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Cross-State Air Pollution Rule

More rules against polluting your neighbors proposed


The Environmental Protection Agency proposed tougher new limits on Tuesday on smokestack emissions from Texas and 22 other states that burden downwind areas with air pollution from power plants they can’t control.

At the same time, the EPA moved to remove two states — South Carolina and Florida — from the “good neighbor” rules, saying they don’t contribute significant amounts of smog to other states.


The EPA’s proposal on downwind pollution follows a federal appeals court ruling this summer that upheld the agency’s right to impose the clean-air standards, which block states from adding to air pollution in other localities. Some states and industry groups had argued that the rule was overly burdensome.

The rule applies mostly to states in the South and Midwest that contribute to soot and smog along the East Coast.

Under the EPA’s proposal, states would have to comply with air quality standards for ozone, or smog, set by the George W. Bush administration in 2008. Current rules are based on pollution standards developed in the late 1990s.

“This update will help protect the health and lives of millions of Americans by reducing exposure to ozone pollution, which is linked to serious public health effects including reduced lung function, asthma … and early death from respiratory and cardiovascular causes,” EPA Administrator Gina McCarthy said in a statement.

The proposal reinforces the obligations states have to address air pollution that is carried across state lines, McCarthy said.

See here for the background. The ruling in question struck down some earlier regulations, but affirmed the EPA’s authority to set regulations on this. I won’t be surprised if there’s another lawsuit over these rules, but one way or another in the end there will be new rules.

Split decision on cross-state air pollution rule

Not too bad, actually.

Texas’ Republican leaders and environmentalists are both claiming victory Tuesday following an appeals court ruling that requires the federal government to ease limits on certain emissions for Texas and a dozen other states.

The U.S. Court of Appeals for the D.C. Circuit on Tuesday ordered the Environmental Protection Agency to revisit caps on nitrogen oxide and sulfur dioxide emissions — set in an effort to limit the effects of air pollution across state boundaries. But the court also upheld the agency’s right to enforce such a regulation.

Texas was among 13 states, joined by industry and labor groups, that sued over the so-called Cross-State Air Pollution rule in 2011, challenging the EPA’s framework and complaining states weren’t given enough time to comply.

The regulation requires Texas and other “upwind” states in the South, Midwest and Appalachia to cut certain emissions that contribute to air pollution in East Coast states like New York.

In a 6-2 decision last year, the U.S. Supreme Court largely upheld the rule in a major win for the Obama administration. But the justices told the lower courts to resolve lingering questions about how to implement it.

Tuesday’s ruling addressed those issues, with the court noting “the petitions for review are therefore granted in part and denied in part.” It opted to leave the current emissions rules in place as the EPA revises them.

See here for the background. The DC Court had previously ruled against the CSAPR, but SCOTUS overruled them. The EDF explains what this ruling means.

The D.C. Circuit Court decision recognizes that, when the Supreme Court upheld the Cross-State Air Pollution Rule in April of 2014, it affirmed EPA’s fundamental methodology for implementing the “good neighbor” protections of the Clean Air Act. Today the D.C. Circuit Court granted claims by Texas and other states challenging particular emissions budgets while firmly rejecting associated requests to vacate the state-based emissions protections and rejecting several additional fundamental legal claims.

The court directed EPA to carry out additional analyses on remand, stating, “We remand without vacatur to EPA for it to reconsider those emissions budgets. We reject all of petitioners’ other challenges to the Transport Rule, including all of their facial challenges to the Rule. (Decision, page 36, emphasis added)

The rule’s life-saving pollution reductions remain in full effect.

So that’s pretty good. I trust the revised rules the EPA comes up with will also be pretty good. Tough luck, polluters.

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

From Texas Clean Air Matters:


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.


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.

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.

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.

Texas continues its fight against clean air

The state of Texas was back in court last week, arguing for its right to pollute other states’ air.

