EPA: Don't Mess with Texas' Greenhouse Gases

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No regulations without representation

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.

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  1. “If Texas prevails in the federal courts, that would mean that the U.S. would have no program regulating greenhouse gas emissions.”

    This is not a bad thing. In fact, it would be a positive unalloyed good.

    1. Shouldn’t that be national program?

      1. Bees: Yes. I actually clarified the statement by adding “federal” a few minutes after the post went up, but JS was faster.

  2. 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.

    Yeah, if there’s one thing bureaucrats don’t like it’s more power. “Don’t throw me into that br’er patch!”

    1. Tulpa: I suspect the problem is that the EPA and the Obama administration fear a popular backlash if they tried to regulate at such a minute level.

      1. Re: Ron Bailey,

        I suspect the problem is that the EPA and the Obama administration fear a popular backlash if they tried to regulate at such a minute level.

        That’s the problem with relying on a law with specific thresholds to do whatever they want.

      2. They haven’t seemed very frightened about popular backlashes so far in his administration.

        1. True. However, the emissions permitting and compliance costs of, say, a hospital or large office building would be comparable to those of a coal-fired power plant or a refinery if the absurd results doctrine did not apply. That’s why the EPA acknowledges that the CAA thresholds would cause absurd results if applied to GHG.

        2. It doesn’t really matter how they feel once they push people to the point of torches and pitchforks.

      3. If they regulated any stationary source that had the potential to emit 100 or 250 TPY of greenhouse gases, they would have to cover nearly every boiler used to heat every office building and commercial space in the U.S.

        That’s why EPA is avoiding using that threshold. They know it would include millions of sources that otherwise are not covered under the CAA permit program.

        This I know.

        1. Two words: shower heads.

      4. Regulating in the minute is a feature of this administration, not a bug.

  3. 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.

    And badly written law comes back to bite them in the ass. The lawyers that found the contradiction with that provision deserve a medal.

    1. The lawyers were not the first to find this … it was obvious to every environmental engineer in the country that CAA set absurdly low thresholds for CO2, and the absurdity was immediately reported in the trade press and shortly thereafter in the WSJ and general media outlets.

      1. Re: CatoTheElder,

        Understood, but the lawyers are using this absurdly low threshold to basically put the EPA against a corner. That takes some lawyering because it is a bold move, like saying “Oh, yea? Well, you will have to regulate us ALL! Wanna do that??”

        It is the equivalent of placing a yellow star of David on everybody’s sleeve in Denmark so the Nazis could then not know who were the Jews. They had to back off.

        1. Good point, Old Mexican … and very good analogy.

          1. Though Snopes says the whole Danish Star of David story is false.

    2. Ahh, the hamstring argument rears it’s ugly head.

      It’s the classic strategy of trying to make a system or law worse or ineffective, so that you can then claim it should be eliminated.

      Even if Texas were to win the 100 ton argument, all the EPA would do is create some tiny little check-off form for sources under 75000 tons, and apply a $5 fine for those who fail to turn it in…and have .1 person assigned to enforce it.

      Stupid is as stupid does.

  4. There are six million facilities that emit more than 100 tons of CO2? Sweet lord. I thought we were in an economic recession.

    1. Many of them are buildings.

      1. The other half are hardbody pick-up trucks with testicles hanging from the trailer hitch and gigantic lone star decals on the back window.

        1. Fuck yeah

    2. We’re taking care of that right now, Wonder Bread.

  5. The U.S. Congress emits more than 100 tons of CO2 per year just from the legislators breathing.

    1. Let’s not even talk about the methane.

      1. Ton of ton, CH4 has about 25 times the global warming potential of CO2.

        Congress has a huge GHG footprint.

      2. Who do you think puts out more methane: Barney Frank or Maxine Waters?

        1. I don’t want to think about it.

        2. I’m not sure, but Barney’s gets repressurized with a large, erm, piston every so often.

        3. Even more disturbing:

          Who do you think puts out more methane: Barney Frank or Maxine Waters?

