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Hog apocalypse update

The poison plan for controlling feral hogs is set to be put on pause by the Legislature.

A bill poised to pass the Texas House would amend the Texas Agriculture Code to prohibit the Department of Agriculture from registering, approving for use or allowing use of any pesticide for feral hog control unless a study by a state agency or university recommends such action.

That legislation – HB 3451, by Rep. Lynn Stucky, R-Denton – was filed in the wake of the Texas Department of Agriculture’s emergency rules issued earlier this year (and since suspended by a state judge) that set regulations for use of the first pesticide approved by the federal Environmental Protection Agency for use controlling feral hogs. Texas holds more than 2 million feral hogs, an invasive species causing significant environmental and economic damage in the state. While extermination of feral hogs is almost universally approved by Texans, the move allowing use of the pesticide proved controversial, drawing intense opposition from a wide range of individuals and organizations concerned about the potential negative effects on humans and non-target animals from warfarin, the pesticide’s active ingredient.

Stucky’s bill, which has more than 120 House members as co-sponsors, sailed through its committee hearing, initial procedural readings on the House floor and could see final passage by the House as soon as this week.

The bill can expect to be well received in the Texas Senate, where a companion bill – SB 1454 by Sen. Kirk Watson, D-Austin – has almost a third of the Senate as co-sponsors.

See here and here for the background. That column was published on Wednesday. HB3451 was postponed, first till Thursday and then till Monday, at which time it was overwhelmingly approved by the full House.

Texas Agriculture Commissioner Sid Miller’s push to use a warfarin-based poison to kill feral hogs in the state has a long list of opponents that now includes more than two-thirds of the Legislature where Miller once served.

House lawmakers voted 128 to 13 to preliminarily approve legislation Monday that would require state agency or university research before the use of lethal pesticides on wild pigs. A companion bill in the Senate has 10 co-sponsors.


A coalition of hunters, animal rights advocates, conservationists and meat processors has mobilized against the use of the poison. The Texas State Rifle Association, Wildlife Rescue and Rehabilitation, the Texas Hog Hunters Association and the Texas Veterinary Medical Association are all among the groups that support the bill.

Lotta love for ol’ Sid there. SB1454 has not had a committee hearing yet. Sure seems likely this will pass, especially given that House vote, but it’s never over till it’s over in the Lege. There’s more about other outdoors-related bills in that column, so check it out if that’s your thing.

Let’s use mutant mosquitoes to fight Zika

What could possibly go wrong?

The Bayou City’s teeming mosquito population spawns in dark, wet nooks and carries a slew of deadly tropical diseases that could ravage the region.

So Houston is pondering a sneak attack, something akin to a Trojan Horse. Harris County officials are negotiating with a British biotech company, Oxitec, to create and release mutant mosquitoes genetically engineered so that after they’re set loose in the wild, offspring die, and the mosquito population dwindles.

Deric Nimmo, principal scientist at Oxitec, said it is a paradigm shift – “the release of mosquitoes to control mosquitoes.”

If an agreement is finalized, Harris County could become one of the first locations in the United States to use the mosquitoes, going far beyond the chemicals and public-awareness campaigns the county has long relied upon.


Oxitec spun off from Oxford University 15 years ago to commercialize proprietary strains of insects, namely mosquitoes. The hope is that they can help reduce populations of Aedes aegypti mosquitoes, which carry the Zika virus, dengue fever and chikungunya, among other deadly illnesses. The mosquitoes are common in the Houston region.

Oxitec inserts a “self-limiting gene” into a male mosquito and releases several into the environment. Those mosquitoes then mate with females – Oxitec claims their special males out-compete normal males – and the resulting offspring die before they become adults. Over time, the overall population of the Aedes mosquito declines.

Male mosquitoes do not bite and can’t spread disease.

The company has conducted field trials in Brazil, Panama and the Cayman Islands and says it has reduced the Aedes mosquito populations by up to 90 percent in each location.

“It looks like we’re going to do or plan to do some sort of trial initially to test out the system,” Nimmo said.

Oxitec has yet to try out its technology in the U.S.


According to the FDA, if Oxitec wanted to conduct a field trial in Harris County, the company would have to submit an environmental assessment to the agency.

Another complication: Regulatory authority over Oxitec’s mosquitoes would then likely shift to the Environmental Protection Agency.

Mustapha Debboun, director of the Harris County Mosquito Control Division, said working with Oxitec could provide another tool in the fight against Zika and other mosquito-borne illnesses.

“We’re not abandoning the tried-and-true” approaches, said Harris County Precinct 4 Commissioner Jack Cagle, who has been leading the efforts. “We’re willing to see – What can we add to the tried-and-true that can make this better, especially considering that the tried-and-true has some flaws?”

Unseasonably warm weather has prompted the division to boost staff during winter months. It has seven investigators now, compared to four, and two additional public education staffers, Debboun said.

In August, officials nearly doubled the number of Aedes mosquito traps across the county to 134. Harris County also continues to partner with Microsoft to develop high-tech traps that will sense and nab only certain species of mosquitoes, like those that carry Zika or dengue, and eventually hopes to utilize drones to find and target hot spots.

After receiving a federal grant, the county hopes by May to start research on whether mosquitoes in the region that could carry Zika are developing resistance to certain pesticides. The county also will use that money to test more mosquitoes for Zika, Debboun said.

“The crucial part of all this is to find out if the mosquito has the virus in it,” he said.

Yes, remember the Microsoft Mosquito Drone story? Nice to hear about it again, even if there isn’t much to report yet. As far as Oxitec goes, their approach is one I’ve heard about as a possible way to limit the growth of the A. aegypti population and the many diseases it helps propagate. Maybe it will work without serious unanticipated side effects, but we would be the US pioneers for such a test. I’m not sure how I feel about that, but as the consequences of doing too little are West Nile and Zika, I’m not sure how wishy washy one can be about this. What do you think?

Let’s have a study of that hog apocalypse first

Maybe we should figure out what the effects of poisoning feral hogs might be before we start poisoning them.

Two bills from Texas lawmakers — state Rep. Lynn Stucky, R-Denton, and state Sen. Kirk Watson, D-Austin — would require state agency or university research before the use of lethal pesticides on wild pigs.

The legislation comes after outcry from Texas hog hunters and meat processors over state approval of a new feral hog poison called Kaput, which they say would hurt their businesses and contaminate other game animals and livestock. A state judge issued a temporary restraining order against the rule on March 2. Wild Boar Meat, the Hubbard-based company that sued to stop use of the poison, processes hog meat to sell to pet food companies.

Kaput contains a chemical called Warfarin, which at varying concentrations is used as a rat poison and a blood thinner in humans. It causes hogs that consume it to die of internal bleeding, a process that takes four to seven days.

House Bill 3451 and Senate Bill 1454, both filed this week, would require scientific studies of the poison to include controlled field trials and assess the economic consequences to the state’s property owners, hunters, and agriculture industry.


When Agriculture Commissioner Sid Miller announced a state rule change in February that allowed the use of Kaput — which the Environmental Protection Agency approved for feral hog control earlier this year — he called the poison a “long overdue” solution to the extensive damage the wild pigs cause every year.

“The ‘Hog Apocalypse’ may finally be on the horizon,” said Miller, who as a state legislator passed a measure known as the “pork-chopper bill” that allowed the hunting of hogs by helicopter in 2011.

The department has defended the new rule, saying it imposes licensing restrictions to protect against misuse of the poison.

See here for the background. On the one hand, it’s long been clear that hunting the hogs, even with no restrictions or bag limits and even from helicopters, will never be enough to slow down the population growth. Warfarin is approved by the EPA, and it just might work. On the other hand, it’s hard to take seriously any claim by Sid Miller that’s he’s being a careful and conscientious steward of the environment. On balance, I’d say it’s better to be a bit more deliberate with this.

If you can’t porkchop ’em, poison ’em

The war on feral hogs enters a new phase.

At a Feb. 21 news conference in Austin, Texas Agriculture Commissioner Sid Miller announced the agency had issued a rule that would allow Kaput Feral Hog Bait, a pesticide containing the anticoagulant warfarin as its active ingredient, to be used in the control of feral hogs. The emergency rule, issued Feb. 6, makes Texas the first and, so far, only state to adopt regulations allowing the use of a lethal toxicant – poison – to control the invasive swine.

Miller, who as a member of the Texas Legislature in 2011 sponsored a successful bill allowing aerial gunning of feral hogs by private citizens with the permission of landowners, trumpeted the new rule as a significant advance in the state’s ongoing war against feral hogs, which compete with native wildlife, carry and transmit diseases such as brucellosis, and annually cause tens of millions of dollars in damage to property, including an estimated $50 million in annual losses to agriculture.

“I am pleased to announce that the ‘feral hog apocalypse’ may be within Texans’ reach with the introduction of Kaput’s hog lure,” Miller said.

Miller’s action was made possible by the U.S. Environmental Protection Agency’s conditional registration last month of Kaput Feral Hog Bait under the federal statutes governing pesticide use across the country. Kaput, the brand name of pesticides produced by Colorado-based Scimetrics Ltd. Corp., is the first and, so far, only toxicant approved by federal authorities for use in feral-hog control.

Warfarin, laced in prepared baits designed to be eaten by feral hogs, is toxic to pigs in the same way that it is lethal to rats, mice and other rodents for which the substance has been used as a toxicant for more than 60 years. Warfarin has therapeutic uses – it is one of the most common medications taken by humans as a blood-clot preventive. But ingested in sufficient quantities by some mammals, warfarin triggers fatal internal hemorrhaging.