This is what the Ship Channel looked like in 1973

The latest round in the state’s fight with the Environmental Protection Agency will be heard by the U.S. Court of Appeals for the District of Columbia, often considered the nation’s most influential after the Supreme Court.

In the case, industry groups and 14 states, led by Texas, are challenging 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, for one, fears some utilities will shutter plants to comply with the rule, threatening the state’s ability to “keep the lights on.”

The EPA says 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 a classic instance of why air pollution cleanup cannot be left solely to the states,” said Frank O’Donnell, head of the environmental group Clean Air Watch.

The oral arguments come nearly four months after a three-judge panel put the rule on hold while the federal appeals court considers its legality.

See here and here for some background. The hearing was Friday, and the only story I could find afterward was this.

In arguments before the U.S. Court of Appeals in Washington, D.C., Friday, a coalition of states, including New York, urged the court to uphold the federal Environmental Protection Agency’s Cross-State Air Pollution Rule that will limit the interstate transport of air pollution that harms New Yorkers’ environment and health. The rule prohibits emissions in one state from significantly contributing to a downwind state’s inability to meet federal air quality standards established to protect public health for two harmful pollutants: fine particulate matter, also known as PM2.5 and ozone. In addition to New York, the state coalition supporting the rule includes Connecticut, Delaware, Illinois, Massachusetts, Maryland, North Carolina, Rhode Island and Vermont. The states are joined by New York City, Philadelphia, Chicago, the District of Columbia, Baltimore, and Bridgeport, CT.

By 2014, the rule is expected to reduce emissions that contribute to smog, asthma and acid rain by millions of tons per year, resulting in up to 2,000 fewer premature deaths each year in New York alone.

“For too long, New York and other states have been harmed by upwind smokestack pollution. It is critical that strong rules protecting the air we breathe are both upheld and enforced,” said Attorney General Eric Schneiderman. “The transport of this kind of air pollution into our state makes it exceedingly difficult for New York to meet federal air quality standards intended to protect public health, resulting in undue hardship for people suffering from asthma and other health conditions. My office stands ready and willing to fight for our ability to maintain healthy air with the reasonable assurance that our efforts won’t be undercut by out-of-state polluters.”

Wouldn’t it be nice to have an Attorney General like that? Some day, I hope. Anyway, it’ll probably be a few months before we get a ruling on this, then whatever gets decided will be appealed to the Supreme Court, which means it’ll likely be at least 2013 before we have an answer. Try not to breathe any more than necessary until then.

CSAPR stayed

This is what the Ship Channel looked like in 1973 (Source: National Archives and Records Administration)

There was some bad news at the end of the year.

A federal court ordered [last] Friday that the Environmental Protection Agency’s controversial cross-state air pollution rule be stayed — to the delight of Texas officials and the chagrin of environmentalists.

The rule, which sought to reduce sulfur dioxide and nitrogen oxide emissions from power plants in Texas and 26 other states, had been scheduled to take effect in January. Now it will await a ruling by the court on its legal merits.


Luminant, a Texas power-generation giant, said that it would no longer shutter two units at its Monticello coal plant in Northeast Texas. Luminant “intends to continue closely evaluating business and operational decisions given that this stay does not invalidate the rule, but delays a decision on its implementation until a final court ruling is issued,” the company’s statement said.

Environmentalists, who have been trying to shutter Monticello for years, are disappointed with the decision.

In a blog post, the clean-air group Downwinders at Risk wrote:

“If the rules get pushed back past the beginning of ozone season, it means all those dirty Luminant plants upwind of [Dallas Fort-Worth] in East and Central Texas will still be contributing a significant amount of smog pollution to the Metromess a year after our worst ozone summer in five years spotlighted state ineptitude in getting cleaner air.”