      3. “”Let’s not even talk about the methane.””

        Can we have more beans Mr. Taggart?

        1. I’d say you’ve had enough.

  6. Congress has failed to adopt any program to regulate greenhouse gas emissions.

    Congress has successfully avoided adopting any program to regulate greenhouse gas emissions.

  7. As noted previously, according to the EPA there’s a big blob of !USG flosting over Texas right now…

    http://www.airnow.gov/

    1. “Flosting” Ugh. Well, it’s not like anybody actually reads what I post.

      1. Dude, it’s not often a person gets to coin a new word. Make up a unique definition and you’ve got it.

      2. Dude, it’s not often a person gets to coin a new word. Make up a unique definition and you’ve got it.

        1. Whatever definition you come up with, I will refutiate it out of hand.

      3. I’m with Sam:

        “The government’s trying to flost you on that – don’t fall for it!”

        “That lawyer’s just flosting you – he has no case.”

        “Flost” – well done, Tim

  8. “If Texas prevails in the federal courts”

    Or perhaps more interestingly what will Texas do if they do not prevail in federal courts?

    1. “Remember the Alamo!!!!”

      Wait…that didn’t turn out so well for the Texans…

      1. You may have forgotten about San Jacinto, unless you are referring to Texas history since December 1845.

        1. No, no – I remember SJ – great Peter Gabriel song!

  9. Man, I love Texas. From a distance.

  10. That’s only 10,000 gallons (1 gallon of gas = 20 pounds of CO2) of gasoline. At 12mpg, that’ll only take 120,000 miles of driving.

    How much does the typical long-haul trucker drive in a year?

    1. Assume 2000 driving hours in a year at an average speed of 60 mph and you’re right there.

      1. You’ve got to calculate in all those chili dogs and bean tacos consumed over those miles.

      2. Does a rig get 12 Mpg?

        1. oops……see below @7:17pm….

    2. The CAA regulates mobile sources, like your truck, very differently than it regulated stationary sources, like a utility boiler.

      1. Ugh. Regulates, not regulated.

        1. Don’t get all flosted.

    3. I drive nebraska ∣-west regional….about 1800 to 2000 miles per week….and get aprox. 6.2 mpg w/ a 70mph gov’d “aerodynamic enhanced”tractor trailer….

      1. You should probably slow down. If, for example, you got 6.7 mpg at 65 mph, which is very likely the case, you would saving $33/h in fuel costs for every extra hour you spend driving. The general rule of thumb for an 18 wheeler is 1 mph = .1 mpg savings.

        http://www.kenworth.com/FuelEconomyWhitePaper.pdf

  11. You’ve got to calculate in all those chili dogs and bean tacos consumed over those miles.

    And the exaggerated exhalations of productivity-conscious truck stop whores.

    1. Barely tangential to this post, but recently, someone on H&R referenced the Cher song Gypsies, Tramps and Thieves.

      Gypsies, tramps, and thieves
      We’d hear it from the people of the town
      They’d call us Gypsies, tramps, and thieves
      But every night all the men would come around
      And lay their money down

      The money shot lyric is the last two lines of the chorus:

      But every night all the men would come around
      And lay their money down

      The point being that the people of the town were hypocrites because on the one hand, they disparaged the Gypsies for being tramps and thieves while on the other hand, the men of the town would pay for Gypsy sex.

      But in truth, no one could honestly argue that the Gypsies were not Gypsies. And selling sex does qualify them as tramps. And if these Gypsy sex workers weren’t declaring the income from their sex trade on their taxes then clearly they were thieves.

      So I find it interesting that these Gypsies lacked the requisite self-assessment tools to realize that in fact they were by all measures, Gypsies, tramps and thieves.

      1. Whoa. Makes you think.

        1. lol, no it doesn’t.

  12. I can’t wait until they go out east of Houston and try to tell the Republic of Texas boys that their generators require a federal action plan. That will be a pure, unadulterated train-wreck collision of two opposing world-views with large stockpiles of firearms.