Warfarin’s effects are anything but therapeutic in pigs. Feral hogs’ physiology makes them susceptible to warfarin’s toxic effects at a much lower dose than almost any other animal, research has shown. The percentage of warfarin the Kaput Feral Hog Bait approved by EPA is 0.005 percent by weight – five times lower than the 0.025 percent warfarin by weight used in rats/mice baits.

The poison has proven very effective at killing feral hogs, according to research conducted in Texas by Genesis Labs, a sister company of Scimetrics.


To limit exposure of non-target species such as deer, raccoons, birds and other that might ingest the baits, protocols for distributing it mandate use of a specially designed feeder with a heavy “guillotine” door that must be lifted to access the bait. Feral hogs have little trouble using their stout snouts to lift the door, while the door’s weight and mode of operation stymies most other wildlife.

Additionally, use of the pig poison in Texas will be restricted. Under the rule change announced by Miller, the warfarin-based bait is classified as a “state-limited-use pesticide,” and it can be purchased and used only by state-licensed pesticide applicators.

Landowners or others who want to use the hog toxicant on property in Texas and who do not hold the required license will have to hire a licensed applicator to legally set up the approved bait dispensers and distribute the bait. That almost certainly will limit its use.

Some Texans would rather it not be used at all.

In the wake of Miller’s announcement, the Texas Hog Hunters Association initiated an online petition to have the rule revoked. The group cites concerns about the potential human health effects of eating feral hogs that have ingested the warfarin-infused baits as well as questions about collateral damage to non-target species such as deer or domestic dogs that ingest treated baits and possible secondary poisoning of animals and protected birds such as hawks and eagles.

As of early Saturday, the online petition at had garnered 10,400 supporters.

Texas Department of Agriculture statements counter those concerns, noting the low levels of warfarin in hogs that consume the baits pose little threat to humans, especially if they avoid eating the animal’s liver, where most of the warfarin will be concentrated. Also, the bait contains a blue dye that transfers that color to the fatty tissues of hogs. Hunters taking a hog and finding blue-tinted fat can decline to eat the animal.

Here’s the petition in question. It turns out that these hunting groups did more than just create a petition, and they got some results.

A Waco-area feral hog processor on Monday said he was racing to get a bill filed that would shoot down Texas Agriculture Commissioner Sid Miller’s call for a “hog apocalypse” through use of a poisonous bait.

Will Herring, owner of Wild Boar Meats, last week won a court order temporarily halting Miller’s Feb. 21 rule allowing use of “Kaput Feral Hog Lure,” arguing the measure would spook pet food companies he sells to and put him out of business. Herring said he’d since secured Rep. Kyle Kacal, R-Bryan, as primary sponsor for legislation that would require study of chemicals before they are approved. The deadline to file bills for the current state legislative session is Friday.

“All our bill says is, ‘Let’s have a state agency and/or state educational institution study this poison and any other poison before it before it becomes legal,’” Herring said from Austin, where he was recruiting state lawmakers to back the bill. “There’s not one public study, and by public study I mean a study available to the public, that has looked at using the product Kaput to poison feral hogs.”


Herring said he was processing as many as 5,000 hogs a month and was getting ready to break ground on a new facility when Miller announced a rule that could potentially put he and other wild hog processors out of business.

“We have not developed a way to test for it, nor have we developed a way to inactivate it,” Herring said. “If someone said, ‘Look, I only want to buy warfarin-free wild hog meat,’ we do not know a way that we could guarantee that. And that’s a problem to me.

“It’s not just me that’s concerned about this,” Herring added. “I only do the pet food business. There’s a couple of companies that deal with the human consumption business, and it’s the same issue.”

Herring last Wednesday filed a lawsuit against Miller’s rule, with the Texas Hog Hunters Association and Environmental Defense Fund filing supporting briefs. State District Judge Jan Soifer in Austin on Thursday issued a temporary restraining order stopping Kaput use in Texas until March 30, saying the TDA did not follow the Texas Administrative Procedures Act and agreeing that allowing Kaput would cause “immediate and irreparable harm” to Wild Boar Meats.

All right then. I have some sympathy for the hunters here, because introducing poison into the environment, even in a fairly controlled fashion like this, carries a higher level of risk. Even with the protocols in place, there’s no way to fully prevent unintended consequences of this. It should be noted that this isn’t the first attempt at poisoning the pigs, but it is the first one with an EPA-approved toxin. We’ll see how this plays out in court, and I’ll keep my eyes open for an anti-warfarin bill in the Lege; as of yesterday, I didn’t see anything authored by Rep. Kacal that sounds like this.

Texas gets VW lawsuit settlement money

Not bad.

Texas will receive more than $190 million for environmental mitigation under a multibillion-dollar settlement in the Volkswagen emissions cheating scandal approved by a federal judge in San Francisco on Tuesday. Volkswagen buyers will have the option of buybacks or repairs.

U.S. District Judge Charles Breyer authorized the $15 billion agreement, which was first detailed this summer. It awards hundreds of million of dollars to dozens of states and includes a $10 billion buyback program to compensate consumers who bought Volkswagen Group vehicles, including Audis. Under the settlement, the German automaker will establish a $2.7 billion trust fund for projects designed to mitigate environmental harm caused by excess emissions from its vehicles. It also has agreed to pay Texas $50 million in civil penalties and attorneys’ fees for violating a state consumer protection law that bans deceptive advertising.


Environment Texas called on the state to invest the money in state programs aimed at getting exhaust-spewing or diesel-powered vehicles off the roads, along with rebates to entice people to buy eco-friendly electric vehicles.

“Given Texas’ continuing struggle to reduce harmful air pollution, the state needs to make a greater investment in clean air and the VW funds can help us get there,” the Austin-based group said in a statement. “However, it may be tempting for legislators to play shell games with the VW money and swap it out with dedicated clean air funds, resulting in no net gain for air quality. That would be a harmful mistake.”

See here and here for some background. Terms of the settlement, which covers about 32,000 cars sold in Texas, can be found here. If you might be one of those VW purchasers, you can look up how this affects you. You won’t get full buyback price, but you will get something.

Note that this is not the end of the line for VW litigation. Harris County filed a lawsuit against VW on its own before the state did; Dallas County did so as well. The state wanted them to drop their actions, but they did not. Because those suits were filed in state court, not federal court, they were not part of this agreement. I’ve asked the Harris County Attorney’s office for more information on where that stands. This is what they told me:

There’s no court date set at this time. Here’s some additional details:

The parties have started taking depositions of VW fact witnesses, and we expect those depositions to continue to be scheduled.

We have started reviewing documents that VW has produced in this matter.

The Federal settlement addressed the consumer claims and EPA’s claims for environmental remediation which are different than the civil penalties that Harris County is seeking.

In a recent ruling, Judge Sulak (in Travis County) declined the State of Texas requests to dismiss the claims that the Texas counties that filed after the State filed its claims against VW. The State of Texas is seeking to appeal that ruling. Because Harris County filed its claims prior to the State of Texas, the State of Texas has recognized that its argument on this issue does not apply to Harris County.

So there you have it. More on the federal settlement is here.

Clean Power Plan’s day in the DC court

We’ll see how it goes.

Dozens of lawyers from the government, industry and public interest groups packed the US Court of Appeals for the DC Circuit, to hear the divisive case that comes just weeks before a heated presidential election and illustrates how a President’s picks for the lower court might impact his own agenda.

The plan is currently frozen because last February, the Supreme Court voted to delay implementation until the appeals process could play out.

Opponents to the plan claim that the EPA went too far under the law to push the rule.

Judge Brett M. Kavanaugh at one point questioned EPA’s authority.

“This is a huge case,” he said and noted that it could “fundamentally” transform the industry. Kavanaugh said the administration’s policy is “laudable” but questioned under the separation of powers whether Congress, and not the EPA, had to speak clearly on the issue.

Judge Thomas B. Griffith chimed in asking, “why isn’t this debate going on in the floor of the Senate?” rather than before a panel of judges. But Judge Patricia A. Millet reiterated at one point that the Supreme Court “has already said” that the EPA has the authority to regulate in the area.

Other judges questioned whether by 2030, the rule would be any more transformative to the coal industry, for example, than market forces would be.

Judge David S. Tatel asked whether the agency was simply “invoking existing authority.”

While the morning session in court was dedicated to statutory arguments, in the afternoon the court heard arguments concerning whether it was unconstitutional. The challengers’ constitutional arguments did not appear to to get much traction with the judges.


During complex arguments before a multi-member court is dangerous to try to determine — based on questions posed at oral arguments — how a judge will ultimately rule. It’s worth noting however, that Tuesday’s case comes before an appellate court that has been transformed during the Obama administration.

Before Obama took office the appeals court tilted toward conservative appointees with six judges nominated by a Republican president and three nominated by a Democratic president. There were also two vacancies.

Currently, the active judges on the court consist of four GOP appointees and seven Democratic appointees. In 2013, Obama placed four judges on the court, three of them immediately after the Senate changed its filibuster rules. Tuesday’s case was heard by all the active members of the court except for Chief Judge Merrick Garland who has recused himself from hearing cases because he has been nominated to the Supreme Court.

“The party of an appointing president surely makes a difference in some types of cases — environmental for example — more than others,” said Russell Wheeler, a visiting fellow at the Brookings Institute. “When the full court meets is when the party of appointing president is likely to matter most because the great majority of decisions are made by three-judge panels, randomly drawn and not necessarily reflective of the overall composition of the court.”

