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Environmental Protection Agency

Once again to SCOTUS for Texas and the EPA

Plus ca change, and all that.

Texas again went head-to-head with the Environmental Protection Agency before the U.S. Supreme Court on Wednesday, this time challenging federal limits on the emission of pollutants like mercury, acid gases and other toxic metals from power plants.

Joined by 20 other states, Texas is arguing that the EPA didn’t properly consider the $10 billion annual price tag of its regulations, which “threatens to drive a number of coal-fired electric utilities out of business.” The rules target more than 50 coal- and oil-fired power plants across Texas, and industry and labor groups are also challenging them.

The EPA counters that Congress never directed the agency to consider costs the way Texas and other states think it should have. And in any case, the agency argues, the benefits far outweigh the costs. The agency asserts that the rule prevents up to 11,000 premature deaths per year. Mercury, a highly toxic chemical that can build up in the human body, is linked to brain abnormalities and developmental disorders.

“The [mercury] rule will importantly reduce serious hazards to the public,” the American Academy of Pediatrics wrote in a legal brief supporting the EPA. “Those hazards … are particularly acute for vulnerable groups, including children who can suffer debilitating, lifelong effects” from toxic pollution.

[…]

At the heart of the case is whether deeming regulations “appropriate and necessary” should include an aggressive consideration of costs early in the process. The plaintiffs say yes; the defendants say no. The D.C. Circuit Court agreed with the defendants last year, pointing out that the courts have previously said the EPA doesn’t need to consider costs that way unless Congress directly tells it to.

If the high court disagrees, a key issue will be how the benefits of environmental regulations should be quantified. Right now, the EPA says the benefits of the mercury rule could total as much as $80 billion, which dwarfs the estimated $10 billion cost.

Opponents say the $80 billion figure is misleading. Only $4 billion to $6 billion of it comes directly from reducing mercury pollution, they argue; the rest is a “co-benefit.” That’s because removing mercury from the air also removes the particulate matter it’s often attached to — leading to increased health benefits.

During oral arguments on the case Wednesday, Chief Justice John Roberts said that type of co-benefit calculation “raises the red flag” and looks like the EPA is trying to reduce particulate pollution through the back door. That would be an “end-run” around a separate part of the Clean Air Act that the agency must follow for that type of pollution, he said.

“It’s not an end-run, and it’s not a boot strap,” responded U.S. Solicitor General Donald Verrilli, who was defending the EPA. Calculating co-benefits is “a perfectly appropriate way to deal with getting at metals and other pollutants that would be hard to get at directly,” he said.

I’m sure there’s some subtle legal reason why removing the particulates attached to the mercury shouldn’t count, but I’m too simple a soul to see the logic of it. That won’t be an issue if SCOTUS agrees with the DC Circuit about the bigger question of whether or not the EPA had to consider costs in the first place. I’m sure you’ll be shocked to hear that Anthony Kennedy is the swing vote. Let’s hope we get the good Justice Kennedy this time. The good news is that Texas has an abysmal won-lost record on matters like these. But there’s always a first time, so let’s not get too confident.

Yes, we can cut back on coal

It won’t be that hard, and it will come with a lot of benefits.

Texas burns more coal than any other state in part because of its large and growing population and industrial base. But the carbon-intensive fuel accounted for less than 40 percent of the state’s power use last year.

The federal proposal calls for Texas to reduce its carbon emissions 39 percent from 2005 levels by 2030. In contrast, West Virginia and Kentucky, which generate nearly all of their power from coal, would be required to make cuts of 20 and 18 percent, respectively.

Some Texas officials have questioned whether the proposed reduction is even possible without a radical shift in generation toward natural gas, wind and solar and a stronger push to use energy more efficiently. Texas’ power grid operator has said about half of the state’s coal-burning capacity might be retired under the federal plan.

But some experts say Texas wrongly views the rules as an existential threat to its energy-heavy economy. Instead, they argue, the state could achieve the federal targets without a lot of new initiatives.

The disconnect persists because “this regulation hits the status quo harder than any other, and we have powerful economic interests in this state wanting to maintain the status quo,” said Thomas McGarity, a University of Texas at Austin law professor who specializes in government regulation.

The combination has caused some operators to decide whether to retire their coal plants or retrofit them with expensive new pollution controls.

In its formal comments on the proposal, the Sierra Club said Texas could achieve the EPA’s proposed target by retiring 10 coal-burning power plants that are more than 40 years old and replacing them with natural gas-fired plants.

“We talk about how there is a war on coal, and that’s true,” said Victor Flatt, a professor of environmental law at the University of North Carolina at Chapel Hill. “But there isn’t a war on fossil fuels. This rule is favorable to natural gas. In the end, I don’t think it will have the huge economic impact that people say it will.”

But there are concerns that the EPA will require states to make emissions cuts too quickly, leading to unintended consequences.

See here and here for the background, and remember again that reducing the use of coal for power generation would also greatly reduce water usage, which would have ancillary benefits for Texas. The crux of the complaint by the TCEQ seems to be that it’s not fair to ask more of Texas than some other states, including Kentucky and West Virginia, which produce the most coal but which use much less of it since they’re so much smaller than we are. I guess “Texas exceptionalism” stops when the discussion turns to responsibilities. I don’t know about you, but I think the great state of Texas is more than up to the task of being a leader in reducing coal consumption. Too bad the TCEQ – and I presume more than a few Republican officeholders – think so little of our state’s abilities.

ERCOT acknowledges that meeting EPA clean air requirements won’t be that big a deal

From Texas Clean Air Matters:

ERCOT

Well, it didn’t take long before the Electric Reliability Council of Texas (ERCOT) released, at the request of Texas’ very political Public Utilities Commission, another report about the impacts of the Environmental Protection Agency’s (EPA’s) rules designed to protect public health.

This time ERCOT, which manages 90 percent of Texas’ electric grid, looked at the impact of seven EPA clean air safeguards on the electric grid, including the Cross State Air Pollution Rule (CSAPR), the Mercury Air Toxics Standard (MATS), the Regional Haze program (all of which go back before the Obama administration), the proposed Clean Power Plan, which would set the first-ever national limits on carbon pollution from existing power plants, and others. What was surprising to learn, though, is that after power companies in the state start complying with EPA’s other clean air protections, the proposed Clean Power Plan poses a minimal incremental impact to the power grid. We would only have to cut 200 megawatts of coal-fired generation, which equates to less than one coal-fired power plant.

For as much doom-and-gloom we heard last month in ERCOT’s report about the Clean Power Plan, they certainly seem to be singing a different tune this go-around. The new report shows that Texas can go a long way toward complying with the Clean Power Plan by meeting other clean air safeguards, for which Texas power companies have had years to prepare.

Very soon power companies in Texas will install control technologies to reduce multiple – not just one – pollutants, thereby making compliance with EPA’s subsequent regulations easier and more cost-effective. In the end, Texas will only need to take a minimal amount of additional aging coal plants offline by 2029.

Plus, other energy resources, like energy efficiency, rooftop solar, and demand response (which pays people to conserve energy when the electric grid is stressed) are gaining ground every day in Texas. They have proven to be vital resources on the power grid that help reduce electricity costs for Texas homes and businesses.

Energy efficiency, in particular, provides significant reductions in power plant emissions, including carbon dioxide, sulfur dioxide, and ozone-forming pollutants, and has a four-to-one payback on investment. This is the type of performance worth investing in.

See here for the background, and click over to read the rest. In addition to what the EDF says above, complying with the new regulations would also save a ton of water, which is a pretty big deal in and of itself. So let’s have less whining – and fewer lawsuits – and get on with the compliance. It’s a win all around.

Here come the new ozone standards

I have three things to say about this.

Over the objections of Texas officials, the Obama administration on Wednesday proposed a long-delayed rule to slash levels of ozone – a smog-forming pollutant known to worsen asthma, lung disease and heart conditions.

The regulation is the latest example of the federal Environmental Protection Agency’s use of the Clean Air Act to crack down on the pollution wafting from factories, power plants and tailpipes.

“Bringing ozone pollution standards in line with the latest science will clean up our air, improve access to crucial air quality information and protect those most at risk,” Gina McCarthy, the EPA administrator, said in a statement. “Fulfilling the promise of the Clean Air Act has always been EPA’s responsibility.”

The agency plans to hold three public meetings and open up a 90-day commenting period before finalizing the rule by Oct. 1, 2015.

Bucking the scientific community’s consensus, Texas environmental regulators have suggested that the proposed limits on ozone — which forms when emissions from cars and coal plants mix with other airborne compounds in sunlight — may not improve public health. They have pushed back against any efforts to lower the standard, suggesting such a move would cost too much.

“I am disappointed, but not surprised, that the EPA has proposed these new, short-sighted regulations,” Bryan Shaw, chairman of the Texas Commission on Environmental Quality, said in a statement. “Environmental regulations should be based on good science, common sense and the certainty that they will achieve the stated health benefits. The EPA proposals fail miserably at meeting any of those metrics.”

[…]

Depending on the severity of their ozone problems, regions would have to meet the lower standards by anywhere from 2020 to 2037.

But scrubbing more ozone from the air — through extra pollution controls, air monitors and retrofitted industrial plants — could cost trillions nationwide, industry-funded studies have estimated.

“This new ozone regulation threatens to be the most expensive ever imposed on industry in America, and could jeopardize recent progress in manufacturing,” Jay Timmons, CEO of the National Association of Manufacturers, said in a statement.

Michael Honeycutt, the TCEQ’s chief toxicologist, is among those who question whether lowering ozone levels would improve public health.

“After an in-depth review of the EPA’s analysis, as well as a thorough study of the relevant scientific literature, the TCEQ has concluded that there will be little to no public health benefit from lowering the current [ozone] standard,” Honeycutt wrote in an article for the TCEQ’s October newsletter. “Why regulate something that is not really going to have a benefit?”

For instance, Honeycutt argues that ozone levels have gone down dramatically in the past two decades, but asthma diagnoses have gone up. In Texas hospitals, Honeycutt said, asthma diagnoses actually increase in the winter when ozone levels are relatively low.

Several other scientists who reviewed his article have called it a misleading effort to equate correlation and causation.

1. I’m sorry, but the TCEQ and the industries that it coddles have no credibility on this. Neither the public interest nor objective fact are the TCEQ’s concern. It may be that the EPA is being too aggressive in combating ozone, and it may be that the likely benefit of doing so is not worth what the cost will be. I’m not qualified to evaluate that. What I do know is that no one should take the TCEQ’s word for it.

2. Whichever standard is adopted – the more-lenient 65 to 70 parts per billion standard, or the stricter 60 parts per billion standard – achieving it is not going to be easy.

