Texas Attorney General Greg Abbott filed a legal challenge yesterday to the U.S. Environmental Protection Agency’s decision to disapprove the state’s qualified facilities program. The state’s petition for reconsideration was filed with the U.S. Court of Appeals for the Fifth Circuit in New Orleans. The press release from the AG office states:
In 1995, the Texas Legislature passed a law that was intended to streamline a time-consuming regulatory process by allowing certain qualifying facilities to implement physical and operational changes to their sites without having to undergo additional regulatory processes – provided the facilities’ changes neither increase emissions nor result in the release of new contaminants.
The Texas Commission on Environmental Quality (TCEQ) complied with the 1995 law by submitting revised qualified facilities rules to the EPA in 1996. Although the TCEQ has been regulating qualified facilities without interference from the federal government since the first term of the Clinton administration, the EPA rejected the rules and disapproved the Texas program on March 31, 2010.
Under the Clean Air Act, the EPA was required to act on these rules within one year. Yet the federal government waited more than a decade – three presidential administrations – to take action on and ultimately reject the TCEQ’s qualified facilities rules. Despite the fact that more than a dozen years passed since the rules were first submitted, the TCEQ attempted to work with the Obama administration and resolve the new EPA administrator’s objections. On March 30, 2010, the commission promulgated draft rules that amended the qualified facilities program in an effort to resolve the federal agency’s concerns. However, just one day after the state’s new proposed rules were published, the EPA summarily disapproved the Texas program.
By rejecting Texas’ qualified facilities program, the EPA has unilaterally declared that program is not in compliance with federal law. The EPA’s decision not only imposes significant uncertainty on entities that employ thousands of Texans, but it threatens the livelihood of their employees – who depend upon those facilities for their jobs. According to the Texas Governor’s Office, recent decisions by the EPA to extend federal control over the state threaten tens of thousands of Texas jobs.
The EPA’s decision also threatens a regulatory program that has successfully reduced harmful emissions in the state of Texas. Emissions data cited by the governor’s office indicates that the Texas clean air program achieved a 22 percent reduction in ozone and a 46 percent reduction in NOx, which outpaces the eight percent and 27 percent reductions that were recorded nationally.
The EPA opted to disapprove the state’s qualified facilities program and impose the federal government’s judgment on the state despite Section 101 of the Clean Air Act, which provides that air pollution prevention “is the primary responsibility of the States and local governments.” Section 110 of the Act provides a similar admonishment to respect the states’ authority, stipulating that “[e]ach State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State.” The Texas Attorney General’s Office filed legal action against the EPA on behalf of TCEQ in an effort to defend the state’s legal rights and challenge improper overreach by the federal government.