See here for the background. ThinkProgress agrees with the basic vote counting, with the possibility of a GOP judge siding with the Dems. The long and short of it is that we’ve seen this basic fight play out multiple times before – the Obama administration proposes a regulatory enforcement plan for the EPA, various Republican states led by Texas freak out and file suit, and the courts sort it out, usually with the feds winning. But do keep in mind that all of this is happening because 1) a Democratic President who cares about fighting climate change proposed this regulatory scheme, among others, and 2) an appeals court that has more Democratic appointees than Republican ones will make the decision that is likely to stand thanks to the current makeup of the Supreme Court. The fastest way to undo this is to not have a Democratic President in place after November. I’m just saying.

Want to know how close you live to a polluter?

There’s an app for that.

More than two million Texans live within a half-mile of an oil and gas facility, putting them at risk of exposure to toxic fumes, according to a new app released Wednesday by national environmental groups. The online tool — which includes a searchable map — places about a fifth of the state’s area, and more than 900 Texas schools and 75 medical facilities, in the half-mile range.

The app, created by Earthworks, Clean Air Task Force and FracTracker Alliance, is searchable by address and overlays the locations of oil and gas facilities and vulnerable populations with cancer and respiratory health risk information. An analysis published with the map also estimates that by 2017, 82 counties in Texas with a population of 4.1 million or more will face an elevated cancer risk.

“This [app] is so important in Texas is because of the political situation,” said Earthworks’ communications director, Alan Septoff. “The state has vowed never to regulate greenhouse gas emissions and there’s no chance the state of Texas is going to act.”


In June, about a month after the Obama administration announced plans to regulate methane leaks from new oil and gas facilities, the Texas Railroad Commission urged the state’s attorney general to sue the Environmental Protection Agency over the rules. Texas Railroad Commissioner David Porter has previously said the methane regulations “kill the jobs Texans rely on to support their families” and are “unnecessary” and “over-burdensome.”

Septoff said his group hopes both that the tool will be a resource to help folks living close to oil and gas activity understand the health risks they may be facing, as well as a push for the Obama administration to adopt methane regulations for facilities already in operation.

Here’s what the map for Texas looks like. There’s a ton of information on the webpage, with videos to help you use and understand the data. However you feel about regulations, you’re better off having full information available to you. Check it out.

Texas to get VW settlement money

It’s something.

Volkswagen has agreed to pay Texas $50 million in connection with the German automaker’s admitted peddling of diesel vehicles rigged to surpass emissions limits, Attorney General Ken Paxton announced Tuesday.

The partial settlement is part of a larger, multibillion-dollar agreement unveiled Tuesday that awards hundreds of millions of dollars to dozens of states and includes a $10 billion buy-back program to compensate consumers who bought the vehicles. Various media reports described it as the largest auto-related class-action settlement in U.S. history.


Paxton sued Volkswagen Group of America Inc. and parent company Audi of America in October in connection with the automaker’s admitted use of software that allowed its diesel vehicles to circumvent emissions limits. The lawsuits alleged violations of the state’s consumer protection laws and clean air standards. They were among hundreds filed in the United States against VW by governments and consumers.

As part of the settlements announced Tuesday, VW agreed to pay Texas $50 million in civil penalties and attorneys’ fees for its violations of the Texas Deceptive Trade Practices Act, which bans false advertising and sale of misrepresented products. About 32,000 diesel cars capable of emissions cheating have been sold in Texas, according to U.S. Environmental Protection Agency figures. That’s compared to about 480,000 nationwide and 11 million globally.

“For years, Volkswagen intentionally misled consumers about the environmental and performance qualities of the vehicles they sold in Texas,” Paxton said in a statement. “When companies willfully violate the public’s trust, we will hold these entities responsible. This settlement will both compensate the victims of Volkswagen’s fraud and punish the company enough to deter future fraud.”

He noted Texas has not yet resolved claims that VW violated state clean air laws, and that Texas continues to pursue related penalties. A Paxton spokeswoman would not say how much those might amount to.

See here for the background on the Texas lawsuit, and here and here for more about the national case. It’s nice to see the AG’s office on the side of a worthwhile case for once, though honestly this was as close to free money as it gets. I mean, the initial suits were filed less than a year ago. VW had basically admitted fault, and they clearly wanted this to go away. Good on them for that, but boy do they still have a lot to atone for.

And they’re not out of legal trouble just yet:

Several local governments in Texas, including Harris County, have also sued VW — over objections from Paxton — but they were not included in the settlements announced Tuesday. The Harris County lawsuit is pending in Travis County district court.

See here and here for the background on that. I presume Paxton didn’t do anything beyond send a letter to the relevant county attorneys asking them to back off; if he did, I couldn’t find any mention of it. It seems likely to me that with the big settlement out of the way, these others will soon follow, but we’ll see.

How much would you pay to fix Houston’s sewer system?

Whatever your answer to that question is, the real answer is that it could be quite a lot.

Years of Houston’s cracked, clogged or flooded sewer pipes belching raw waste into residents’ yards and city streets have City Hall facing a federal decree that sources say could force the city to invest $5 billion in upgrades.

As in dozens of cities across the country, the looming Environmental Protection Agency mandate likely will force Houstonians to pay sharply higher water bills to fund the improvements.


As is the case in Wood Shadows, many of Houston’s sewer overflows reach local bayous and breed bacteria. These violations of the Clean Water Act create health risks severe enough that experts advise against swimming in local waterways, 80 percent of which fall short of water quality standards for fecal bacteria.

Rather than face a lawsuit from the EPA, which enforces the Clean Water Act, city officials have spent the last few years negotiating a so-called consent decree, a binding agreement that specifies projects aimed at reducing spills by upgrading pipes, ramping up maintenance and educating the public on how they can avoid clogging Houston’s 6,700 miles of sewers, such as not pouring grease down the drain.

EPA officials declined comment, and city leaders have resisted discussing details of the talks, but three sources with knowledge of the negotiations say the efforts expected to be required under the mandate could cost an estimated $5 billion.

Mayor Sylvester Turner has acknowledged the negotiations are “significant,” and said he has discussed the decree directly with EPA Administrator Gina McCarthy and plans to soon meet with Houston’s Congressional delegation on the issue.

“We are not opposed to making improvements, but we want the costs to be reasonable and spread out over the next 20 years so we can avoid any dramatic spiking of ratepayer rates,” Turner said. “Negotiations are ongoing on all fronts.”

Brent Fewell, an environmental consultant and former top official in the EPA’s water division, agreed that getting more time to comply with a decree can curtail a rate hike. Still, he said, Houstonians should expect to pay more.

“These are big-ticket items. They’re not cheap, and it definitely has an impact,” Fewell said. “There are some communities that have seen as much as 100 percent to 150 percent increases in their water rates based on these consent decrees.”

Houston’s sewers have lagged since the city’s first postwar boom, with City Hall, critics say, tending to make fixes only when forced to by regulators.

Whatever sewage treatment plants could not handle in the 1960s was dumped straight into the bayous, making Houston for decades the region’s single worst water polluter. The Texas Attorney General took the city to court over the issue in 1974, securing a judgment that restricted Houston’s development until new plants were built.

Those investments did not end the spills, however, so another round of decrees spurred a mid-1990s effort that repaired a quarter of the city’s sewer pipes and upgraded many treatment plants and pump stations.

Even that $1.2 billion program didn’t fix the problem, leading to another 2005 state mandate that Houston is scheduled to satisfy this month. That mandate was to replace 1,800 miles of pipe, clean twice that much, and cut grease clogs by passing an ordinance requiring restaurants to clean their grease traps.

For a bit of extra credit, do some reading over at the city’s Wastewater Operations page. I’m reminded of a story I heard from the professor of an urban history class I took in college. He talked about how in New York, specifically in Manhattan, the upper classes lived farther north in the pre-indoor plumbing days, and thus were first in line to both cook and wash with, and dump their waste into, the Hudson and East Rivers. Those of lesser means, who lived south – that is, downstream – from there, were thus “literally eating shit”, as he put it.

Try to keep that in mind when you read this story, because it’s our sewer system and wastewater treatment plants that allow us to avoid a similar fate. Whatever the city negotiates with the EPA, the cost of building more capacity and fixing old leaks will be passed on to all of us, and no one will like it. If you want to blame someone for it, blame all the public officials og generations past that failed to maintain the city’s water infrastructure, and the voters who let them get away with it. It will not be much fun fixing this problem, but the alternatives are all much worse.

New methane rules finalized

Gentlemen, start your lawyers.

The Environmental Protection Agency on Thursday issued its final rule for methane emissions from the oil and gas industry.

The rule limits methane emissions from new oil and gas infrastructure and requires operators to submit to semi-annual or quarterly monitoring, depending on the type of operation. In addition, the agency took another step toward drafting a rule that would apply to existing oil and gas operations.

“They will help keep the nation on track to help the us cut emissions from the oil and gas sector,” EPA administrator Gina McCarthy said on a call with reporters Thursday. The new rule will reduce emissions by 11 million tons per year of CO2 equivalent by 2025, she said.

The Obama administration has a goal of reducing methane emissions from the oil and gas sector by 40 to 45 percent from 2012 levels by 2025. Natural gas is 80 percent methane, while oil extraction processes also often release methane trapped underground. In 2012, 30 percent of the country’s methane emissions came from oil and gas operations.

Methane is a potent greenhouse gas, trapping heat 86 times more effectively than CO2 over a 20-year span, so leaking methane can be a huge problem. While natural gas burns more cleanly than coal, leaks in the system can eliminate the climate benefits. Scientists have found that in the United States, methane leaks and venting have nullified any emissions benefit from transitioning the electricity sector from coal- to natural gas-fired power plants. In fact, the EPA recently found that the problem of escaping methane is even worse than initially feared. The United States currently gets a third of its electricity from natural gas, up from 24 percent in 2010.


