Congress has failed to adopt any program to regulate greenhouse gas emissions. However, the Supreme Court ruled in 2007 that the Environmental Protection Agency had the authority to regulate greenhouse gases under the Clean Air Act. So now the EPA is ordering the states to devise regulations that comply with the EPA's new greenhouse gas emissions limits. If a state fails to do so, the agency will impose a Federal Implementation Plan on the state and issue emissions permits itself. In addition, the EPA decided to regulate only facilities that emit 75,000 tons of greenhouse emissions per year.
Now the Texas attorney general and the head of the state's Commission on Environmental Quality are telling the EPA to back off [pdf]. Among other things, Texas officials assert that the EPA's January 2, 2011 deadline for enacting regulations that conform to the EPA's plans is a hustle that violates its own rulemaking provisions that allow much more time for deliberation. In addition, the Texas officials are arguing that the EPA is further violating the Clean Air Act which requires the agency to regulate facilities that emit more 100 to 250 tons of specified pollutants, not just those that exceed a threshold of 75,000 tons. In this case, Texas is calling the EPA's Clean Air Act bluff because at 100 to 250 tons per year, the agency would have to regulate more than 6 million facilities instead of fewer than 1,000.
If Texas prevails in the federal courts, that would mean that the U.S. would have no federal program regulating greenhouse gas emissions.