For Houston, once the nation’s smog capital, the announcement heralded a harsh reality: even after decades of efforts to scrub the lung-damaging pollutant from the sky, the city’s air is not clean enough to breathe safely and might never be.

“All the easy cuts have been made, and there are very few places we can go to make meaningful cuts,” said Taylor Landin, vice president of public policy for the Greater Houston Partnership, a business association. “From our perspective, it’s only fair that they would consider cost.”

[…]

For Houston to reach the proposed mark, air-quality experts said the state might need to impose tougher emissions limits for industrial permits and do more to replace older and dirtier diesel engines for trucks and cranes at the Port of Houston.

The proposed limit poses a daunting challenge for Houston, which is violating the current standard even as its best year for air quality draws to a close. The region is on track to finish 2014 at 80 parts per billion.

“To be effective, and meet this new standard, it will take great cost and effort to reduce emissions from every individual and business in the region,” said Craig Beskid, executive director of the East Harris County Manufacturers Association.

Even environmentalists questioned whether Houston can hit the proposed target. But they said the tougher rule is worthwhile because it would reduce ozone-forming pollution blowing into the region. The EPA estimates that on the region’s smoggiest days, 40 percent of its ozone forms naturally or blows in from faraway sources.

“Would it be possible for Houston in a vacuum? I’m not sure,” said Adrian Shelley, executive director of Air Alliance Houston, an advocacy group. “But it could be possible if the issue is tackled at a larger level.”

I’ve made this point before, but it’s worth repeating that there’s already a cost for the level of pollution that we have now. It’s just that the polluters themselves don’t bear the brunt of that cost – it gets passed on to the public, in a very uneven and unequal fashion. If the EPA’s regulations force the pollution producers to bear those costs, whether they pass them along or not that will be a more equitable situation. And it should be noted that in this case, the polluters includes everyone who drives. We are highly unlikely to meet any new standard without addressing vehicular emissions. That’s going to require some significant changes, and I don’t think we’re ready for that. Ready or not, it’s coming.

Texas Attorney General Greg Abbott, the incoming Texas governor, has sued the EPA at least 19 times. His office did not immediately respond to requests for comment.

3. Alas for Greg Abbott, these changes will not be implemented in time for him to be anything more than a cheerleader for another lawsuit. That will fall to Ken Paxton, assuming he hasn’t resigned in disgrace by the time a suit is ready to go. Not mentioned in that statistic above is Abbott’s won-lost record versus the EPA. I don’t have an exact figure, but I’m pretty sure he lost more than he won. I’d expect Paxton or whoever gets appointed to replace him to continue that tradition. The EDF has more.

EPA climate change plan would save water

Well, what do you know?

ERCOT

As state regulators fret about how President Obama’s effort to combat climate change would affect the Texas power grid, a new study says the rules would be simpler to adopt than those regulators suggest – and that it would save the state billions of gallons of water annually.

In an analysis released Wednesday, CNA Corporation, a nonprofit research group based in Arlington, Va., said the federal proposal – which requires states to shift from coal power to cut carbon emissions – would slash water use in the Texas power sector by 21 percent. That would save the drought-ridden state more than 28 billion gallons of water each year.

“It’s a surprising finding,” Paul Faeth, the report’s author, said in a statement. “People don’t often associate water conservation with [carbon] cuts, but for Texas, they work together.”

[…]

CNA Corporation’s analysis comes two days after the Electric Reliability Council of Texas (ERCOT), the state’s grid operator, said the proposal would threaten reliability and raise energy costs by as much as 20 percent by 2020 – not including the cost of new power lines needed to keep the grid running.

The CNA report, which relied on a model ERCOT has used in the past, said shifting away from water-guzzling coal power plants and boosting energy efficiency would ease Texas’ water woes.

Compared to Texas’ grid operator, CNA painted a rosier picture of price and reliability effects. With big investments in natural gas and wind power, Texas is already on pace to meet 70 percent of its target by 2029, according to the study. Improving energy efficiency could move the state the rest of the way.

The federal proposal would increase the per-megawatt cost of electricity by 5 percent by 2029, but cut total system costs by 2 percent, the group said.

“We find that the state will be able to meet the final and interim targets with modest incremental effort,” the study said.

See here for the background. The CNA report page is here, the press release is here, the executive summary is here, and the full report is here. It’s not clear to me if CNA was invited by someone to review the EPA plan as it affects Texas or if they did it on their own, but this is a strong argument for going along with what the EPA recommends rather than filing another frivolous lawsuit. The considerable water savings is enough by itself to make this worthwhile.

It’s OK if energy costs go up for now

That’s my reaction to this.

ERCOT

As Texas regulators weigh a response to President Obama’s proposal to combat climate change, the operator of the state’s main electric grid says the plan would raise energy costs and threaten reliability – particularly in the next few years.

In an analysis released Monday, the Electric Reliability Council of Texas (ERCOT) said the plan — which requires states to shift from coal-power to cut carbon emissions — would significantly increase power prices in the next few years. But those extra costs would fall in the next decades as Texans reaped long-term savings from investments in solar power and energy efficiency. 

Under the federal proposal, Texas would need to slash carbon emissions from its power plants by as much as 195 billion pounds of carbon dioxide in the next 18 years, according to a Texas Tribune analysis. That 43 percent reduction is among the larger percentage of cuts required among states.

The EPA suggests that Texas could meet its goal though a combination of actions: making coal plants more efficient, switching to cleaner-burning natural gas, adding more renewable resources and bolstering energy efficiency. Texas would have until 2016 to submit a plan to meet its carbon target.

The ERCOT analysis comes as Texas regulators prepare to file formal comments to the EPA ahead of the Dec. 1 public comment deadline.

[…]

“Given what we see today, the risk of rotating outages increases,” Warren Lasher, director of system planning at ERCOT, said Monday in a media call.

The changes would hit coal-dependent communities around Dallas and Houston particularly hard, Lasher said. Those areas would quickly need new power lines to connect with new power sources. That could prove costly. For instance, officials project a major transmission project for the Houston area to total $590 million.

“All of those costs could ultimately be born by consumers in the power bills,” Lasher said.

And I’m okay with that. The costs would be borne in the short run and would likely lead to lower costs as more renewable sources came online and became part of the statewide grid. As the Rivard Report reminds us, there’s a lot of that happening already. The pollution reduction benefit from the EPA’s directive would be substantial as well. If ERCOT is trying to scare me, it’s not working. I’m sure the EPA would be willing to be flexible with Texas on the schedule if Texas negotiates in good faith and demonstrates a real commitment to meeting the stated goals. Or Texas can sue and lose and get no help in getting this implemented as smoothly as possible. Seems like a pretty easy choice to me. Texas Clean Air Matters has more.

News flash: Greg Abbott wants to sue the EPA again

Nobody could have foreseen this!

Foretelling a new environmental battle between state and federal regulators, Attorney General Greg Abbott on Monday demanded the U.S. Environmental Protection Agency back down from a proposal to expand the definition of federal waters to include seasonal and rain-dependent waterways.

The proposal “is without adequate scientific and economic justification and, if finalized, would erode private property rights and have devastating effects on the landowners of Texas,” he wrote as part of a public comment period on the proposal, threatening to sue if it’s not withdrawn.

EPA officials say the proposal would stiffen penalties for polluting such waterways. More than 11 million Texans, including many in Central Texas, get drinking water from sources that depend, in part, on the intermittent streams.

“It’s important to protect the whole network of streams that flow into rivers and oceans,” said Ellen Gilinsky, a senior adviser for water at the federal agency. “This rule ensures clean waters for Texans to drink and recreate in, clean water for businesses, and clean water for farmers.”

Texas Commission on Environmental Quality spokesman Terry Clawson said the state agency is “concerned that EPA’s proposed rule expands its jurisdiction under the Clean Water Act without Congressional approval.” A spokeswoman for the attorney general’s office said it had consulted with the TCEQ before filing its letter Monday.

Hey, if you can’t count on the TCEQ to look out for your best interests, who can you count on? And who needs to worry about having a sufficient quantity of clean water in Texas?

David Foster, who heads the Texas office of the advocacy group Clean Water Action, said the state environmental agency has shown little appetite for regulating the waterways. He cited permits that had been issued by the agency to subdivisions seeking to discharge treated sewage into intermittent Hill Country creeks that feed the Barton Springs portion of the Edwards Aquifer.

[…]

“We need a federal backstop,” Foster said. “I shudder to think how the political leadership in this state would regulate these waterways.”

I’m pretty sure they wouldn’t, which is of course the problem. Abbott’s brief is here, for those of you with a more legalistic eye than I have. I wonder if he’s recycling arguments in this case as he has in others. If so, it’s the greenest thing he’s ever done. Clean Water Action and PDiddie have more.

From the “Those that disregard history are doomed to repeat it” department

This is the state of environment protection in Texas.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

Texas’ top environmental regulator suggested Thursday that the state may ignore a proposed directive from the Obama administration in June to reduce carbon emissions from power plants.

“I’m concerned that if this is not contested, if we don’t dispute this, if we don’t win, the implications … are only the camel’s nose under the tent,” Bryan Shaw, chairman of the Texas Commission on Environmental Quality, said at an event in the Texas Capitol sponsored by the Texas Public Policy Foundation.

The last time Texas refused to follow federal environmental rules, there were unintended consequences that caused a slow-down of the permitting process that prompted the energy industry to cry foul after losing millions of dollars.

About 150 people attended the event Thursday to hear Shaw and two other panelists speak about the proposal from the Obama administration, which could require Texas to reduce its carbon emissions from power plants by close to 200 billion pounds in the next two decades.

The general consensus among both the panelists and the audience was that the state should sue the Environmental Protection Agency over the rules if they are finalized, and should refuse to follow them. Karen Lugo, director of TPPF’s Center for Tenth Amendment Action, said she is working with state lawmakers on legislation affirming that Texas should ignore the rules unless Congress acts on climate change legislation, which it has never done.

The last time Texas regulators refused to implement federal environmental rules, lawmakers ended up reversing the decision. In 2010, the Obama administration started requiring companies that wanted to build new industrial plants to get “greenhouse gas permits” before beginning construction. When the TCEQ refused, the EPA had to take over, causing delays for some companies that lasted up to two years.

The result was legislation — supported by Koch Industries and the Texas Conservative Coalition, among others — that explicitly gave the TCEQ authority to regulate greenhouse gas emissions so that companies could get their permits quicker.

Asked whether Texas could avoid the same result this time around, Shaw acknowledged that the delays did cause some “economic development costs.” But he said the costs would have been greater had Texas acquiesced to what state regulators say is federal overreach.