There are, though, two key changes from the initial draft rule the EPA published last year that environmentalists welcomed. Under the new rule, natural gas compressors will be subject to quarterly monitoring — twice as often as under the proposal. In addition, low-production wells will be included in the rule. In its fact sheet, the agency credited the changes to the more than 9,000 public comments it received after the draft rule was published.

See here and here for some background. We all know what comes next, and we know it’s not over till the Supreme Court says it is. So sit back, pop open a cold one, and wait for the legal action to begin. Daily Kos and the Trib have more.

Find those leaks

I don’t care how.

A pair of state and federal government inspectors spent two weeks traveling around northern Colorado’s oil and gas fields in early 2012, filming with an infrared camera.

Air pollution was rising in the region, and attention was turning to the rapid increase in drilling activity. The inspectors focused on Houston-based Noble Energy, one of the state’s largest drillers with about 7,000 wells in the suburbs and countryside north of Denver.

With the naked eye, there was nothing to see at the nearly hundred sites they visited. But when observed through the infrared camera, again and again they saw plumes of gas radiating from the top of storage tanks near the wells.

“The infrared camera does not quantify emissions, but you can say that’s a small leak versus a big leak. And these were big leaks,” said one of the inspectors, Cindy Beeler, an energy adviser at the U.S. Environmental Protection Agency’s offices in Colorado. “When we showed our findings to Noble, they were surprised.”

As the Obama administration accelerates its campaign to blunt the effects of climate change, federal regulators are turning to infrared technology to seek out emissions leaks in the country’s oil and gas fields. With state agencies, including the Texas Commission on Environmental Quality, and environmental groups embracing the technology, drillers are increasingly finding themselves staring down the lenses of infrared cameras.

Beyond government inspections, many companies are worried they soon will be required to do their own infrared scans and make what they fear will be unnecessary repairs across the country’s more than 1 million oil and gas wells. Industry lobbyists are already challenging the devices’ effectiveness.

“Part of our concern is that it really locks us in to this technology at a point in time the understanding of these fugitive emissions is really in its childhood,” said Lee Fuller, executive vice president of the Independent Petroleum Association of America. “The presumptive starting point for the EPA is requiring infrared.”


For decades, companies and government inspectors relied on hand-held sensors to tell them if gas was leaking. But without a means to see the emissions, one was left to guess where to hold the sensor on a drilling site that can run the size of a football field – “like trying to pin the tail on the donkey,” Beeler jokes.

Then in 2011, the EPA decided to try infrared technology, which uses variations in temperature and other environmental measures to form images – capturing everything from a mouse on the ground to escaping gas.

At the time, the primary mission was reducing the release of volatile organic compounds, a key contributor to smog, which has long been linked to asthma and lung disease in humans. But federal attention is now turning to methane, which makes up about 10 percent of U.S. greenhouse gas emissions and has an impact on global warming 25 times that of carbon dioxide.

The oil and gas industry is pressuring the EPA to look away from infrared at other cheaper technologies, like methane sensors, that would automatically detect leaks as they occur but are still in development. In a memo to EPA in December, the IPAA raised several issues about the infrared devices, including concerns about whether smaller companies could handle the cost – $100,000 each – and whether they were reliable.

“The results of the camera, the ‘pictures,’ are difficult to interpret and subject to misinterpretation, e.g., what appears to be a leak could simply be a heat plume,” the memo stated.

EPA officials countered that infrared is one of a variety of tools for gathering evidence in emissions cases that often was supported by data from the companies themselves.

“Infrared allows us to see hydrocarbons,” said Apple Chapman, associate director of EPA’s air enforcement division. “It’s a faster screening tool and a faster investigative tool.”

I don’t care what technology gets used, as long as something gets used that can reliably detect these leaks. I doubt I have to explain why some kind of voluntary compliance program is worthless. If the industry has a viable alternative to infrared that they don’t mind being required to use, then fine. If not, then infrared it is. Whatever gets the job done.

New EPA rules for methane coming

You know what will follow.

Building on already pending rules to cut methane leaks from both new oil and gas wells and those on federal lands, the U.S. Environmental Protection Agency now plans to bring to the oil sector the tough emissions standards it previously applied to automobiles and power plants.

The change would bring federal pollution rules in line with President Barack Obama’s earlier stated promise to reduce methane emissions from oil and gas drilling at least 40 percent by 2025, EPA Administrator Gina McCarthy said.

“Based on this growing body of science, it’s become clear it’s come time for EPA to take additional action,” she said in a news conference Thursday. “We’ll start this work immediately, and we intend to work quickly.”

The EPA said it was only just beginning to put a rule together and would be reaching out to oil and gas companies next month to request emissions data, to get a better handle on the scale of the problem and the costs of fixing it.

But based on the methane rules, already pending, hundreds of thousands of oil and gas wells across Texas and the country are likely to be required to invest in technology like infrared cameras and methane sensors to seek out and repair natural gas leaks in their pipelines and storage tanks.


A recent study commissioned by the Environmental Defense Fund puts the cost of reaching Obama’s goal at 1 cent per Mcf of natural gas – less than 1 percent at current prices – when factoring in current lost revenues from escaping natural gas.

But in a conference call with reporters Thursday, Kyle Isakower, vice president of regulatory and economic policy at the American Petroleum Institute, said costs were likely to be far higher.

He said the industry would need to see the final rule before deciding whether to take legal action, as states and coal producers have done over Obama’s Clean Power Plan.

“We’re keeping all our options on the table,” Isakower said. “The administration is catering to environmental extremists at the expense of American consumers.”

Yeah, yeah, we’ve heard it all before. While the many, many lawsuits filed over Obama’s environmental regulations have in some cases delayed implementation for awhile, in the end the EPA and everyone who likes clean air and water has generally prevailed, as the Supreme Court has upheld the EPA’s authority to set and enforce these rules. I see no reason why this time should be different. Think Progress has more.

SCOTUS allows mercury regulations to remain in effect


Martin Lake coal plant

Martin Lake coal plant

The U.S. Supreme Court has denied a request from Texas and 19 other states to block a landmark federal rule requiring power plants to slash emissions of mercury, acid gases and other toxic metals — a setback for Texas Attorney General Ken Paxton in a case where he saw earlier success.

Without offering an explanation, Chief Justice John Roberts on Thursday denied the states’ request for a stay on the rules, according to media reports.

That decision followed a Supreme Court ruling last June — hailed by Texas Republicans — that the U.S. Environmental Protection Agency did not properly weigh the cost of compliance for coal-fired power plants against the benefits to public health while setting the new standards.

The June ruling sent the Obama Administration back to the drawing board on the regulations, which had already gone into effect. But it did not halt them.

The states, led by Michigan, had asked the justices to block the rules during the revision process. Roberts said no.

See here, here, and here for the background. Any day where Ken Paxton loses a fight to enable pollution is a good day. Think Progress has more.

Texas files another lawsuit against the EPA

Haven’t we seen this movie before?

In the state’s first lawsuit against the U.S. Environmental Protection Agency in 2016, Texas is suing the agency for rejecting parts of a seven-year-old state proposal to reduce haze in wilderness areas.

The EPA rejected portions of the plan in January, citing concerns that it did not adequately address requirements of the agency’s Regional Haze Rule, which regulates the air in natural areas in Texas and Oklahoma.

“Texas already has a plan that meets the standards of the Clean Air Act, however, once again, the Obama Administration is misinterpreting and misusing federal agencies to force through a radical agenda based more on the beliefs of his environmentalist base than on common sense,” said Attorney General Ken Paxton in a statement.

The petition for review – the state’s 24th legal action against the EPA since Obama took office in 2009 – was filed in the U.S. Fifth Circuit Court of Appeals on Monday.

The Regional Haze Rule was proposed by the EPA to clean up the air at wilderness areas and national parks. Regulations for Texas include the Guadalupe Mountains National Park east of El Paso and Big Bend National Park on the Texas and Mexico border.

Do the particulars of this case even matter? It’s the same song, 24th verse. Even “Amazing Grace” isn’t that long. It is what it is, and the good news is that past history suggests that the state will lose. Again. The Scoop Blog has more.

Environmentalists petition EPA to strip Texas of some authorities

This unfortunately is not likely to go anywhere, but I relish the idea anyway.

Alleging that Texas has dramatically eroded its safeguards against air and water pollution, two environmental groups are asking the federal government to step in.

The Environmental Defense Fund and the Caddo Lake Institute are petitioning the Environmental Protection Agency to strip Texas of some of its authority under the federal Clean Air Act and Clean Water Act.

The nonprofits asked the agency to “review and withdraw its delegations of permitting authority to the Texas Commission on Environmental Quality” — the TCEQ — arguing that Texas lawmakers, by gradually cutting funding and passing more industry-friendly laws, have effectively rendered the agency toothless.

The commission panned the petition. “Texas law has and continues to meet federal requirements – to suggest otherwise is misleading to the public,” spokesman Terry Clawson said in an email. “We expect EPA to reject this frivolous petition.”

And the EPA on Tuesday said it was “not aware of significant deficiencies in TCEQ-delegated environmental programs at this time.”

“We will carefully review and consider claims raised by the environmental groups and respond accordingly,” Melissa Harrison, a spokeswoman for the EPA, said in an email.


As it has in other states over the past four decades, the EPA has given Texas the authority to permit and enforce a variety of air, waste, water and mining programs after lengthy and complex negotiations.

The federal agency rarely — if ever — has completely revoked a state’s permitting authority. But there have been close calls.

In 2013, for instance, Arkansas lost some of its Clean Water Act authority after its legislature passed a bill changing requirements for discharging minerals into streams. Lawmakers fixed the legislation after several permits were routed to the EPA.

Experts can’t recall an example where the agency took away Texas’ authority, but the state has faced similar issues.