Needless to say, Rick Perry and Greg Abbott cheered this on and vowed to continue the fight to let polluters do whatever they want. The point of this rule is the very simple recognition that air pollution created in one state can and does travel to other states. Having grown up across the river from New Jersey’s manufacturing plants – you know, all that stuff Tony Soprano drives past on the Turnpike – I can personally attest to this. For that matter, we’ve seen this movie before right here in Texas, with the Midlothian cement plants and their deleterious effect on the air quality in neighboring Dallas and Tarrant Counties. You’d think it would be self-evident that those who create the problems would be held accountable for the cost they impose on others – this is the sort of concept we generally teach our children, after all – but not to Rick Perry and Greg Abbott. Perhaps someone should remind them what America looked like before the EPA came into existence. That’s where they’d like to take us again, and that’s why this is a big deal.

I emailed Jennifer Powis, who is running the Beyond Coal campaign here in Houston, for a reaction to this story. This is her reply:

It was very unfortunate and puts at risk air that millions of people breath. Texas has some of the worst air in the nation (I’ve attached a fact sheet above for you), and most of that pollution is generated by the 2,000 industrial facilities in our state. But at the same time, air pollution doesn’t stop at a state line and much of Eastern Texas is impacted by industrial emissions from Louisiana. Without a cohesive plan that forces states to be a “good neighbor,” we’ll continue to have problems with cleaning up the air we all breath.

There’s no doubt Texas has major air pollution problems and much of the blame lies with Governor Perry’s appointees over at the Texas Commission for Environmental Quality. But at the same time, this rule would have helped our state tremendously because it would have leveled the playing field for most of the Eastern states.

But don’t worry, this rule will eventually prevail. States across the nation need it in order to comply with basic clean air act provisions. Folks do a lot locally, but you also have to help out your neighbor. We’re one nation, and the clean air act recognizes that important fact.

The aformentioned fact sheet can be seen here. When you take that next deep breath of sweet chemical emissions from Louisiana, you know who to thank for it.

Luminant and the CSAPR

I have not followed the dustup between energy producer Luminant and the EPA very closely. What I know is that like most other disputes between those who want cleaner air here in Texas and those who don’t is that someone in the latter group is complaining about a new federal regulation that will force them to clean up their act a bit. (It’s always a federal regulation, because our state never makes them do anything it doesn’t have to make them do.) Fuelfix summarized the situation last month:

Texas’ largest energy producer, Dallas-based Luminant, has launched an online campaign against a new federal rule that the company says will force the closing of units at one of its coal-fired power plants and three nearby mines.

Luminant’s new website,, takes aim at the Cross-State Air Pollution Rule, which requires aging power plants in 27 states to install modern pollution controls to sharply cut emissions of sulfur dioxide and nitrogen oxide by Jan. 1. The company filed a federal lawsuit Monday against the Environmental Protection Agency to block the rule, saying the deadline is impossible to meet.

The EPA, to its credit, pushed back aggressively against Luminant’s allegations, which you can see in that post. I still wanted to know more, so I turned to Jennifer Powis of the Sierra Club and asked her to write something for me about this that I could run here. This is what she sent me:

Texas Can Do Better

Let’s start focusing on the road ahead instead of the road behind

Every time a new environmental rule comes down, industry proclaims the sky is falling, and that compliance will be too expensive. Yet, all of our major environmental standards—the Clean Air Act, the Clean Water Act, the Endangered Species Act to name a few—are roughly over 30 years old and all the while, the United States has seen clear economic growth and a cleaner, safer, healthier environment for workers and citizens alike.

The Cross State Air Pollution Rule (CSAPR, pronounced “Casper” even though the acronym is missing a few letters) is no different but here, only Luminant, Texas’s largest power provider, is crying and carrying on as if one rule would be decisive for any regulated business. In truth, as Tom Sanzillo’s recent op-ed in the Houston Chronicle pointed out, poor financial choices, made worse by lower natural gas prices, and rising competition from renewables, made business tough for Luminant long before any new air quality rule was finalized.