“I think those costs were smaller … than not making a principled stand,” Shaw said.

Remember, that’s the guy who’s in charge of the agency that is supposed to enforce environmental regulations in Texas. You will note that nowhere in the story – or really, any story involving people like Bryan Shaw and the TPPF chuckleheads – is there any concern expressed about the cost of not enforcing these regulations on people. I assure you, that is not an oversight. There’s only one cost taken into consideration, and it isn’t about you or me.

What do the Mayors want?

Action on climate change.

The U.S. Conference of Mayors, a bipartisan group that represents the leaders of 1,400 cities, each of which is home to at least 30,000 people, has called on the Obama administration and Congress to “enact an Emergency Climate Protection law that provides a framework and funding for the implementation … of a comprehensive national plan” to reduce greenhouse gas pollution.

If members of Congress understood the urgency of climate change as well as the nation’s mayors do, we might not be in as much of a screwed-up climate situation as we are in today.

The resolution, which was approved by delegates during four days of meetings in Dallas, expresses strong support for the EPA’s draft rules on power-plant pollution. It also calls on Congress to hurry up and extend renewable energy tax credits.

Another resolution approved by the group endorses the establishment of Obama’s proposed $1 billion climate-adaptation fund.

“[R]esiliency efforts, especially those regarding water and wastewater, not only save lives and taxpayer dollars but also play a key role in preparing cities for the challenges they face from these events,” the adaptation-related resolution stated. “[C]ities currently face several barriers to properly planning and implementing resiliency efforts, including funding and financing challenges, insufficient permitting and regulatory flexibility, a shortage of data and modeling information, and a lack of communication and partnership among communities.”

[…]

Another resolution approved on Monday “encourages” the group’s members to “prioritize natural infrastructure,” such as parks, marshes, and estuaries, to help protect freshwater supplies, defend the nation’s coastlines, and protect air quality amid worsening floods, droughts, storms, and wildfires.

Laura Tam, the sustainable development policy director at San Francisco-based urban affairs think tank SPUR, described that resolution as a “statement that de-polarizes climate adaptation.” After all, Tam told Grist, “Who can argue with the premise of encouraging cities to protect waters, coasts, plant trees and improve air quality?”

A higher federal minimum wage.

Mike Rawlings oversaw many minimum-wage workers as top executive at Pizza Hut.

Now, as the mayor of Dallas, he’s trying to determine what a living wage is for city residents and city contract workers.

The minimum wage debate has taken center stage as leaders of cities big and small across the country look for ways to help fix growing income inequality.

“The biggest problem in America … is income disparity, and we see it in Dallas,” Rawlings said. He and other mayors have suffered state and federal budget cuts, watched residents’ household incomes decline or flatten and seen many new jobs concentrated in low-paying fields.

As a proposal to raise the federal minimum wage from $7.25 to $10.10 an hour languishes in Congress, cities and states are taking matters into their own hands, creating a patchwork of minimum-wage rates across the country.

At the U.S. Conference of Mayors meeting in Dallas on Monday, a majority of mayors voted to adopt a resolution to raise the federal minimum wage, sending a message to congressional leaders about how serious the issue is.

Voting has not concluded, and Rawlings said that he was going to vote for the resolution.

“It’s healthier for our economy, neighborhoods and businesses to have a living wage,” he said. “The economy has been stagnant because the lower end doesn’t have disposable income to spend.”

Marriage equality.

[Monday], June 23, at its annual conference in Dallas, the U.S. Conference of Mayors overwhelmingly passed a resolution calling on federal courts, including the Supreme Court, to expeditiously bring an end to marriage discrimination against gay couples nationwide.

Dozens of mayors, including many from states that still restrict marriage to different-sex couples, including Arizona, Texas, Ohio, Colorado, Missouri, and Georgia, were among those who led passage of the resolution.

The resolution, which passed by voice vote, states: “The United States Conference of Mayors reaffirms its support of the freedom to marry for same-sex couples and urges the federal courts, including the U.S. Supreme Court, to speedily bring national resolution by ruling in favor of the freedom to marry nationwide.”

The text of that resolution is here. When would the Mayors like these things? Now would be nice.

Another win for the EPA at the Supreme Court

And thus another loss for Greg Abbott and Rick Perry.

Greg Abbott approves of this picture

The Supreme Court on Monday mostly validated the Environmental Protection Agency’s plans to regulate power plant and factory emissions of greenhouse gases blamed for global warming while imposing some limits on the agency’s reach.

The justices said the EPA could not rewrite specific standards written into the law, but they still handed the Obama administration and environmentalists a big victory by agreeing there was another way for the EPA to carry out its program.

“EPA is getting almost everything it wanted in this case,” Justice Antonin Scalia said from the bench, in announcing the decision. “It sought to regulate sources that it said were responsible for 86 percent of all the greenhouse gases emitted from stationary sources nationwide. Under our holdings, EPA will be able to regulate sources responsible for 83 percent of those emissions.”

[…]

The legal battle in part results from the failure of the administration and Congress to find common ground on the issue of global warming.

The court ruled in the 2007 case, Massachusetts v. EPA , that carbon dioxide and other greenhouse gases are pollutants that can be regulated under the Clean Air Act. That case, which was brought by states that said the EPA under President George W. Bush was not doing enough to fight global warming, concerned regulating motor vehicles.

The Obama administration later reasoned that “stationary sources” — factories, power plants and other structures — were also subject to the permitting requirements in certain parts of the act.

A unanimous panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed with that view. It said that court precedents made the agency’s readings of its powers “unambiguously correct.”

But the EPA has acknowledged that the permitting thresholds set by the Clean Air Act do not fit well with something like carbon dioxide, which is ubiquitous in the environment. While the law said pollution limits of 100 to 250 tons per year triggered permitting requirements, the EPA had to raise those to 75,000 to 100,000 tons per year for greenhouse gases to identify the facilities most in need of regulation.

The Trib and Vox have pretty good explainers of the case and the ruling, so go check them out. It’s not a complete win for the EPA, but it’s still a solid ruling for them. Texas was of course one of the lead plaintiffs in this action, but as has been the case before, they lost. There’s no other litigation pending currently, but I’m sure there will be more in the future. TPM, dKos, and the EDF have more.

Texas will do just fine under the new EPA clean air regulations

Unless it wants to fail, of course, which is always an option under the likes of Rick Perry and Greg Abbott.

Greg Abbott approves of this picture

Texas could lead the way into a less carbon-intensive future under the Obama administration’s plans to sharply reduce greenhouse gas emissions from coal-fired power plants.

Or the state could have trouble keeping the lights on.

The competing views underscore the exquisite complexity of the rules scheduled to be unveiled Monday. The proposed regulation represents the centerpiece of President Barack Obama’s climate agenda – one that could lead to the shuttering of hundreds of coal plants, the nation’s largest source of carbon pollution.

Already Texas officials are lining up against the plan, with 29 members of the state’s congressional delegation – Republicans and Democrats – voicing concern in a letter to the Environmental Protection Agency. They say the rules could drive up electricity bills, threaten reliability and lead to job losses in a state that pumps far more carbon dioxide into the air than any other.

But environmentalists note that Texas already is shifting closer to Obama’s goals. Last year, 63 percent of the state’s electricity came from sources other than coal.

“We will hear a lot of complaining about the rule, but we have a lot of options in Texas that other states do not have,” said Al Armendariz, a former EPA official who now leads the Sierra Club’s anti-coal campaign in Arkansas, Mississippi and Texas.

Oh, there’s plenty of complaining, all right. The hot air generated by Rick Perry and Ted Cruz alone might be enough to offset whatever gains the Obama administration hopes to make via these new regulations. Just remember, when you hear the usual assortments of gasbags start to bloviate about this, we’ve heard it all before, and they’ve been wrong every single time. Consider this, for example:

Let’s flash back to an article from the Van Nuys Valley News, dated Sept. 10, 1970 — when the Clean Air Act was young and eager and taking aim at unchecked, noxious emissions from U.S. cars. “Ford Motor Co. said yesterday in Dearborn, Mich.,” the item begins, “that some of the proposed changes in the Federal Clean Air Act could cut off automobile production in just five years, lead to huge price increases for cars even if production were not stopped, do ‘irreparable damage’ to the American economy — and still lead to only small improvements in the quality of the air.”

Sound familiar? Are you driving a car nearly half a century later? Yes, those controls had a cost — and so too will future efficiency mandates that the Obama administration has put in place — but in the long view, the view that matters, life will go on and be cleaner for it. Not so sure? Consider that between 1970 and 2011, aggregate emissions of common air pollutants dropped by 68 percent, even as U.S. gross domestic product grew by 212 percent and vehicle miles traveled increased by 167 percent. The number of private sector jobs increased by 88 percent during that same period.

So yeah, pay them no attention. And remember as well, they’re vastly out of step with public opinion:

* Among Americans overall, 69 percent say global warming is a serious problem, versus 29 percent who say it isn’t. Among Americans in the states carried by Mitt Romney in 2012, those numbers are 67-31. Among Americans in states carried by Barack Obama, they are 70-28.

*Americans overall say by 70-21 that the federal government should limit the release of greenhouse gases from existing plants to reduce global warming. In 2012 red states, those numbers are 68-24. In 2012 blue states, they are 72-20.

* Americans overall say by 70-22 that the federal government should require states to limit greenhouse gases. In 2012 red states, those numbers are 65-23. In 2012 blue states, they are 73-21. Even in red states, then, support for the feds stomping on states’ rights (on this issue at least) is running high.

* Americans overall say by 63-33 that the government should regulate greenhouses even if it increases their monthly energy bill by $20 per month. In the 2012 red states, those numbers are 60-35. In 2012 blue states, they are 64-32.

On every one of the above questions, in red states, large percentages of independents and moderates favor action. And more broadly, as you can see, those just aren’t meaningful differences between red and blue states on these questions. This applies even in nearly two dozen coal states [emphasis added].

Who wants to bet the Trib will come out with a poll showing the opposite in Texas? I can see it coming from here. Unfair Park and the Rivard Report have more.

SCOTUS upholds CSAPR

Some very good news for people who like to breathe.

Greg Abbott approves of this picture

The question was who should pay for air pollution that crosses state lines. The answer, the Supreme Court ruled Tuesday, is blowing in the wind.

States in the Midwest and South whose polluted air flows north and east must comply with a federally imposed solution, a 6-2 majority of justices ruled.

The decision, written by Justice Ruth Bader Ginsburg, was a boon for the Obama administration and its environmental regulators, who have proposed a rule requiring some 28 upwind states to slash ozone and fine particle emissions by varying amounts because of their downwind effects. Most of those states have rebelled against the one-size-fits-all solution.