About five years ago, the state refused to follow regulations involving greenhouse gas permits, delaying dozens of energy projects and prompting a major outcry from the industry. The Legislature relented in 2013 and directed TCEQ to begin issuing the permits.

You can see a copy of the petition here, and a copy of the EDF’s press release here. The move was in response to the many awful, anti-environmental bills that passed during the last legislative session; you can read the Trib story for an accounting of that. The EPA doesn’t sound particularly enthusiastic about picking this fight, and given how often they’ve had to defend themselves against lawsuits filed by Texas, I can’t blame them for being leery. I still hope they’ll at least put enough thought into this to deliver a scare to everyone who deserves it.

Yet another lawsuit by Texas against the EPA

So what else is new?

In another lawsuit against the federal Environmental Protection Agency, the state of Texas is taking aim at tightened standards on ground-level ozone — President Obama’s effort to cut down on smog that chokes the nation’s skies.

An ozone standard finalized in October shrank the previous 75 parts per billion limits on ozone to 70 parts per billion, putting pressure on some regions in Texas that struggled to meet the previous standards. The rules aim to crack down on pollution coming from factories, power plants and vehicle tailpipes.

Ozone forms when emissions from cars and industrial plants mix with other airborne compounds in sunlight, and it can worsen asthma, lung disease and heart conditions.

Though the new regulation is more lenient than what environmentalists called for, Texas leaders quickly joined with industry in blasting the regulation, arguing that it will cost billions of dollars to invest in cleaner technology that will yield fewer health benefits.

See here for some background, and here for a copy of the lawsuit. We all know the drill here. There will be much sound and fury, and in the end the state will most likely lose. It’ll take awhile and cost a lot of money, and we’ll all try to pretend that this is normal. Wake me when it’s over in a couple of years.

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.

Some power companies like the Clean Power Plan

Not that you’d ever know it.


Thad Hill, in a split with many fellow power company executives, flatly opposes the lawsuits that Texas and 25 others states have filed to block the Obama administration’s Clean Power Plan.

The plan, which the Environmental Protection Agency unveiled in the summer, seeks to combat climate change by reducing carbon emissions at existing power plants. It would affect coal-fired plants most profoundly, because they emit the most carbon dioxide.

It’s no coincidence that the company Hill heads, Houston’s Calpine Corp., owns exactly zero coal plants.

While it’s intuitive that wind and solar power companies, which don’t emit greenhouse gas in generating power, support the Clean Power Plan, opinion within the traditional electricity generation sector is more nuanced.

Calpine, which operates the nation’s largest fleet of natural gas-fired generators, leads a relatively small group supporting the federal rule.

Most companies that generate power with coal oppose it, including Dallas-based Luminant, the state’s largest power generator. It also operates some gas plants and one of Texas’ two nuclear plants.


While the EPA has tightened other emissions regulations under President Barack Obama, the Clean Power Plan is the most sweeping overhaul, said Travis Miller, director of utilities research at Morningstar.

The plan is intended to reduce carbon pollution from existing power plants 32 percent from their 2005 levels by 2030.

“The Clean Power Plan is going to have ripple effects throughout the entire energy system in the U.S.,” Miller said. “Utilities need a long runway to adapt, but they’re willing to adapt.”

In the lawsuit challenging the rules put forth by the Democratic Obama administration, Republican Texas Attorney General Ken Paxton calls the plan a massive power grab by the EPA that would increase Texans’ electric bills significantly and threaten the reliability of the electric grid.

The Electric Reliability Council of Texas, which manages 90 percent of the state’s power grid, has estimated the rule could force the closures of some Texas coal plants and increase electricity prices 16 percent by 2030.

Miller agreed that the Clean Power initiative would affect Texas, though he said that Midwestern, Great Plains and Appalachian states most dependent on coal would feel the greatest effects.

Some of the changes in Texas’ power landscape are occurring anyway, because of cheap shale gas and Texas’ ranking as the largest wind power producer in the nation.

“There’s an impressive pipeline of new gas generation and new wind generation in Texas,” Miller said.

That presents market challenges to coal plants, and could move the state toward compliance with the Clean Power Plan. “Texas might not have to do all that much,” Miller said.

See here for the background. Miller’s statement is consistent with what ERCOT itself has said, and the Clean Power Plan would help conserve water, too. But this is Texas, and our leadership has to do things the hard way. Just remember, they don’t speak for everyone, not even in the power generation business.

The inevitable latest lawsuit against the EPA

As night follows the day.


As promised, Texas is suing the U.S. Environmental Protection Agency over President Obama’s plan to combat climate change, Attorney General Ken Paxton announced Friday, just after the new regulation had been finalized.

The state is suing as part of a bipartisan coalition of 24 states — including Missouri and Kentucky, which are led by Democrats — that will jointly request a stay on the plan Friday afternoon.

The regulation, known as the Clean Power Plan, requires states to cut carbon emissions by shifting from coal power to natural gas and renewables over the next 15 years.

Paxton has warned that the Clean Power Plan would dramatically inflate the cost of electricity for consumers and imperil the state’s power grid, describing the regulation as a federal “power grab.”


The coalition will argue that the EPA “cannot force the states to regulate where the EPA doesn’t have authority to regulate itself,” Morrisey explained.

It filed a petition for review of the regulation Friday morning with the U.S. Court of Appeals for the District of Columbia.

“Petitioners will show that the final rule is in excess of the agency’s statutory authority, goes beyond the bounds set by the United States Constitution, and otherwise is arbitrary, capricious, an abuse of discretion and not in accordance with law,” the petition says. “Accordingly, the petitioners ask the court to hold unlawful and set aside the rule, and to order other such relief as may be appropriate.”

See here for the background, and here for the AG’s complaint. ERCOT has actually confirmed that Texas is well-positioned to comply with the Clean Power Plan, but what fun would that be? The ritual must be observed, like the playing of the National Anthem before a sporting event. Round and round we go, and when the Supreme Court ultimately settles it, nobody knows.

Paxton asks judge to block EPA water rules in Texas

The basic story:

Texas has asked a federal judge to block enforcement of a new rule that expands authority over which water bodies the U.S. government can regulate.

Texas Attorney General Ken Paxton made the request Tuesday in an 88-page court document. The request comes in the wake of a federal court ruling in North Dakota that blocked enforcement of the rule in 13 states that filed suit in that court. Texas, Louisiana and Mississippi sued the U.S. Environmental Protection Agency and Army Corps of Engineers in a federal court in Houston and aren’t affected by the North Dakota ruling last week.

The May rule would greatly expand federal authority under the Clean Water Act over the bodies of water the EPA can legally regulate, restoring protections to tributaries and wetlands.

That federal ruling was issued two weeks ago, but does not apply to Texas, which is to say that the EPA rule is still in effect here. Texas, along with Louisiana and Mississippi, filed its lawsuit against the new rules a couple of months ago, but there has been no ruling in that case yet. Here’s the AG’s press release on the filing, with other information about that case, if you’re curious. You never know what a judge will do, so we’ll see what happens. WOAI and ThinkProgress have more.

Who needs wetlands?

Development is all that matters, right?

More than 38,000 acres of wetlands vanished in greater Houston over the past two decades despite a federal policy that “no net loss” can be caused by encroaching development.

That’s an area about the size of The Woodlands and Sugar Land combined turned into neighborhoods, office buildings, strip malls, parking lots and roads.

To remedy the damage, federal permits require developers to create man-made wetlands or preserve them elsewhere, often by a ratio of at least 2 acres for every one destroyed. But the Army Corps of Engineers, by statute the nation’s primary steward of wetlands, doesn’t track whether most developers satisfy the requirements of their permits, a recent study found.

More than half of the permit records reviewed by researchers revealed little or no evidence of compliance in an eight-county region. The lack of documentation suggests wetlands probably are not being protected as the federal Clean Water Act requires, said John Jacob, director of Texas A&M University’s coastal watershed program, which worked on the study with the Houston Advanced Research Center.

“The disappearance of wetlands is widespread and pervasive,” Jacob said. “These are the wetlands that improve water quality and reduce flooding, but there is no mitigation.”

Upstream development worsens downstream flooding, said Jim Lester, president of HARC, based in The Woodlands. “It’s crazy to me that we cover up wetlands, and then we spend a lot of money to build retention ponds.”


The study comes amid political anger over new Obama administration rules that aim to clarify which wetlands, streams and tributaries should be protected from pollution and development under the Clean Water Act. Texas and 15 other states have filed suit to block the rules, which were proposed last year by the Environmental Protection Agency and the Corps of Engineers.

Farmers, developers and landowners say the rules are an overreach by the government.

But the researchers say the new rules could help protect wetlands that are hydrologically isolated from bays, rivers, streams or other “waters of the United States.” Since 2001, the Corps’ office for the Houston region has claimed jurisdiction only over wetlands within the 100-year floodplain or with distinct channels.

“We’re not arguing for no development, but we can be smarter about it,” [Lisa Gonzalez, one of the study’s authors and vice president of HARC] said. HARC was started by the late oilman and developer George Mitchell, who used the natural drainage of The Woodlands to structure its development.

The isolated wetlands found in the Katy Prairie and wooded Montgomery County, for example, are prime targets for builders as the region continues to grow. With a projected wave of some 4 million new residents over the next four decades, it’s possible to lose another 100,000 acres of wetlands to development.

“This is the time in the next 20 to 30 years that we really need to save stuff,” she said. “It’s going ever so quick, and we need that mitigation hammer.”

