-fired electric generating plants.  While this is not directly a greenhouse gas oriented initiative, I am sure that certain persons within the EPA, and some environmental advocacy groups, are pleased with any regulatory action that substantially increases the cost of burning coal.

For a copy of the State of Texas’ motion requesting a stay of the EPA’s action, click here.

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