The case focuses on air currents miles overhead but has down-to-earth consequences. The EPA blames exposure to ozone and fine particles in the air for one in 20 deaths in the United States, 90,000 hospital admissions, 200,000 non-fatal heart attacks and 2.5 million cases of aggravated asthma.

Attorneys for the objecting states and industries argued that the EPA was imposing a solution on the states before they could devise their own emissions control plans. As a result, Texas solicitor general Jonathan Mitchell said during oral arguments in December, “they have to overshoot and over-control and over-regulate.”

[…]

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the rule last year, ruling that EPA didn’t give states enough time to devise their own emissions reduction plans. It also said the agency did not limit the fix to each state’s “significant contribution” to the overall problem.

But the court’s majority ruled that with air pollution blowing in the wind, it would be nearly impossible to apportion blame precisely, making a federal solution based on costs and other factors more palatable.

The justices also noted that mid-Atlantic and Northeast states cannot meet federal emissions control standards without help from their neighbors to the west and south. Maryland, which spent $2.6 billion on its own emissions control efforts between 2007-10, estimates that 70% of its air pollution floats in over its borders.

See here, here, and here for the background. I confess, I wasn’t too optimistic about this at the time of the appeal, but I’m glad to have been proven wrong. Also proven wrong: Greg Abbott, who was of course one of the 14 AGs to pursue this litigation. Just another bad day at the office for you, Greg. Well, this latest loss by Greg Abbott is a big gain for a lot of people.

The Trib notes that SCOTUS isn’t done with this issue.

The Supreme Court is also expected to issue a ruling in the coming months in a case on federal greenhouse gas permitting rules. Justices had heard arguments in February from Texas and other states against the rules.

I believe that’s this case, and if they uphold the EPA’s actions again it’ll be quite the clean sweep for the Obama Administration. As always, however, you never know what SCOTUS might do, so let’s keep the anticipation in check for now. A copy of the SCOTUS decision is here, a statement from EPA Administrator Gina McCarthy is here, and a statement from the Texas League of Conservation Voters is here. Texas Clean Air Matters, the Texas Green Report, and Daily Kos have more.

Court rules for the EPA against Texas again

Another win for the environment.

A federal appeals court on Tuesday upheld the Obama administration’s new rules that for the first time limit emissions of mercury and other harmful pollutants from coal- and oil-fired power plants.

In a split decision, the U.S. Court of Appeals for the District of Columbia Circuit rejected a Texas-based challenge to the regulations, saying the federal government acted reasonably to protect the environment and public health from poisonous gases and cancer-causing chemicals released into the air by the burning of fossil fuels.

Developers of the White Stallion Energy Center, a proposed power plant about 90 miles southwest of Houston, challenged the federal regulations, arguing that the new limits would be too burdensome and thus prevent them from securing financing for the project. Several industry groups and 22 states, including Texas, joined the fight.

But a divided three-judge panel ruled that federal law and previous court decisions do not require the Environmental Protection Agency to consider cost when imposing new regulations on electric utilities.

[…]

At the time the EPA finalized the rules in 2012, Texas was home to seven of the top 16 mercury-emitting coal plants in the nation, an Environmental Defense Fund analysis found.

“There is no other state that is going to get as much public health benefit than Texas from the mercury rule,” said Al Armendariz, a former EPA official who now leads the Sierra Club’s anti-coal campaign in the state.

See here and here for some background. I’ve long since lost track of which lawsuit by Texas against the EPA is about what, and I don’t think I have any previous blogging on this specific case, but it doesn’t matter. It’s all of a piece, and it’s all about whether we make the polluters be responsible for their actions or we give them a free pass. The EPA counters claims that these regulations are too costly for business with evidence that the health benefits for everyone else will outweigh those costs. That will never satisfy the polluters, of course, and I presume they’ll appeal this first to the entire DC court, then to SCOTUS. It’s a nice win for now but it’s far from over. The LA Times, the DMN BizBeat blog, the Texas Green Report, and the EDF, which has a separate statement beneath the fold, have more, while Wonkblog reminds us of the disproportionate effect of industrial pollution on minority neighborhoods.

Environmental Defense Fund applauds today’s ruling by the U.S. Court of Appeals in Washington, D.C., denying legal challenges to the U.S. Environmental Protection Agency’s (EPA) life-saving Mercury and Air Toxics Standards (MATS). Today’s court decision rejects flawed legal claims by Texas Attorney General Greg Abbott, one of the opponents of EPA’s vital clean air safeguards for our communities and families.

Attorney General Abbott has sued the federal government 31 times since 2004, needlessly costing Texan taxpayer’s nearly $4 million.

The EPA emission standards at issue establish the first nationwide emission limits on the mercury, arsenic and acid gases discharged from the U.S. fleet of existing coal- and oil-fired power plants, the single largest source of these toxic airborne contaminants.

Mercury exposure can impair the brain development of infants and young children. According to the EPA, each year more than 400,000 infants are born with elevated mercury levels in their blood, but the MATS standards will eliminate 90 percent of mercury emitted from coal-fired power plants. In Texas, the rule will annually prevent up to 1,200 premature deaths, while providing between $4 billion to $9.7 billion in health benefits in 2016 and each year thereafter.

“Today’s decision comes as an unquestionable victory for Texans who care about vital clean air safeguards and protecting our most vulnerable citizens – young children and pregnant women. Rather than waste taxpayer’s money and protect the interests of big fossil fuel companies, Greg Abbott and other state leaders should champion life-saving measures that protect the health and well-being of Texans.”

Texas stands with polluters against the EPA one more time

Here we go.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

The Obama administration’s climate change agenda on Monday faced one of its first real tests in front of the U.S. Supreme Court, where Texas and a group of industry leaders challenged an Environmental Protection Agency regulation aimed at limiting greenhouse gas emissions.

The question before the court is whether permits needed by large polluting facilities like power plants, factories and refineries should also restrict emissions of greenhouse gases. Texas and several industry coalitions say the permits, which companies must obtain before building facilities, should not be required for such emissions.

Instead, argued Texas Solicitor General Jonathan Mitchell and Washington, D.C.-based attorney Peter Keisler, permits should only limit emissions of regular air pollutants like sulfur dioxide and nitrogen oxide.

“Greenhouse gas emissions should not be treated the same as other air pollutants,” Mitchell told the court, pointing out that Congress has only passed legislation on traditional air pollutants, not greenhouse gases. “Congress does not establish round holes for square pegs.”

The scope of the question at hand is narrow because it only deals with permitting. In court cases in 2007 and 2011, the Supreme Court upheld the EPA’s ability to broadly regulate greenhouse gas emissions from “mobile sources,” like motor vehicles, and “stationary sources,” like power plants.

Still, if Supreme Court justices agree with Texas and the industry petitioners, the Obama administration’s attempts to combat climate change independently of Congress will suffer a major setback.

“Permitting is one of the most powerful tools in the toolbox,” said Pamela Giblin, an Austin-based lawyer with the firm Baker Botts LLP, which represents many energy and chemical companies that are affected by the regulations. “You’ve got these multibillion-dollar projects; you’ve got bulldozers there waiting until you get the permit. … The agency is never going to have as much leverage over a company as it does when they’re madly trying to get the permission to break ground.”

See here for some background. The Chron sums up what’s at stake.

The EPA made the move to regulate heat-trapping emissions from industrial sources after a 2007 Supreme Court decision that said the agency had the authority to limit greenhouse gases from cars and trucks under the federal law.

As a result, President Barack Obama has tried to bypass Congress by moving his ambitious agenda for addressing climate change through the EPA, angering many Republicans.

In briefs filed with the court, Texas Solicitor General Jonathan Mitchell argued that the Clear Air Act cannot be interpreted to allow EPA’s permitting requirements when the rules cause “preposterous consequences.” By the state’s estimation, more than 6 million industrial sources nationwide would be forced to meet the requirements at a cost of $1.5 billion.

[…]

Legal experts said Texas might not be able to sway the justices because previous court decisions give deference to federal agencies when statutes are ambiguous.

“The Supreme Court has said we defer to the agency if its position is reasonable,” said Thomas McGarity, professor of administrative law at the University of Texas at Austin.

David Doniger, the climate policy director for the Natural Resources Defense Council, said fewer than 200 industrial facilities needed permits in the first two years of the new requirements for greenhouse gases. “So despite all the cries of alarm, the Clean Air Act’s permitting requirements are working just fine,” he said.

[…]

Tracy Hester, professor of environmental law at the University of Houston, described the state’s request as a “classic Hail Mary.”

“Given the court had this whole buffet of issues and still narrowed it to one” when it decided to hear the Texas case, “that makes going for the whole 99 yards unlikely,” Hester said.

Lyle Denniston thinks things went reasonably well for the Obama administration.

As is so often the case when the Court is closely divided, the vote of Justice Anthony M. Kennedy loomed as the critical one, and that vote seemed inclined toward the EPA, though with some doubt. Although he seemed troubled that Solicitor General Donald B. Verrilli, Jr., could call up no prior ruling to support the policy choice the EPA had made on greenhouse gases by industrial plants, Kennedy left the impression that it might not matter.

It was quickly evident that the EPA’s initiatives, seeking to put limits on ground sources of greenhouse gases, almost certainly had four votes in support: Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. They could not seem to accept that, when the challengers themselves are divided on the best way to read the Clean Air Act’s impact on such emissions, the Court should go with one of those choices rather than with the EPA’s.

The most enthusiastic supporter of the industry challengers was Justice Antonin Scalia, although Justice Samuel A. Alito, Jr., asked strongly skeptical questions about EPA’s justification for its actions. Chief Justice John G. Roberts, Jr., revealed little of where he might wind up, acting mostly as a moderator of his more active colleagues, and Justice Clarence Thomas said nothing.

That, of course, left Justice Kennedy. He was quite protective of the Court’s own decision seven years ago, launching EPA into the field of greenhouse gas regulation, and of a reinforcing decision on that point by the Court three years ago. But neither was close enough to the specifics of what EPA has now done, so he seemed short of just one precedent that might be enough to tip his vote for sure.

“Reading the briefs,” he commented to Verrilli, acting as the EPA’s lawyer, “I cannot find a single precedent that supports your position.” It appears that there just isn’t one to be had.

That, then, raised the question: how much would Kennedy be willing to trust the EPA to have done its best to follow Congress’s lead without stretching the Clean Air Act out of shape, as the EPA’s challengers have insisted that it has done? He made no comments suggesting that he accepted industry’s complaint of an EPA power grab.