CSAPR closes loopholes, allowing coal plants to meet similar air quality standards as other regulated industries

The Rule affects 27 states and creates a cap and trade system for pollutants primarily responsible for the formation of ozone. Ozone, as every Houstonian has dealt with and knows, is smog and has been scientifically linked to premature death, lung damage, and aggravation of asthma or other respiratory conditions. But because the rule is a cap and trade system, any polluting entity can continue to pollute at the same levels as it does today, as long as that same entity purchases pollution allowances on the open market. It’s a sort of pay to play, recognizing that a business can be in the driver’s seat, determining how best to improve air quality within its own fleet. For this rule, every power provider in the state has known something like this was coming since 2005, when then-President George Bush’s administration promulgated a similar transport rule across state borders.

Why should Houston care?

Nearly 500 industrial plants in the Houston/Galveston/Brazoria area, 120 in the Beaumont/Port Arthur area, and 342 in the Dallas/Ft. Worth area have had to install and operate air pollution control systems because those areas fail to meet basic public health safety limits for pollution – the areas are all in non-attainment. But Luminant has saved hundreds of millions of dollars by not installing air pollution controls compared to the more than 900 other industrial plants that have done their part in cleaning up dirty smoke stacks and attempting to clean up Texas’s awful air quality.

Realize the three old Luminant coal plants (Big Brown, Monticello, and Martin Lake) are the top 3 industrial polluters in Texas among nearly 2,000 industrial plants. They are exceptionally dirty plants:1

Combined they emit 25.5% of state industrial air pollution
Combined they emit 33.8% of state industrial SO2 air pollution
Combined they emit 11.4% of state industrial PM10 air pollution
Combined they emit 10% of state industrial NOx air pollution
Combined they emit 37.6% of state industrial CO air pollution

Comparing Luminant’s big dirty three coal plants only to other coal plants, however, shows an even more harrowing tale. Luminant’s Big Brown, Monticello, and Martin Lake are:

46.8% of all Texas coal plant emissions (19 existing coal plants)
41.5% of all Texas coal plant SO2 emissions
36.0% of all Texas coal plant PM10 emissions
30.6% of all Texas coal plant NOx emissions
71.7% of all Texas coal plant CO emissions

You can see why only Luminant has reached far and wide into the media, into state government, and into the courts in an effort to stop a rule that will drastically improve the lives of every day Texans.

It’s Time To Move Beyond Coal

Mayor Parker and Houston industry should fight to defend this rule and level the playing field. But unfortunately, while this rule will create real and substantive improvements in air quality — eliminating multiple non-attainment regions across the country — the Houston/Galveston/Brazoria non-attainment region will still have major air quality concerns after this rule is implemented. (See page 30 and 31.) And in truth, so will Texas.

But the path forward is a go local argument for the state. Texas leads the nation in wind production, has huge untapped solar and geothermal resources, and generally has the most underutilized natural gas capacity of any state in the nation. Instead of capitalizing on this potential, all of the state’s power is focused on overturning this rule. Unfortunately, what scores points in party circles doesn’t often make good policy.

Jen Powis is the state lead for the Sierra Club’s Beyond Coal campaign working to transition Texas’s electric system to cleaner alternatives. The campaign is currently working to stop the construction of seven proposed coal plants, and retire older facilities in order to make room for cleaner and greener systems.

1 All data is compiled from the self-reported emissions inventory in 2009 and maintained by the Texas Commission on Environmental Quality (TCEQ).

My sincere thanks to Jen Powis for writing that. The one thing I will add is that if you read that Tom Sanzillo op-ed, it references a report he wrote for the Sierra Club regarding Luminant’s finances. A little Googling led me to that here. It’s a bit technical for me, but the basic gist of it is that Luminant is way overleveraged; the op-ed summarizes it succinctly. The bottom line is that you should keep all this in mind when the pollution apologists complain about what that bad ol’ federal guvmint is making them do now.