I can’t find a copy of the study on the HARC website; this link is the best I can do. None of this should be a surprise – there’s vastly more incentive to not comply than to comply, and there’s basically no enforcement mechanism. Just keep in mind that when you read or hear about all that booming growth out in the far-flung suburbs, a lot of it is making the flooding problems we see here in the older parts of Houston worse. There’s only so much that ReBuild Houston and all the Mayoral promises you’re going to hear over the next few months can do about that.

Regulating methane emissions

Get all your gas and fart jokes ready, because they’re just going to be inevitable.

The Obama administration’s plan to slash methane emissions will raise costs for the oil and gas industry, forcing energy companies to invest in new pumps, compressors and equipment to prevent leaks of the potent greenhouse gas.

Although the draft regulations advanced by the Environmental Protection Agency on Tuesday chiefly target new oil and gas wells, processing equipment and storage facilities, the four-pronged proposal lays the groundwork for the government to eventually go after methane leaking from existing infrastructure.

Oil and gas companies already reeling from low commodity prices warn the planned rules will throttle domestic energy development and aren’t needed in light of the industry’s voluntary work to plug leaks of methane, the primary component of natural gas.

“The oil and gas industry is leading the charge in reducing methane,” said American Petroleum Institute CEO Jack Gerard. “The last thing we need is more duplicative and costly regulation that could increase the cost of energy for Americans.”

The proposed regulations, set to be final next year, will add to President Barack Obama’s environmental legacy and give the administration a concrete action to talk up at international climate negotiations in Paris this December. They also mark another step in the president’s gradual move away from natural gas, a fuel he previously championed as a cleaner alternative to coal.

But the EPA’s draft rules alone won’t fulfill a White House pledge to pare oil and gas industry methane emissions by 40 to 45 percent from 2012 levels by 2025. The proposed regulations along with a 2012 rule targeting new natural gas wells are expected to reduce the sector’s methane emissions by just 20 to 30 percent.

Janet McCabe, the acting assistant administrator of the EPA’s Office of Air and Radiation, stressed that the proposal is only one step toward the 2025 benchmark. “As we move forward, additional opportunities will be identified to get to that goal,” she said.


Industry officials argue they already have a financial incentive to capture leaking natural gas and bring it to market, though the additional costs of some of those changes, such as updated compressors, valves and controllers, may exceed the potential recovery, making them a harder sell amid today’s low oil prices.

Although methane represents only about 9 percent of human-related greenhouse gas emissions in the United States, the substance is 25 times more powerful than carbon dioxide in warming the atmosphere.

The industry proudly points to an 11 percent decline in methane emissions from natural gas systems since 2005, but some observers expect numbers to start climbing as a result of the oil drilling boom. Recent research suggests many leaks go undetected, so actual emissions could be much higher.

A study in Environmental Science and Technology on Tuesday suggests gathering equipment and processing facilities are leaking natural gas at rates eight times higher than EPA estimates.

Methane emissions also threaten to undo some of the climate change benefits of generating more electricity from natural gas and new EPA rules curbing greenhouse gas emissions from the power sector.

I’m sure the energy industry is doing what it can to prevent leaks and capture the emissions that come from the leaks that do happen on active wells, but that’s not the main problem.

And there’s another methane-leaking elephant in the room: existing and abandoned oil wells. Most of the regulations target new and modified wells, but the U.S. has somewhere on the order of 3 million abandoned wells, many of which are probably leaking methane. Many existing active wells are leaking, too. A 2014 Environmental Defense Fund study noted that by 2018, upwards of 90 percent of methane emissions from the oil and gas sector could come from wells built before 2012.

Who’s going to be responsible for those? And what does it mean for Texas?

Just as Texas leads the country in overall greenhouse gas emissions, it’s also a particularly large source for this potent warming gas. That’s in part because two major methane-emitting activities — agriculture and oil and gas drilling — are huge here. The state pumps about a third of the country’s oil and a quarter of its natural gas.

Oil and gas industry representatives have pointed to EPA data showing total greenhouse gas emissions in the country have dropped amid a drilling surge to suggest that fracking yields climate benefits — as cleaner burning natural gas replaces coal-fired power.

But measuring nation-wide methane emissions isn’t easy. Several recent peer-reviewed studies suggest that the federal government is vastly underestimating methane emissions, particularly in heavily drilled parts of the country.

In July, a series of studies centered on North Texas, for instance, found that the gas-rich Barnett Shale was leaking 50 percent more of the gas than previously thought. Human error and faulty equipment accounted for most of the emissions, the studies found, with most coming from a small percentage of sites.

Opponents of the rules say emissions still appear to be falling over time, claiming that Obama is unfairly targeting an industry that’s only responsible for a portion of the methane pollution. The agriculture sector — through cow farts and burps, for instance — emits lots of methane too. The EPA has adopted a voluntary program aimed to address that problem.

I mentioned the fart jokes, right? Cows are better organized than you might think. I’m thinking those “voluntary” regs may need to become more enforceable.

One other thing:

According to the EPA, 29 percent of U.S. methane emissions come from the oil and gas sector. Next is the agriculture sector at 26 percent: livestock emits methane through normal digestive processes. Landfills come in third place with 18 percent of the pie.

Another reason why I want to see landfills get closed, not opened. If that means treating recycling as a utility and subsidizing it as needed, I’m okay with that. Beyond all this, it’s just a matter of getting the rules finalized, then going through the inevitable litigation, because that’s what we do. Consider that another reason why the power of appointing federal judges is a big deal in the Presidential race.

Not everyone wants Texas to sue the EPA again

It won’t mean anything to those that are hell-bent on suing, but it is worth keeping in mind.

President Obama is set to unveil the nitty-gritty of his sweeping, state-by-state plan to fight climate change this week — his most determined effort yet to tackle the effects of global warming by reshaping the nation’s power sector.

When he does, no one doubts that Texas will sue.

Taking the federal government to court over environmental regulations has been a palpable source of pride and political capital for Gov. Greg Abbott, who filed dozens of lawsuits against the U.S. Environmental Protection Agency as attorney general. Both he and his successor, Ken Paxton, have promised the same approach with the so-called Clean Power Plan, which seeks to drastically cut carbon dioxide emissions from the nation’s power plants.

But some of those who will bear the brunt of complying with the new regulations are calling that knee-jerk reaction shortsighted.

Some Texas electric utilities are joining environmentalists in hoping policymakers — after securing another campaign trail talking point — eventually will craft a strategy to meet the new requirements to avoid being slapped with a mystery plan devised by the EPA and to bolster regulatory certainty.

“I think it’s always better for the state to participate in the plan rather than having the feds do the plan and tell you how it’s going to be,” said John Fainter, president and CEO of the Association of Electric Companies of Texas, referencing a similar situation in 2013 involving greenhouse gas permits. “So I hope when the litigation is concluded that there’s time and willingness to do so.”


Under a draft proposal outlined last year, Texas — home to about 20 operational coal-fired power plants — would have to slash roughly 200 billion pounds of carbon dioxide emissions in the next two decades. The state’s ultimate target will become known when the EPA unveils its final rule, expected as early as Monday.

The plan already has drawn one lawsuit from more than a dozen coal-friendly states. But a federal appeals court dismissed the challenge in June, concluding it was premature since the EPA had yet to finalize the rule.

While not part of that early lawsuit, the Texas attorney general’s office has spent $24,000 devising another that it has yet to file, according to information obtained by the Tribune under a public records request.

Initially, states were to submit plans by next summer detailing how they would reach compliance with the new standards by 2020. Word on the street, said Fainter, is that the EPA may give states extra time, responding to concerns from some utilities and states.

An EPA spokeswoman would not confirm or deny that change, but if true Fainter said it would make even less sense for Texas not to come up with a plan. Some utilities agree.

“If, in fact, the states are afforded more time to craft their (implementation plan), it seems logical that they would want to avail themselves of this time to develop a solution which addresses the individual and unique situation of each state,” said Brett Kerr, a spokesman and lobbyist for Calpine, the largest independent power producer in the nation.

Texas doesn’t “necessarily have to stand alone” and could team up with other states to craft a compliance plan if it makes the process smoother, Kerr said. “We believe that the state would be best served by participating in the process.”

See here, here, here, and here for the background. It would be nice to think that Texas could participate in the process rather than file another pointless lawsuit, but then it would also be nice to think I could eat pizza and ice cream every day while losing weight. Fish gotta swim, birds gotta fly, Texas AGs gotta file lawsuits against the public interest. It’s the way of the world. The plan has now been released, so cry havoc and let slip the lawyers of war. We’ll know in a couple of years if this is going anywhere or not.

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.

Texas sues the EPA again (and again, and again, and…)

Stop me if you’ve heard this one before.

Attorney General Ken Paxton on Wednesday filed a lawsuit over the agency’s rejection of parts of a Texas clean air program, launching the state’s second battle against EPA regulations in less than two weeks.

Texas has sued the agency 21 times since President Obama took office in 2009.

This challenge centers on how Texas handles pollution that spews from industrial plants during facility startups, shutdowns and equipment malfunctions.

Historically, regulators exempt pollution from those events from overall limits, letting plants to emit more than their federal permits allow. But environmental groups have protested this policy, claiming it has let plants discharge millions of extra pounds of dangerous air pollutants each year.

A federal appeals court in April 2014 found some of the environmental groups’ points valid, prompting the EPA in May to require Texas and 35 other states to revisit how they deal with such events.

The new state plans are due in November 2016.

But Paxton said that because the EPA had approved Texas’ plans in 2010, before the environmental challenge, the agency’s latest directive amounted to “an abrupt and unwarranted about-face.”

Whatever. I guess Paxton has to get all those lawsuits in quickly, before defending his own butt becomes his main job in life. As the story notes, Texas was one of several states to file suit over the EPA’s Clean Water Plan, and there will be another suit coming next month when the EPA’s Clean Power Plan rules get released. Too bad all this litigation isn’t an economic catalyst, we could use a little help on that front.