We’ll know in a few months. Daily Kos has more.

The cost of fighting the inevitable

Trib headline: Anti-Regulation Politics May Have Hurt Energy Industry. Oh, the irony.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

Businesses in energy-related industries in Texas say they have been unable to take full advantage of the natural gas boom that is roaring across the state because of a delay in the issuing of greenhouse gas permits — an instance in which Texas’ anti-regulation stance might have actually hurt business.

The Environmental Protection Agency began requiring the permits more than three years ago, but the Texas Commission on Environmental Quality refused to enact the rules, arguing that it was illegal to regulate greenhouse gases. That left the responsibility to the EPA, which is only slightly larger than its Texas counterpart and has a small permitting division. As a result, the backlog of applications grew quickly, as did the complaints.

Texas lawmakers directed the state’s environmental agency last year to begin following the federal regulations. But it will take months for the agency to implement its own rules to take over the permitting.

The state has long fought with the federal government over regulations, especially those from the EPA. The chairman of the Texas agency, Bryan Shaw, who is among the many state officials who question the science of climate change, has repeatedly criticized the EPA for developing rules that could cripple the Texas economy.

Electric power retailers, along with energy transport and chemical companies, have told the TCEQ that the delay has put Texas at a competitive disadvantage against other states that had agreed earlier to issue the permits. Some executives said they have considered building in other states because of the delays.

[…]

Several industry lawyers and consultants estimated that the TCEQ would issue permits several months faster than the EPA, where in some cases the delays have been as long as two years.

“If it takes six months or a year to start a facility, well, then that’s a year you’re not going to be making any money,” said Bill Jamieson, director for air quality at the environmental consulting firm SWCA. “There’s no question that equity firms and large investors look at that as risk.”

[…]

Pamela Giblin, an Austin-based lawyer who represents many oil and chemical companies, said it would have been difficult for the state to follow rules that it had challenged in court. Next month, the U.S. Supreme Court will hear Texas’ argument that the EPA’s greenhouse gas permitting program is illegal. “If they had taken up the program, there might have been some pressure then to abandon the arguments and to leave the litigation alone,” Giblin said.

If Texas wins the case, “they’re going to look really astute for having taken a firm position.”

But there is no guarantee that will happen. Supreme Court justices have declined to hear Texas’ argument that greenhouse gases should not be considered a danger to public health and welfare.

Jamieson said companies thrive on regulatory certainty, and fighting rules can be more costly than following them.

“It really comes down to politics as to why this was done the way it was done,” he said. “You can look back on a number of instances in the state of Texas where utilities have challenged some pretty significant EPA regulation, and they’ve spent a lot of money, and the end result is: they have the regulation.”

See here for more on the SCOTUS hearing of that appeal, including some links to more in depth analysis of it. And yes, the state’s long and exhaustive fight against the EPA has been nothing but politics. The industry has finally recognized that the cost of denying reality is more than they care to bear, but the state isn’t there yet. Hopefully, SCOTUS will make it clear to them one more time.

EPA and TCEQ settle lawsuits over flex permits

One less court fight for us and the feds.

The EPA and Texas on Wednesday said they have reached a deal over state permits for industrial air pollution, ending a four-year fight that to some had become a symbol of regulatory overreach by the federal government.

The agreement comes after the federal agency initially rejected Texas’ permitting system, which allows some operating flexibility to oil refiners, chemical makers and others to meet emissions limits.

Despite the EPA’s earlier reservations, the Texas Commission on Environmental Quality’s permit system appears largely unchanged – leaving environmentalists disappointed.

Ilan Levin, an Austin-based attorney for the Environmental Integrity Project, said the system has the same potential loopholes as before. “The flexible permit program has a long history of abuse, and a lot of the damage is already done,” he said.

But Bryan Shaw, the TCEQ’s chairman, said the agreement shows that the federal government “now understands why the program is legal and effective.”

The EPA invalidated the flex permit system in 2010, and later that year threatened crackdowns on plants that didn’t meet federal standard. All of the flex-permitted plants agreed to abide by federal standards in 2011, but in 2012 the Fifth Circuit Court of Appeals – yes, them again – ruled that the EPA had overstepped its authority. The EPA chose not to appeal that ruing, and this settlement is the conclusion of that litigation. The Sierra Club statement on this agreement sums it all up nicely.

“The history of TCEQ’s flexible permitting program in Texas has been almost 20 years of confusion and litigation. As TCEQ itself has acknowledged, every single former holder of flexible permits has now received new standard permits, without a single plant closure or loss of a single Texas job, contrary to the heated rhetoric we got from Chairman Shaw and Governor Perry several years ago.

“Moving forward, if TCEQ stays true to the wording of the new program and only issues flexible permits to truly minor facilities, we don’t foresee major problems.

“However, if our large refineries and chemical plants once again try to hide their emissions with unenforceable flexible permits, we’ll have another 20 years of confusion and litigation.”

Scheleen Walker
Director, Sierra Club Lone Star Chapter

The details always matter. Having the right people at the TCEQ, people who will care about those details, matters as well. TCEQ members are appointed by the Governor. Consider that yet another reason to vote for Wendy Davis this November.

SCOTUS will hear another EPA lawsuit appeal

Gird your loins.

The U.S. Supreme Court has agreed to hear Texas’ challenge of federal regulations on greenhouse gas emissions from stationary sources like power plants and factories, the court announced Tuesday. But it declined to hear the state’s appeals of two other decisions, effectively upholding rules that limit such emissions from vehicles and maintaining the Environmental Protection Agency’s assertion that greenhouse gases endanger public health and welfare.

Federal judges had previously knocked down efforts by Texas and several other states, along with powerful industry coalitions, to challenge the EPA’s efforts to regulate greenhouse gas emissions. Should the Supreme Court justices determine otherwise after hearing oral arguments next year, there could be severe implications for rules limiting emissions from big power plants and other facilities. The EPA recently proposed rules to limit carbon dioxide emissions from coal plants, prompting critics to accuse the agency of trying to destroy the coal industry and economy while drawing praise from environmental advocates.

At issue is whether the EPA can use the Clean Air Act, which gives it the authority to regulate emissions of toxic air pollutants and to limit emissions of greenhouse gases as well. In 2007, the court had ruled in the landmark case Massachusetts v. EPA that the EPA could do so for motor vehicles, which has led to stringent fuel-efficiency requirements for cars.

But Texas, joined by Mississippi and industry coalitions including the American Petroleum Institute, is arguing that the Clean Air Act was never meant to apply to anything other than air pollutants, because greenhouse gases like carbon dioxide and methane “[do] not deteriorate the quality of the air that people breathe.” Attorneys representing the groups added that “carbon dioxide is virtually everywhere and in everything,” and called the EPA’s proposed regulations of greenhouse gases “absurd.”

Of the nine petitions the group of states and industry leaders had filed to the Supreme Court regarding its challenge of climate change rules, the justices agreed to hear six, but only want to consider one question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”

I’ve kind of lost track of which lawsuit is which since there have been so many, but this was the most recent appeals court ruling, which went against Texas. SCOTUS has also agreed to hear an appeal of the CSAPR ruling, which went against the Obama administration. The consensus seems to be that this is a fairly narrow issue for SCOTUS to rule on and that the EPA should be on solid footing, but you never know. See Wonkblog, SCOTUSBlog, TPM, and the NRDC blog for more in depth analysis of this.

That pollution isn’t our fault!

You have to admire the creativity.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

Harris County’s problem with tiny, lung-damaging particles in the air can be blamed partly on African dust and crop-clearing fires in Mexico, the state’s environmental agency has told federal regulators.

If the Environmental Protection Agency agrees with the state’s finding, then the county would avoid stringent pollution controls and sanctions for particulate matter, or soot.

The Texas Commission on Environmental Quality is making the case after Harris County last December failed to meet new federal limits for soot. The EPA tightened the limits after a federal court concluded that previous standards were too weak to protect public health.

The state agency has flagged seven days from 2010 to 2012 when high soot levels were “not reasonably preventable” because of particles from faraway places. If not for pollution from Africa and Mexico, also known to regulators as “exceptional events,” the county would have met the new limits, the agency concluded.

Maybe this is what Ted Cruz is talking about when he demands tighter control over the border. Who knew he cared about the environment?

Environmentalists sharply criticized the state’s assertion, saying the agency is “looking for an easy way out” instead of cracking down on harmful pollution.

“It’s not the way to address a serious issue,” said Elena Craft, a Texas-based toxicologist for the Environmental Defense Fund. “Whether the pollution comes from an exceptional event or not, the public health risk is the same.”

[…]

Larry Soward, a former state commissioner who is now board president of Air Alliance Houston, said he expects the EPA to approve the state’s request.

But Soward said he is concerned that progress on air quality would stall if federal regulators allow the exceptions.

“The practical effect will be that no one does anything to ensure the new (particulate matter) standard is met other than what is being done now, which is very little,” he said. “In other words, Houston will come to parade rest.”

The EPA isn’t expected to make its decision till late next year. All snark aside, whether or not this is a real thing shouldn’t distract from the real need to deal with the problems and factors that we do control. A bit of dust that blows in from elsewhere doesn’t change the fundamentals.

Texas loses another lawsuit against the EPA

Getting to be a habit.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

A federal appeals court on Friday rejected a legal challenge by Texas and Wyoming to the U.S. Environmental Protection Agency’s efforts to curb greenhouse gas emissions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, in a 2-1 vote, said the states and various industry groups did not have standing to sue because they could not show that they had suffered an injury or that a ruling throwing out the EPA plan would benefit them.

The decision comes after the same court upheld the EPA’s first wave of greenhouse gas regulations in 2012, and is another win for the EPA, which has a strong track record in the courts in challenges to its rules, particularly those targeting greenhouse gas emissions.

“The states and industry groups trying to block EPA from curbing carbon pollution under the Clean Air Act are on a long losing streak,” said David Doniger, climate policy director for the Natural Resources Defense Council.

Friday’s decision concerned a challenge to the EPA’s efforts to make states include carbon dioxide and other greenhouse gases when they issue permits to industrial facilities setting limits on various types of pollution they emit.

[…]

Frank O’Donnell, president of the not-for-profit group Clean Air Watch, said Friday’s ruling strengthens the hand of the EPA as it starts to implement President Barack Obama’s climate action plan. Obama in June directed the agency to write rules to curb carbon emissions from the country’s fleet of existing power plants.

But O’Donnell said Texas and other states opposed to federal environmental regulations are likely to drag their heels when forced to comply with EPA timelines.

“I predict they will be late filing their plans, due in 2016 under the scenario the president set forth, and will dare the federal government to intervene,” O’Donnell said.