    1. That reminds me of Bill O’Reiley last night. He said that the Cordoba Community Center would never be built because no union worker would build it.

    2. now, combine that with the rednecks,ranchers,and roughnecks in west texas,who think that Texas is its own country…………..damn I really miss the permian basin!!!

  13. Let’s make sure we get the timeline right.

    – Clean Air Act is passed to reduce NOx, CO and VOC’s
    – EPA creates standards which start coming into effect in the early 2000’s and incrementally ratchet up to full implementation by 2012.
    – Some environmental groups, prompted by democrats, sue the EPA for not following the CAA
    – Democrats win House and Senate in 2006, and complain that the “Bush” EPA isn’t treating GHG’s as pollutants (not specifically spelled out in CAA, nor planned for)
    – EPA complains that it has neither the resources nor the mandate to go after GHG’s.
    – Supreme Court, making asinine decision number XXX, decides that even though it is not spelled out in the CAA, in their minds, GHGs are pollutants and therefore should be regulated.
    – EPA, forced into a corner which it cannot escape, proposes to regulate top sources of GHG’s to make a show that its doing something.
    – Texas decides this is all BS and arbitrary, so it refuses to play along with the farce and tells the EPA, “No way, Jose”.
    – In the end, Texas will get its way because now the argument has been reframed in a way the Supreme Court cannot possibly overrule and the EPA gets neutered even farther.

    fuck yeah!

    1. No, it’ll mean the EPA doesn’t back down and demands regulation of even the small emitters even though they don’t have the resources to issue permits in a timely basis.
      -Since it’ll take several years to get a permit to run your buildings boiler most of them will be run without permits.
      -In the face of this wave of lawbreaking, law enforcement will be ratched up and SWAT teams will be used to arrest offending building supers.
      -Many, many dogs will be killed.

      1. Great. Why not just make all private, economically productive activity a felony?

        I suppose the EPA will join the growing list of Federal agencies that are buying short-barreled combat shotguns, like the Department of Education’s recent RFQ at https://www.fbo.gov/index?s=opportunity&mode=form&id=cb68cf9f3fa2fe18a83d1c3dee0039b2&tab=core&_cview=0.

        1. Why not just make all private, economically productive activity a felony?

          Bingo! But don’t tell anyone else, okay? It’s a secret!

  14. End result:
    Judge rules that EPA will regulate all 6 million facilities at the lower level and that Texas has to comply?

  15. Wow. Just clicked through to the Texas letter. Pretty bare-knuckled stuff.

    1. No kidding. It’s pretty readable for a document containing a lot of legal mumbo jumbo.

  16. You can say that again.

    However, when reading through the text, is almost as if the State of Texas has suddenly discovered that we don’t live in a democracy, but that we live in an oligarchy of unelected career bureaucrats:

    In order to avoid the absurd results of EPA’s own creation, you have developed a “tailoring rule” in which you have substituted your own judgement for Congress’s as to how deep and wide to spread the permitting burden.

    1. That, and there’s a gubernatorial election this year.

    2. how deep and wide to spread

      Very descriptive of the process of government regulation.

    3. That’s a little unfair to the bureaucrats, given that it was legislation from the bench that forced them to do so.

  17. If the TX AG really wants to tell the EPA to back off, he should argue EPA has no constitutional jurisdiction because admin law violates the separation of powers clause. I can think of a more pertinent argument. It’s called, well ah…democracy. An unelected governmental bureaucrat has no constitutional right to make laws. If only….White papers argue this. John the lawyer….are you there?

  18. If Texas prevails in the federal courts, that would mean that the U.S. would have no federal program regulating greenhouse gas emissions.

    Those of us who did not vote for Obamaboy can only hope.

  19. “If Texas prevails in the federal courts, that would mean that the U.S. would have no federal program regulating greenhouse gas emissions.”

    Seriously, and the downside is? The EPA has been long overdue to have its comeuppance.

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