Now Texas is suing the EPA over its clean water plan

Another day, another anti-environmental lawsuit. It’s what we do.

For the 20th time since the Obama administration took office in 2009, the federal Environmental Protection Agency is facing a lawsuit from Texas.

Joined by Louisiana and Mississippi, Texas is challenging the “Waters of the U.S.” rule which the EPA finalized Monday. That rule is aimed at better defining the scope of bodies of water protected under the Clean Water Act. Members of the farm lobby and Republican leaders say the rule will lead to more regulation and a takeover of private property.

In a statement, Attorney General Ken Paxton called the rule “so broad and open to interpretation that everything from ditches and dry creek beds, to gullies, to isolated ponds formed after a big rain could be considered a ‘water of the United States.'”

The EPA has claimed it does not plan to expand the waters under its jurisdiction, only to clarify what they are.

“The very structure of the Constitution, and therefore liberty itself, is threatened when administrative agencies attempt to assert independent sovereignty and lawmaking authority that is superior to the states, Congress, and the courts,” the states’ lawsuit reads.

I’m reminded of a bit of dialog from a classic TV show:

Giles: It’s the end of the world.
Buffy, Willow, and Xander: Again?!

I’m just saying. The usual suspects scored a victory the other day, but overall the EPA and the Obama administration have done very well. We’ll see how it goes this time. ThinkProgress has more.

SCOTUS gives polluters a win


Martin Lake coal plant

Martin Lake coal plant

t emissions of mercury and other hazardous air pollutants, but it may only be a temporary setback for regulators.

The justices split 5-4 along ideological lines to rule that the Environmental Protection Agency failed to take cost into account when it first decided to regulate the toxic emissions from coal- and oil-fired plants.

The EPA did factor in costs at a later stage, when it wrote standards that are expected to reduce the toxic emissions by 90 percent. But the court said that was too late.

The rules, which took effect in April, will remain in place while the case goes back to a lower court for the EPA to decide how to account for costs, environmental advocates say.

They were supposed to be fully in place next year. The issue was whether health risks are the only consideration under the Clean Air Act.


Writing for the court, Justice Antonin Scalia said the EPA was unreasonable in refusing to consider costs at the outset. He was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito.

In dissent, Justice Elena Kagan said it was enough for EPA to consider costs later in the process.

“Over more than a decade, EPA took costs into account at multiple stages and through multiple means as it set emissions limits for power plants,” Kagan said.

She was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

The EPA said it is reviewing the court’s decision and will determine any appropriate next steps once a review is completed.

“EPA is disappointed that the Supreme Court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance,” EPA spokeswoman Melissa Harrison said.

Indeed, more than 70 percent of power plants already have installed controls to comply with the rules, said Vicki Patton, an attorney at the advocacy group Environmental Defense Fund.

“EPA already has an economic analysis that it can rely on to demonstrate that the public health benefits of the standards far outweigh the costs,” Patton said.

See here and here for the background. I would obviously have preferred a win here, but at least the EPA will get another shot at this. As noted in the story and acknowledged by ERCOT, most power plants are already there, and there are (in Texas, at least) no new coal-fired plants about to come on line. As Vox explains, the national effect of this ruling is likely to be minimal as well.

That’s the only thing at stake here: how long these 22 plants get to keep spewing [hazardous air pollutants, HAPs]. That’s not nothing — especially to the vulnerable populations exposed to those toxic pollutants — but it amounts to a mopping-up operation.

You might note an irony here. The entire Supreme Court case is premised on the fact that [mercury and air toxins, MATS] regulations are “the most expensive ever.” Industry claims it’s outrageous that EPA didn’t consider these extraordinary costs, which it says could cause blackouts and destroy the power sector and leave the US a smoking ruin.

Oh, but, by the way, while we were debating this, the power sector went ahead and complied with the regulations. Notice any blackouts? Any big bankruptcies in the power sector? Any economic devastation? No. As usual with air pollution rules, when the power sector quits complaining and starts complying, the costs turn out to be much lower than anyone anticipated. This case was a fight over a question that’s already been settled by facts on the ground.

So there’s that. The bad news is that the coal-fired plants we have now in Texas are chock full of mercury and other toxins, which they release into the atmosphere every day. So every extra day we have to wait for the new rules means that much more poisonous filth in our environment. Isn’t that nice? Daily Kos, Kevin Drum, and Ed Kilgore have more.

Local control still under assault

Sucks to be us, Harris County.

San Jacinto River waste pits

With Harris County in its crosshairs, the Senate on Wednesday tentatively approved legislation that could make it tougher for Texas Counties to sue big-time polluters.

If finally passed, House Bill 1794 would notch another victory for a wide range of business groups in a legislative session that’s been kind to industry at the expense of environmentalists and advocates for local control. The proposal would set a 5-year statute of limitations and cap payouts at about $2 million when counties sue companies that have fouled their water or air.

A 24-6 vote with no debate set the bill up for a final Senate vote. The legislation already sailed through the House, pushed by Rep. Charlie Geren, R-Fort Worth.

Proponents say that curbing civil penalties assessed on top of those doled out by state regulators would bolster economic certainty for companies and allow them to focus resources on cleaning up their messes.

“This bill is about enforcing a policy that encourages people to do the right thing and not punish them,” said Sen. Kelly Hancock, R-North Richland Hills, who carried the proposal in the chamber.

But critics say the Texas Commission on Environmental Quality (TCEQ) doesn’t do enough to hold polluters accountable, and that limiting local suits would encourage more pollution that jeopardizes public health.

“It is a terrible bill, and it is designed to protect polluters,” said Terry O’Rourke, special counsel with the Harris County Attorney’s office. “That’s all it is: It is a polluter protection bill.”


Under HB 1794, local governments and the state would evenly split the first $4.3 million awarded in a suit, and the state would pocket any amount above that limit.

County officials say the cap on local government collections would make it difficult, if not impossible to prosecute the most complex, egregious cases of pollution, because contingency fee lawyers would not sign on for such lower pay.

The counties, not the state typically initiate such actions, said O’Rourke, who has been prosecuting environmental cases since 1973.

“It is only by contingent fee litigation that you can prosecute global corporations that are operating in Houston – Harris County, he said. “You can’t attract people to that if you’re going to kill them with contamination.”

Anyone who thinks that this bill will be any kind of positive for counties – not just Harris, though it is the main target of this bill – is living in a fantasyland where voluntary compliance with environmental regulations would be sufficient. I’ve said it before and I’ll say it again, if the TCEQ wasn’t a giant bag of industry-coddling suck, then lawsuits like these wouldn’t be necessary. All this will do is push the cost of pollution from the polluters where it belongs to the population at large. Hope no one reading this lives close to a site that won’t get cleaned up now.

And it’s not just county governments that are taking it in the shorts.

Norman Adams isn’t the kind of guy who is sensitive to smells, or much else. He wears cowboy boots and boasts of changing lots of his children’s and grandchildren’s diapers without gagging.

But the smell that wafts on the southerly breeze from a waste treatment processor toward buildings he owns on West 11th Street is “like an open septic tank, or worse.”

“Abusive,” he called the stench in a letter to the Texas Commission on Environmental Quality opposing an application by Southwaste Disposal, to increase capacity at its liquid waste treatment facility near Houston’s booming Timbergrove neighborhood.

Adams begged regulators not to grant the expansion, instead requesting a “contested case hearing.” Such proceedings allow citizens who convince TCEQ that their health or pocketbook would be impacted by a permit to compel the company to demonstrate it can comply with environmental requirements.

But legislation awaiting Gov. Greg Abbott’s signature would make industry-friendly changes to the proceedings. It would set time lines to speed up the process, restrict who qualifies to ask for hearings and – most significantly – shift the burden of proof from companies seeking the permits to people opposing them.

The bills, which sailed through the Senate and House, have the backing of industry leaders who say contested case hearings make it harder for Texas to attract businesses by injecting uncertainty and expense into the process.


The bills tilt “the balance in favor of the polluters,” said Jim Marston, regional director with the Environmental Defense Fund’s Texas office. He also warned that Texas could jeopardize losing the Environmental Protection Agency’s authorization to administer permitting programs if signs the bills.

EPA spokesman Joe Hubbard on Tuesday said the legislation creates a “problematic” legal presumption. “We can’t speculate what action the (EPA) should take if the bills are passed and signed into state law,” he said.

See here and here for the background. I’d feel sorry for Norman Adams, but he’s a well-known Republican activist, so in a very real sense he’s getting the government he deserves. I do feel sorry for his neighbors, and for everyone else that will be put in this position. In Houston, where residential development is encroaching on former (and sometimes still active) industrial areas, that could be a lot of people. But hey, at least our ability to attract more pollution-oriented businesses will remain strong.

Texas plans to sue over EPA’s latest clean air plan

So what else is new?


Attorney General Ken Paxton said Tuesday that he plans to sue the Obama administration over the proposed “Clean Power Plan,” its plan to combat climate change by slashing carbon emissions from power plants.

“Texas has proven we can improve air quality without damaging our economy or Texans’ pocketbooks,” the Republican said in a statement, claiming the rules would threaten the power grid and increase electric prices. “I will fight this ill-conceived effort that threatens the livelihood and quality of life of all Texans.”

Using those arguments over the past year, the state’s Republican leadership has loudly panned the proposal, which would require the state to cut close to 200 billion pounds of carbon dioxide in the next two decades however it sees fit.

Environmental and health advocates say limiting the greenhouse gas would help fight climate change, bolster public health and conserve water in parched Texas, and they suggest that opponents are exaggerating the economic burdens.