You can see the ruling here, via the Environmental Defense Fund. There have been so many of these lawsuits that I have a hard time keeping track of which one is which, so I’ll just turn this over to the Sierra Club for the last word.

“The U.S. Supreme Court and other federal courts have now ruled in favor of controlling climate disrupting-pollution nine times,” said Cyrus Reed, conservation director with the Lone Star Chapter of the Sierra Club. “Attorney General Greg Abbott and Commissioner Bryan Shaw preferred to spend their time and resources on lawsuits doomed to fail, regardless of the consequences for Texas’s economy, rather than cooperating with the Environmental Protection Agency and upholding the law. Carbon pollution protections are the law, even in Texas. After three years of damaging droughts, it is time for the large polluters and state agencies alike to join the environmental community in working to reduce emissions.”

“While Texas officials were wasting taxpayer dollars with fights against the federal government, Texas legislators were quietly updating state laws in early 2013 to require TCEQ to regulate greenhouse gases under the Clean Air Act,” continued Reed. “Abbott and Shaw have spent millions of taxpayer dollars on these frivolous lawsuits rather than letting regulators do their jobs.”

Be sure to tell Latino voters about this one, Greg.

From the “Wooing Latino Voters: You’re Doing It Wrong” department

Greg Abbott visits McAllen and gives the locals his best reason why they should vote for him.

Gubernatorial candidate Greg Abbott called for unity between Republican candidates and Hispanics in McAllen on Monday, with the promise of being in South Texas much more.

As evidence voters should elect him governor in 2014, Abbott cited the 27 lawsuits he’s brought against the federal government as Texas attorney general, and he spoke of fighting against human trafficking in the Rio Grande Valley.

McAllen is in Hidalgo County, which in 2012 voted 70.3% to 28.6% for President Obama. Many of those lawsuits involve the Affordable Care Act, the environment, and the Voting Rights Act. Latinos – Hidalgo County is 90.9% Latino – are among the strongest supporters of Obamacare, and will be the main focus of its rollout, since so much of the nation’s – and the state’s – uninsured population is Latino. Latinos are also big supporters of having the EPA set standards to reduce air pollution, and of President Obama using executive power to fight climate change. And of course Latinos also strongly support the Voting Rights Act.

So go right ahead, Greg Abbott. Talk about those 27 lawsuits and how deeply committed you are to fighting President Obama and his efforts to expand access to health care, clean up the environment, and protect voting rights. I’m sure Latino voters will be listening.

SCOTUS to hear CSAPR appeal

I’m not terribly excited about anything the Supreme Court does these days, but we’ll see about this.

Greg Abbott approves of this picture

The U.S. Supreme Court decided Monday to take a case that has pitted Texas against the Obama administration over a federal rule aimed at reducing air pollution that crosses state borders.

The decision comes 10 months after a split U.S. Court of Appeals for the District of Columbia Circuit ruled that the Environmental Protection Agency overstepped its authority with the new regulation, which was one of the hallmarks of the administration’s recent efforts to improve air quality.

In seeking high-court review, U.S. Solicitor General Donald Verrilli argued that the appeals court’s decision “hobbles the agency … where the need for a strong federal role is most critical.”

The justices accepted the EPA’s appeal of the lower court’s opinion and will hear the case in the term that begins in October.

See here, here, and here for the background. Texas, naturally, was one of the plaintiffs in this lawsuit. The good news is that since the ruling went against the EPA last October, so there isn’t something for SCOTUS to knock down. But I’m sure they can find something if they want to. Hair Balls has more.

Everybody sues the EPA

The state of Texas and our pollution-loving Attorney General do it because they think the EPA does too much to protect us from harm. Some other groups do it because they think the EPA isn’t doing enough.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

In the suit filed on Thursday, Air Alliance Houston and three other groups accuse the U.S. Environmental Protection Agency of using outdated and inaccurate formulas to estimate levels of air pollution.

The groups say studies show that actual smog-forming emissions can be 132 times greater than EPA estimates, which are based on data provided by the industry. The agency, as a result, does not possess reliable data to protect public health, according to the suit filed in U.S. District Court for the District of Columbia.

“The EPA has a history of dragging its feet on this issue,” said Jennifer Duggan, an attorney for the Environmental Integrity Project, a legal group representing Air Alliance Houston and the other organizations in the case. “It has been aware of these inaccuracies for some time.”

[…]

The lawsuit comes five years after the city of Houston raised similar issues with the federal agency, which uses the emissions data to develop pollution controls, establish limits and guide enforcement.

In response, the agency acknowledged flaws in its formulas and promised to make changes.

See here for the background; this was a part of then-Mayor Bill White’s plan to reduce benzene emissions in Houston. You can see a copy of the lawsuit and the notice of intent to file suit that was sent by the plaintiffs to the EPA in 2012 here. I think we can safely assume that Greg Abbott will not be filing an amicus brief for the plaintiffs on this one.

Texas versus EPA, round one zillion

The desire to coddle polluters is strong in this one.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

A Texas-led coalition of energy-producing states has asked the Supreme Court to hear a case involving the Obama administration’s efforts to regulate emissions of carbon dioxide and other heat-trapping gases.

The petition, which was filed last week, comes 10 months after a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the legal underpinnings of the Environmental Protection Agency’s first-ever rules limiting emissions of greenhouse gases.

In the 33-page petition, the states said the justices should hear their appeal because the new federal rules are hurting their economies. The EPA “is a runaway federal agency that must be reined in,” Texas Attorney General Greg Abbott said.

[…]

David Doniger, who directs climate policy for the Natural Resources Defense Council, said the argument would be a non-starter with the court.

“The court has ruled that the Clean Air Act covers climate-altering pollution, just like any other pollution,” he said. “I don’t see it reaching a different conclusion now.”

The Supreme Court already ruled in 2007 that the EPA had the authority to regulate greenhouse gases, but that’s not stopping Abbott and his gang. This is as much about politics as anything else. Let’s hope SCOTUS remembers its ruling from six years ago and sends this appeal off to the dustbin.

“An accident waiting to happen”

I don’t even know what to say.

There were no sprinklers. No firewalls. No water deluge systems. Safety inspections were rare at the fertilizer company in West, Texas, that exploded and killed at least 14 people this week.

This is not unusual.

Small fertilizer plants nationwide fall under the purview of several government agencies, each with a specific concern and none required to coordinate with others on what they have found.

The small distributors — there are as many of 1,150 in Texas alone — are part of a regulatory system that focuses on large installations and industries, though many of the small plants contain enough agricultural chemicals to fuel a major explosion.

The plant in West had ammonium nitrate, the chemical used to build the bomb that blew up the Alfred P. Murrah federal building in Oklahoma City in 1995, killing 168 people. According to a document filed in 2012 with the Texas Department of State Health Services, the maximum amount of this “extremely hazardous substance” the plant could store in one container was 90 tons, and the most it could have on site was 270 tons. It is unknown how much was onsite at any given time, or at the time of the explosion.

It was also authorized to handle up to 54,000 pounds of anhydrous ammonia, a substance the Texas environmental agency considers flammable and potentially toxic.

“This type of facility is a minor source of air emissions,” Ramiro Garcia, the head of enforcement and compliance at the Texas Commission on Environmental Quality, told The Associated Press.

“So the inspections are complaint driven. We usually look at more of the major facilities.”

No federal agency determines how close a facility handling potentially dangerous substances can be to population centers, and in many states, including Texas, many of these decisions are left up to local zoning authorities. And in Texas, the state’s minimal approach to zoning puts plants just yards away from schools, houses and other populated areas, as was the case in West.

That plant received a special permit because it was less than 3,000 feet from a school. The damage from the blast destroyed an apartment complex, nursing home and houses in a four-block area.

In the city of Houston, sexually oriented businesses are forbidden to be within 1,500 feet of a school. Say what you want about strip clubs, they are generally not prone to exploding. From a safety perspective, it’s no contest.

It’s pretty simple. We can simply accept that this sort of thing will happen from time to time, and chalk up the death and destruction as one of the costs of our society, or we can decide that’s not acceptable, and be willing to pay some amount of money to mitigate those risks. I’m pretty sure I know which one we’re going to choose – we already have chosen it, we’re just going to reaffirm that choice – I just wanted to be clear about that fact that it is a choice. It doesn’t have to be like this, we want it to be like this.

White Stallion coal plant deep sixed

I mentioned this in passing the other day, but the news that White Stallion has been shelved deserves its own post.

Developers have dropped plans for the White Stallion Energy Center about 90 miles southwest of Houston, signaling the end of a once heady rush to build several new coal-fired power plants across Texas.

White Stallion is the latest abandoned coal-burning project amid record low prices for natural gas and increased environmental scrutiny. The decision announced Friday means that Texans might not see another coal plant built after an 800-megawatt unit near Waco comes online in April.

The demise of the White Stallion project “hopefully represents the last dying gasp of ‘new’ coal plants in Texas proposing to employ technologies from the last century,” said Jim Marston, who leads the energy program for the Environmental Defense Fund.

Texas now has 19 coal plants, but once had plans for more. In 2005, Gov. Rick Perry issued an executive order that put their permits on the fast track, but most approved projects were never built.

The natural gas boom, driven by low prices on natural gas, is the single biggest reason why White Stallion and many other proposed coal plants were scrapped, and the main reason why there are no new coal plants on the horizon after the Waco plant was built. But that wasn’t the only factor – the Environmental Protection Agency did its job, too.

White Stallion had run afoul of new federal limits on emissions of mercury and other toxic pollutants. The project’s developers had asked the U.S. Court of Appeals for the District of Columbia Circuit to review the regulations, but the case is on hold.

The project also faced the EPA’s first-ever limits on emissions of carbon dioxide and other gases linked to global warming from new power plants.

And it did not have the support of many locals.

See here for the last update I had regarding litigation over the EPA’s regulation of greenhouse gases. As State Impact notes, White Stallion was in danger of seeing its state permit expire before getting an answer one way or another from the courts, and that would have meant needing to start over, which wasn’t going to happen. Pulling the plug was their only choice. While this is very good news for clean energy proponents, it’s not all good:

“The only downside of this shift to natural gas is that it has made the challenge for renewable energy to be competitive without subsidies even greater,” Rep. [Mark] Strama says. “Because any time that lower-priced natural gas power electricity displaces coal, for the same reason it tends to displace wind and solar. I think this story highlights again the need for a renewable strategy in Texas.”

To that end, Strama has advocated for state incentives and subsidies for more solar and coastal wind projects, which could help the state during hot summer days when demand for electricity is at its peak. He has filed legislation to that end, and is more hopeful that it stands a chance this legislative session.

