(This blog by David Doniger, policy director of the Natural Resources Defense Council’s (NRDC) Climate Center, and chief global warming lawyer for the NRDC, was first posted Nov. 4, 2010 at the NRDC’s Switchboard website. Doniger previously served as director of climate change policy at the U.S. Environmental Protection Agency during the Clinton Administration.)
Texas, together with a slew of industry associations and right-wing groups, has brought a blizzard of lawsuits to block the Environmental Protection Agency’s initial steps to reduce the dangerous pollution that is driving global warming.
The lawsuits, I’ve observed, mainly serve as fashion accessories to dress up the big polluters’ lobbying campaign to attack the Clean Air Act and keep EPA from doing its job – a campaign we can expect to continue in the next Congress. But as fashion accessories, the lawsuits have a “see-thru” problem.
You see, you can say anything you want in a two-page lobbying letter to Congress. Especially these days, when lobbying takes place in a fact-free zone.
But when you go to court, you have to prove your case. And Texas can’t.
With dire – but false – warnings of an impending “construction moratorium,” Texas and its industry allies are asking the federal court of appeals in Washington to issue a “stay” (effectively, an injunction) to stop everything EPA has done under the Clean Air Act, from the science-based endangerment finding, to the landmark vehicle emission standards, to the first steps to hold the largest new power plants and industrial facilities accountable for their carbon pollution.
Here’s the biggest problem with Texas’s case: Texas is the only state that isn’t ready. The other 49 states are ready to go. They are all ready, by themselves or in cooperation with EPA, to start requiring the largest new or expanded power plants and industrial facilities to use the best available and affordable carbon pollution controls, when that requirement kicks in next January.
Just as they have for decades for other pollutants, new power plants and other very large industrial sources will have to get a permit that includes carbon pollution limits. The carbon pollution limit will have to reflect use of the “best available control technology” – a determination customized for each plant based on its own circumstances, “taking into account energy, environmental, and economic impacts and other costs.”
In its court papers Texas claims that next January many states will be legally unprepared to carry out this program, leading to a de facto construction ban in some states and a flood of permit applications from small sources in others.
But none of this will happen. Except for Texas, every other state is taking action on its own or in cooperation with EPA to ensure that: (1) every source that needs a permit will be able to get it from either state or federal authorities, and (2) every source that does not need a permit will be able to proceed without one.
According to the National Association of Clean Air Agencies, “every state but one is poised to ensure that sources can obtain preconstruction permits under the Clean Air Act come January 2, 2011.” Necessary permits will be available either (1) from a state acting under its own regulations, (2) from a state acting under federal regulations, or (3) from EPA acting under federal regulations.
True to its motto, Texas is the lone state that is both refusing to change its own regulations and resisting all of EPA’s backstop options to assure that newly-constructed sources can get the help they need in the interim. The state’s attorney general claims “Texas has neither the authority nor the intention of interpreting, ignoring, or amending its laws in order to compel the permitting of greenhouse gas emissions.”
But Texas is unwilling, not unable, to meet the greenhouse gas requirements. Texas law already authorizes the state to “control air contaminants as necessary to protect against adverse effects related to . . . climatic changes, including global warming.” Texas also has the option of letting EPA issue permits for greenhouse gases while the state continues to handle other pollutants. But unlike other states, Texas is steadfastly refusing that option as well.
This is a big problem for Texas’s “stay” request: when you go to court, you cannot ask for relief from self-inflicted wounds.
If the other states can do it, why not Texas?
And where does this leave the industry challengers? Their own “construction ban” story falls apart as well – at least everywhere but in Texas. The fact is that any large project needing a “best available control technology” permit for carbon pollution will find it available from the states or from EPA. No one will be left in the cold.
Except maybe in Texas, but that’s a decision the elected leaders of Texas will have to make.