“Let me put it this way,” Strama says. “We were really close in 2009 to passing meaningful legislation around renewables. [Then] we didn’t come very close in 2011. But this year feels a little more receptive to having a discussion.”

Some of what needs to be done to promote renewable energy in Texas is regulatory and not legislative, but either way there are things to do. In the meantime, let’s celebrate a win for a cleaner tomorrow. The Environmental Defense Fund has more.

We’ve got mercury, yes we do

Once again, Texas overachieves at something bad.

Martin Lake coal plant

Even though mercury and other hazardous air pollution from U.S. power plants are declining, the progress at the coal-fired power plants are uneven, leaving in place a significant remaining risk to the health of the public and environment, according to a new report by the Environmental Integrity Project (EIP).

Coal-burning power plants release millions of pounds of toxic pollutants into the air every year, including mercury and carcinogens like arsenic and chromium. US EPA’s Toxics Release Inventory (TRI) can be used to identify the largest sources of these dangerous pollutants based on annual reports the electric power industry submits to the Agency under federal Right to Know laws. Mercury is a potent neurotoxin, especially harmful to developing fetuses and young children.

Available online at http://environmentalintegrity.org/news_reports/01_03_2013.php, the new EIP report uses TRI data for 2011 (the most recent full year available) to identify the 10 largest sources of power plant mercury emissions – five of these are in Texas, of which four are owned by Luminant Generation.

[…]

EIP Attorney Ilan Levin said: “Nationwide, equipment has been installed over the years to reduce emissions of sulfur dioxide and particulate matter. That has helped cut down on the release of mercury, toxic metals and acid gases from power plants over the last ten years. However, that progress is uneven, and the dirtiest plants continue to churn out thousands of pounds of toxins that can be hazardous to human health even in small concentrations. For example, emissions of mercury from coal-fired power plants have actually increased in the last decade in the state of Texas.

Levin added, “Emissions from local power plants deposit mercury and other toxic metals in nearby rivers and streams, where these pollutants concentrate in aquatic organisms at levels that can make fish unsafe to eat. The fact that so few plants are responsible for so much of the mercury pollution makes the solution less complicated; the dirtiest sources need to clean up their act.”

You would think, given his deep and abiding love for fetuses, that Rick Perry would be all over this. You would, of course, be wrong. The full report is here; note that not only does Texas have five of the top ten, we have four of the top five. And as the report notes, the news just keeps getting better.

Fortunately, mercury emissions from coal-fired electric power plants have declined over the past decade, from 88,650 pounds in 2001 to 53,140 pounds in 2011. States like Maryland have cut mercury emissions from coal plants at least 80 percent through tough new state standards, while reductions in other states are a byproduct of pollution controls installed to meet other federal standards. For example, scrubbers that reduce sulfur dioxide to comply with acid rain or fine particle standards will also remove mercury. These reductions have not been evenly distributed; for example, mercury emissions from Texas power plants have actually increased since 2001. That matters, because rivers and lakes closest to power plants are the most likely to be the hardest hit by power plant mercury pollution.

The EPA’s long-delayed Mercury and Air Toxics (“MATS”) rule, which gives power plants until February of 2015 to comply, would level the playing field by requiring the industry’s laggards to catch up with companies that have already cleaned up their plants. EPA estimates that the rule will cut annual power plant mercury emissions to just over 13,000 pounds by 2016, about 75 percent below current levels. But the rule is being fiercely challenged by Luminant and other companies seeking to avoid the cost of the pollution controls needed to meet the new standard.

Yes, they are fighting it fiercely. See here, here, and here for some background. After that story about the connection between lead contamination and crime rates, we should all be very, very afraid of anything that dumps large quantities of heavy metals into our air, water, and soil. There is one bit of genuine good news in all of this, and that is that the proposed White Stallion coal plant has been cancelled, and with the boom of natural gas there’s no new coal-burning plants on the horizon. That won’t do anything to help mitigate the effects of the plants we have now, but at least it won’t get any worse.

More on metal recycling

The Chron has a followup story on metal recycling and hexavalent chromium.

Houston air experts plan to deepen their investigation into the air outside metal recycling companies after their measurements showed – apparently for the first time – that the businesses could be a source of potent fumes known to cause cancer.

“We are searching for money for more in depth testing, and also to get a feeling for what good controls would be,” said Loren Raun, an environmental statistician at Rice University, who works with the city of Houston.

[…]

Now the nation’s fourth largest city plans to expand its investigation of communities where the air may be affected. This week the Bureau of Pollution Control and Prevention’s mobile air monitoring lab returns to service following maintenance. On one of its first assignments, it will go to Holmes Road Recycling in the south of the city. Managers there are about to test a new vacuum system that operates while a worker is torching: It pulls smoke through a cyclone system to remove particles.

“In theory, it should make a significant difference in smoke and particles from any facility using the equipment properly,” said Don Richner, an analytical chemist with the Bureau of Pollution Control and Prevention.

If the new device makes a difference, the city could encourage other recyclers to employ it.

Another result of the testing is that Houston officials are questioning whether recyclers are exempt from the requirement to obtain air pollution permits. Businesses that pollute below a certain threshold are allowed to operate under what’s known as “Permit by Rule,” in which they state emissions are low. Pollution bureau chief Arturo Blanco said authorities will ask for proof.

Rice University’s Raun says researchers hope to return to the plants to test at a distance of one or two blocks. “We want to get a feel for what people farther out in the neighborhood are exposed to,” she said.

This would address a question raised by scientists that hexavalent chromium converts quickly to a less dangerous form of the metal. The city is collaborating with community groups, the University of Texas and Rice University in an application for a federal grant to pursue that research.

Background here. This sure seems like the sort of thing for which grant money ought to be granted. It’s groundbreaking research, and it could affect the way the EPA calculates the risks of air pollution. I look forward to seeing what their further tests find out.

Recycling pollution

This is unfortunate.

The calls to the city of Houston’s 311 help line came in the early morning and the middle of the night – complaints of red smoke, yellow smoke, explosions, fire, a child having trouble breathing.

Reports like these – 189 of them over the last five years – led Houston air authorities to discover a previously unrecognized and dangerous source of air pollution: metal recyclers and car crushers, according to interviews and documents obtained by the Houston Chronicle.

The smoke comes from cutting metal with torches and from fire when vehicle gas tanks aren’t drained properly. Explosions can occur when propane tanks are fed into the maw of the crushers.

Descriptions of shattering noise, cracked walls and smoke were significant enough that the city had to “dedicate a good amount of effort responding to these complaints,” said Arturo Blanco, chief of the city’s Bureau of Pollution Control and Prevention.

Subsequent testing outside five Houston metal recycling operations found dangerous levels of hexavalent chromium. Chrome VI, as it’s also called, is a high priority for air experts.

“People were complaining about smoke, and it turns out there were carcinogenic metals,” said Loren Roan, an environmental statistician at Rice University. “And we found them only around these facilities, not in other areas we tested, not even in other industrial areas of the city.”

When inhaled, hexa­valent chromium is deposited in the lungs, can penetrate cells and cause free radicals, which damage DNA, ultimately causing lung cancer. When California gained the authority to regulate air pollution hazards in the 1980s, hexavalent chromium shared top priority, along with benzene. The state considers Chrome VI one of the most potent carcinogens known.

[…]

Houston appears to be the first to examine metal emissions from the industry, and in so doing may have flagged a national problem. The Environmental Protection Agency does not regulate the facilities, though there are now 6,000 of them in the United States, according to Joe Picard, chief economist with the Institute of Scrap Recycling Industries Inc.

You can see a map of metal recycling locations here – the east side is particularly full of them, with the stretch of 59 between I-10 and the North Loop being a hot spot. Clearly, this is something that is going to require action. I’m certain there are plenty of opportunities to do this in a way that creates less hazardous by-product, but such innovation is unlikely to come without external pressure, which is to say government regulation. If that makes metal recycling more expensive, then so be it. We’ll figure out how to adjust. Recycling is necessary, but so is not creating hazardous emissions. We have to be able to do both.

Soot

We have it. What are we going to do about it?

Ship Channel crica 1973

Harris County, long known for smog, will need to clamp down on another harmful type of air pollution for the first time under new rules imposed by federal regulators Friday.

The Environmental Protection Agency set a stricter standard for tiny particulate matter, or soot, a move that will force additional cleanup from the county, which already is out of compliance for ozone, or smog.

Harris County is the only place in Texas with soot levels in violation of the new nationwide standard. As a result, it will become harder for some industries to expand operations and could require cleaner operations along the Houston Ship Channel.

“This is the best holiday gift EPA could give breathers – the gift of cleaner air and better health,” declared Frank O’Donnell, who heads the Washington, D.C.-based advocacy group Clean Air Watch.

[…]

“The air did not get worse in Harris County,” said Howard Feldman, director of regulatory and scientific affairs for the American Petroleum Institute. “It is getting better, but the rules will impose new controls and costs on Harris County.”

EPA Administrator Lisa Jackson, however, said Harris County and others should meet the limit over the next decade without pollution controls beyond those existing and proposed federal rules require.

The agency estimates that complying with the new standard would cost industry nationwide between $53 million and $350 million a year by 2020. By then, all but seven U.S. counties, all of them in California, should be within the soot limit, according to the FDA’s models.

Meanwhile, the new standard should help prevent tens of thousands of premature deaths, the agency estimates.

“These standards are fulfilling the promise of the Clean Air Act,” Jackson said. “We will save lives and reduce the burden of illness in our communities, and families across the country will benefit from the simple fact of being able to breathe cleaner air.”

As with all things relating to the environment and enforcement, this has been a long time coming. You have to think that if the new, more stringent standard had been put in place back in 1997, when the weaker standard that was later thrown out by the federal courts for not being sufficient to protect the environment, industry would have long since come into compliance and we’d have had 15 years of cleaner air. We’d have also saved a ton of money in healthcare costs as well as millions of lives, two facts that never seem to get mentioned in this debate as prominently as “states rights” or whatever the justification is for those that want to continue polluting at the same levels as before. Funny how that works. The Environmental Defense Fund has more.

EDF report on school buses

From the Environmental Defense Fund:

Environmental Defense Fund (EDF) [Monday] released a report titled “Review of Texas’ Clean School Bus Programs: How Far Have We Come and What Is Still Left to Do?” This report evaluates each of the clean school bus programs in Texas, reviews accomplishments, and offers suggestions for improvement.

Diesel engines power most of the estimated 480,000 school buses in the United States, and the World Health Organization recently classified diesel exhaust as a known carcinogen, specifically noting a causal link between exposure to diesel exhaust and lung cancer. One of the most dangerous components of diesel exhaust is particulate matter (PM). The Environmental Protection Agency (EPA) is particularly concerned with these smallest-sized particles, because they are known to aggravate asthma, cause lung inflammation, lead to heart problems, and increase the risk of cancer and premature death.

Texas children riding to school in buses built before 2007 may be breathing air inside the cabin of the bus that contains 5-10 times higher the amount of diesel pollution than found outside the bus. These older bus engines spew nearly 40 toxic substances and smog-forming emissions. Children, who breathe in more air per pound of body weight than adults, are therefore exposed to even higher health risks because their lungs are still developing.

As of the 2010-2011 school year, the Texas Education Agency reported that nearly two-thirds of current school buses were over six years old, emitting at least 10 times as much PM as older buses, and much more in many cases because a large proportion of the fleet is even older. More than 700,000 children are impacted, meaning that nearly half of the students relying on school buses for transportation in Texas still ride dirty buses.

[…]

There are two current programs available to help retrofit or replace the remaining 17,000 dirty schools buses in Texas. Under the Texas Clean School Bus Program, The Texas Commission on Environmental Quality (TCEQ) is accepting applications for grants through November 30. This is a comprehensive program designed to reduce diesel exhaust emissions through school bus retrofits. All public school districts and charter schools in Texas are eligible to apply for this grant. Private schools are not eligible for funding. Public school districts that lease buses are also eligible.

EPA also launched a new rebate funding opportunity for school bus replacements under the Diesel Emissions Reduction Act. Applications will be accepted from Nov. 13 to Dec. 14. The first round of rebates will be offered as part of a pilot program and will focus on the replacement of older school buses in both public and private fleets. If the pilot proves successful, EPA will look at rebates for other fleet types and technologies.

The report is here, along with supplemental information. The deadline for the TCEQ grants has been extended to December 14. I had no idea any of this existed, so it’s good to know and good to see that we’re making progress. Many buses can be effectively retrofitted, but some will need to be replaced. Perhaps this will be an opening in the state for the electric school bus industry. In any event, check with your school or your local school board to see what’s being done for your kids.

CSAPR knocked down by federal court

Score one for the polluters.

Greg Abbott approves of this picture

The U.S. Court of Appeals for the District of Columbia Circuit ruled in a 2-1 decision that the Environmental Protection Agency overstepped its authority with the new regulation.

Led by Texas, 14 states and several power companies challenged the legality of the Cross-State Air Pollution Rule, which imposes caps on nitrogen oxide and sulfur dioxide from coal-fired power plants in eastern states. Texas officials fear some utilities will shutter plants to comply with the rule, threatening the state’s ability to “keep the lights on.”

The EPA has said the rule is necessary to reduce lung-damaging pollution that causes thousands of premature deaths and respiratory illnesses each year around the power plants and in downwind states.

“This is clearly a big blow for breathers in downwind states,” said Frank O’Donnell, who heads the advocacy group Clean Air Watch. “The good neighbor rule is a critical component in the EPA’s strategy to ensure healthful air quality.”

See here and here for some background. The Environmental Defense Fund has a press release and anlysis of the ruling, which you can read here. Unlike the flex permits ruling, this one is a genuine setback, though though it should be noted that the court didn’t say the EPA had no authority, just that it needed to write the rules differently. While the usual pollution-enabling gang celebrates, the former head of the EPA in Texas notes that the industries who helped fight this may come to regret it.

Al Armendariz, who was the regional administrator of the EPA when the cross-state rule was finalized and now works as a senior representative from the Sierra Club’s Beyond Coal campaign in Texas, said:

“The ruling, I think, only delays the inevitable, which is that there is going to be a transport rule that requires utilities to significantly reduce their emissions. And ironically, the judgment is critical of steps the agency took which were designed to make the rule cost-effective. And if anything, the judgment could result in EPA putting a rule forward about a year from now that requires utilities to spend more to reduce emissions than if the cross-state rule had gone into effect. So the delay is unfortunate, but ironically, I think the court’s criticism of some of the steps the [EPA] took to try to make the rule cost-effective might result in the agency moving forward with a rule that costs more to comply than the cross-state rule would have.”

Of course, that assumes an EPA that’s not been taken over by industry hacks by that time. We’re all clear on what needs to be done to prevent that, right? Texas Vox has more.

Count tells EPA to review flex permits

Score one for Texas.

The 5th U.S. Circuit Court of Appeals ruled Monday that the Environmental Protection Agency’s disapproval of Texas’ Flexible Permits program was not supported by the Clean Air Act.

Under the Flexible Permits program, which had been in place since 1994, the Texas Commission on Environmental Quality put a cap on allowed emissions from oil refineries and other industrial plants by facility. EPA officials announced in 2010 that they disapproved of the program because it might allow major polluters to exceed federal standards, record-keeping was inadequate and the methodology for calculating the emissions cap was unclear. As a result, those flexible permits were no longer accepted under the Clean Air Act. The facilities that already possessed flexible permits were subject to federal fines.

In the opinion, the court called the EPA’s disapproval of Texas’ program “untimely” and said it “unraveled approximately 140 permits” issued under the program. The court said the EPA’s reasoning was mainly based on wording, and not actual standards or procedures.

“A state’s ‘broad responsibility regarding the means’ to achieve better air quality would be hollow indeed if the state were not even responsible for its own sentence structure,” the court says in the opinion.

The opinion says the EPA must further consider the program.

Court opinion on matters pertaining to the EPA had been running against the state recently, so I’m sure they’re celebrating in the AG’s office. It’s not a huge win for the state, however:

Elena Craft at the Environmental Defense fund pointed out that the court’s decision does not rubber stamp Texas’ Flexible Permits program, but rather deems the EPA’s reasons for disapproving the program inadequate. The program still needs approval from the EPA to exist.

“The reality is that there’s no real change of the situation on the ground,” Craft said. “These [permits] are still not approved by the EPA, so they’re still susceptible to government enforcement until approved.”

The flex permits may yet be denied, but not until further review and not on the grounds cited so far. This story isn’t finished yet.

Guess who likes the Obamacare ruling now?

The state of Texas, that’s who. But not for any positive reason, of course.

It's constitutional - deal with it

The high court decision limited the power of Congress to force states to take certain actions by threatening to withhold federal money – in the Affordable Care Act case, existing Medicaid funds. Chief Justice John Roberts called the threat “a gun to the head” of states.

Now, Texas attorneys claim the Environmental Protection Agency has acted in a similar fashion by threatening states without plans to control emissions of gases linked to global warming with construction bans on power plants, refineries and other large industrial facilities.

The EPA’s threat of “a construction moratorium is no less ‘a gun to the head’ than Congress’s threat to terminate Medicaid funding,” Mark DeLaquil, an attorney at the firm Baker Hostetler, which represents Texas, wrote in a letter to the U.S. Court of Appeals for the District of Columbia Circuit.

[…]

While legal scholars say the Supreme Court decision was sure to invite challenges of federal laws thought to be overly coercive of the states, there is skepticism over Texas’ claim.

Victor Flatt, professor of environmental law at the University of North Carolina, said the health care overhaul and the EPA’s actions are hardly the same thing because one is legislative and the other is administrative.

The agency always has the right to implement the federal Clean Air Act as long as it’s not “arbitrary and capricious,” he said.

Also, Flatt said the case could not be considered coercive because every other state was able to put together a permitting regime for emissions of greenhouse gases.

Tracy Hester, who leads the environmental program at the University of Houston Law Center, said he also expects the appeals court to reject claims of coercion.

“It doesn’t seem like a slam dunk,” Hester said.

That won’t stop Rick Perry and Greg Abbott from turning over every stone in their quest to offer aid and comfort to pollution producers. It’s what they do. Brad Plumer saw this coming.

“You could definitely imagine a governor pushing back against the EPA over sanctions,” says Ann Carlson, a professor of environmental law at the University of California Los Angeles. On the other hand, she notes, states might not have standing to sue unless they’re actually hit by highway sanctions—something that happens rarely.

It’s also not clear whether the Supreme Court would even agree that the Clean Air Act is structurally similar to Medicaid. ”There are definitely ways to distinguish the health care facts from the Clean Air facts,” says Carlson.

For one thing, federal Medicaid funds makes up a much, much bigger portion of state budgets than federal highway money does. (Last year, the government spent $275 billion on Medicaid versus $40 billion on highways.) What’s more, federal Medicaid funds are an entitlement program written into law—states have a reasonable expectation that they should receive the money each year as long as they’re following the rules. By contrast, federal highway funding needs to get renewed constantly by Congress. It’s less predictable. So states will have a harder time arguing that the federal government is pulling an unfair bait-and-switch by imposing new requirements. UCLA’s Jonathan Zasloff has more on why this distinction could matter, legally, here.

Ultimately, however, the actual legal arguments may be a side issue. If there are five justices who agree that the Clean Air Act is unduly coercive, then that might be enough. “Bottom line: if the Supremes want to injure the Clean Air Act, they will injure the Clean Air Act,” Zasloff writes by e-mail. “Law doesn’t really matter at this point.”

Carlson agrees that it would ultimately come down to votes. “The caveat here is that the health care decision is a brand-new ruling,” she says, “and we still have no idea how far the Supreme Court is willing to go.”

Sure is a good thing we don’t have any of those “activist” judges on the Supreme Court, isn’t it?

That other big lawsuit

In case you missed it, there was another big ruling last week that will have a profound effect on Texas.

Ship Channel crica 1973

A federal appeals court Tuesday upheld a finding by the Environmental Protection Agency that greenhouse gases pose a public health threat and require potentially costly limits from vehicles, power plants and other industrial sources.

In an unanimous decision, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the federal agency is “unambiguously correct” in its use of the Clean Air Act to regulate carbon dioxide and other gases linked to global warming as pollutants – a stinging rebuke to industry and 14 states, led by Texas, that had sued to block the landmark rules.

Such rules could have a profound impact on Texas, which emits more carbon dioxide and other heat-trapping gases than any other state.

“This is a pretty resounding victory from EPA’s perspective,” said Tracy Hester, who leads the energy, environment and natural resources program at the University of Houston Law Center. “The sweep and breadth of this decision will make it hard for the states to pick it back up.”

As was the case with the Affordable Care Act, the Republicans in Texas bet big on winning in court, and as was the case with the Affordable Care Act they lost. In this case they still have hope for something more favorable from SCOTUS, but not this term, and they’ll be up against a unanimous appellate ruling. If the state had done a better job taking care of business this might not be such a big deal, but we all know how that has gone. The Environmental Defense Fund has more.