The federal Environmental Protection Agency suggests that Texas could meet its goal through a combination of actions: making coal plants more efficient, switching to cleaner-burning natural gas, adding more renewable resources and bolstering energy efficiency. Under the proposal, Texas could also adopt a “cap and trade” program – a scheme in which companies bid on the right to pollute.

The federal proposal is scheduled to become final in June, and Texas would have one year to submit its plan. But some watching the debate expect the EPA to push back the deadline amid pressure from states and other critics.

If Texas ignores the rules, the EPA will construct its own plan for Texas, though the agency has not said what that might look like. Democrats and others call that approach risky and suggest it would beckon more stringent requirements.

Bills that would direct Texas regulators to adopt a plan are nearing their death in the Legislature.

Fossil fuel interests and 15 U.S. states – not including Texas – have sued the EPA over the proposed rules in a case heard last week in federal court. Judges appeared skeptical of a challenge to rules that haven’t been finalized.

See here, here, and here for the background. I have to say, if Paxton managed to deliver that line about Texas improving its air quality on its own with a straight face, it will be the most impressive thing he ever does in office. Texas has fought the EPA multiple times in recent years with little to show for it, with another fight currently before the Supreme Court. Doesn’t mean they’ll lose this time, but it does give one some hope. It would of course be cheaper and easier and better for everyone if they would give up this fight and adopt rules that the state is already most of the way towards meeting anyway, but like most things in life that comes down to winning elections, and we know how that has gone around here.

Meanwhile, if you don’t like the idea of the EPA wielding power over Texas, you won’t like this, either.

Texas appears poised to enact environmental legislation that could trigger an unintended consequence: more federal oversight.

Fast-moving bills that would curb opportunities for public protest so state environmental permits can be issued more quickly have drawn the attention of the federal Environmental Protection Agency, long the state’s political punching bag.

The agency says it has concerns about the legislation, and may need to review whether it jeopardizes permitting authority the EPA has granted Texas.

Senate Bill 709 would scale back contested case hearings, a process that allows the public to challenge industrial applications for permits at the Texas Commission on Environmental Quality (TCEQ) — such as those allowing wastewater discharges or air pollution.

Similar versions of the bill pushed by Sen. Troy Fraser, R-Horseshoe Bay, and Rep. Geanie Morrison, R-Victoria, have sailed through the House and Senate, rankling consumer and environmental groups.


The EPA says it shares concerns about the bill, which would overhaul the hearings process in a variety of ways. It would give the agency sole discretion to determine who is an “affected person” who could ask for a hearing; set an 180-day time limit for the proceedings (with potential exceptions); narrow the issues the public could argue; and arguably shift the burden of proof from the company to the public.

“EPA is concerned that as currently drafted, [the legislation] could be read to impact the applicability of federal requirements to federal permitting programs being implemented by the TCEQ,” David Gray, director of external affairs for the EPA’s Dallas-based regional office, recently wrote to Rep. Eddie Rodriguez, D-Austin, who had asked for input.

Gray called the shift in the “burden of proof” as particularly problematic, adding that the EPA should review the legislation to ensure that it doesn’t “interfere with federal requirements or alter the basis for one or more program requirements.”

See here for the background. It’s like we can’t help ourselves sometimes, isn’t it?

And finally, on a related note:

Kansas and Texas will file amicus briefs supporting Florida in its lawsuit against the federal government over Medicaid expansion, Gov. Rick Scott announced Monday.

Scott filed suit last week, alleging that the federal government is “coercing” the state into accepting Medicaid expansion by witholding the extension of a different Medicaid program. The Low Income Pool brings $1.3 billion in federal funds to the state to pay hospitals for care for the poor and uninsured and is set to expire June 30.

“I am glad Kansas and Texas are joining our fight against the Obama Administration for attempting to coerce Florida into Obamacare expansion by ending an existing federal healthcare program and telling us to expand Medicaid instead. The US Supreme Court has already called this sort of coercion tactic illegal,” Scott said in a released statement.

In granting a one-year extension last year, federal officials stated they would not extend it again without significant changes. A recent letter from federal officials to the state clearly suggested the fate of LIP was tied to Medicaid expansion but officials with the Center for Medicare and Medicaid Services have also said Florida is free to expand Medicaid or not as it wishes.

See here for the background. Daily Kos has characterized the Florida lawsuit as being about refusing federal Obamacare dollars while demanding federal non-Obamacare dollars, which strikes me as apt. Easy to see why it was irresistible to Texas to join in. Ed Kilgore has more.

Once again to SCOTUS for Texas and the EPA

Plus ca change, and all that.

Texas again went head-to-head with the Environmental Protection Agency before the U.S. Supreme Court on Wednesday, this time challenging federal limits on the emission of pollutants like mercury, acid gases and other toxic metals from power plants.

Joined by 20 other states, Texas is arguing that the EPA didn’t properly consider the $10 billion annual price tag of its regulations, which “threatens to drive a number of coal-fired electric utilities out of business.” The rules target more than 50 coal- and oil-fired power plants across Texas, and industry and labor groups are also challenging them.

The EPA counters that Congress never directed the agency to consider costs the way Texas and other states think it should have. And in any case, the agency argues, the benefits far outweigh the costs. The agency asserts that the rule prevents up to 11,000 premature deaths per year. Mercury, a highly toxic chemical that can build up in the human body, is linked to brain abnormalities and developmental disorders.

“The [mercury] rule will importantly reduce serious hazards to the public,” the American Academy of Pediatrics wrote in a legal brief supporting the EPA. “Those hazards … are particularly acute for vulnerable groups, including children who can suffer debilitating, lifelong effects” from toxic pollution.


At the heart of the case is whether deeming regulations “appropriate and necessary” should include an aggressive consideration of costs early in the process. The plaintiffs say yes; the defendants say no. The D.C. Circuit Court agreed with the defendants last year, pointing out that the courts have previously said the EPA doesn’t need to consider costs that way unless Congress directly tells it to.

If the high court disagrees, a key issue will be how the benefits of environmental regulations should be quantified. Right now, the EPA says the benefits of the mercury rule could total as much as $80 billion, which dwarfs the estimated $10 billion cost.

Opponents say the $80 billion figure is misleading. Only $4 billion to $6 billion of it comes directly from reducing mercury pollution, they argue; the rest is a “co-benefit.” That’s because removing mercury from the air also removes the particulate matter it’s often attached to — leading to increased health benefits.

During oral arguments on the case Wednesday, Chief Justice John Roberts said that type of co-benefit calculation “raises the red flag” and looks like the EPA is trying to reduce particulate pollution through the back door. That would be an “end-run” around a separate part of the Clean Air Act that the agency must follow for that type of pollution, he said.

“It’s not an end-run, and it’s not a boot strap,” responded U.S. Solicitor General Donald Verrilli, who was defending the EPA. Calculating co-benefits is “a perfectly appropriate way to deal with getting at metals and other pollutants that would be hard to get at directly,” he said.

I’m sure there’s some subtle legal reason why removing the particulates attached to the mercury shouldn’t count, but I’m too simple a soul to see the logic of it. That won’t be an issue if SCOTUS agrees with the DC Circuit about the bigger question of whether or not the EPA had to consider costs in the first place. I’m sure you’ll be shocked to hear that Anthony Kennedy is the swing vote. Let’s hope we get the good Justice Kennedy this time. The good news is that Texas has an abysmal won-lost record on matters like these. But there’s always a first time, so let’s not get too confident.

Yes, we can cut back on coal

It won’t be that hard, and it will come with a lot of benefits.

Texas burns more coal than any other state in part because of its large and growing population and industrial base. But the carbon-intensive fuel accounted for less than 40 percent of the state’s power use last year.

The federal proposal calls for Texas to reduce its carbon emissions 39 percent from 2005 levels by 2030. In contrast, West Virginia and Kentucky, which generate nearly all of their power from coal, would be required to make cuts of 20 and 18 percent, respectively.

Some Texas officials have questioned whether the proposed reduction is even possible without a radical shift in generation toward natural gas, wind and solar and a stronger push to use energy more efficiently. Texas’ power grid operator has said about half of the state’s coal-burning capacity might be retired under the federal plan.

But some experts say Texas wrongly views the rules as an existential threat to its energy-heavy economy. Instead, they argue, the state could achieve the federal targets without a lot of new initiatives.

The disconnect persists because “this regulation hits the status quo harder than any other, and we have powerful economic interests in this state wanting to maintain the status quo,” said Thomas McGarity, a University of Texas at Austin law professor who specializes in government regulation.

The combination has caused some operators to decide whether to retire their coal plants or retrofit them with expensive new pollution controls.

In its formal comments on the proposal, the Sierra Club said Texas could achieve the EPA’s proposed target by retiring 10 coal-burning power plants that are more than 40 years old and replacing them with natural gas-fired plants.

“We talk about how there is a war on coal, and that’s true,” said Victor Flatt, a professor of environmental law at the University of North Carolina at Chapel Hill. “But there isn’t a war on fossil fuels. This rule is favorable to natural gas. In the end, I don’t think it will have the huge economic impact that people say it will.”

But there are concerns that the EPA will require states to make emissions cuts too quickly, leading to unintended consequences.

See here and here for the background, and remember again that reducing the use of coal for power generation would also greatly reduce water usage, which would have ancillary benefits for Texas. The crux of the complaint by the TCEQ seems to be that it’s not fair to ask more of Texas than some other states, including Kentucky and West Virginia, which produce the most coal but which use much less of it since they’re so much smaller than we are. I guess “Texas exceptionalism” stops when the discussion turns to responsibilities. I don’t know about you, but I think the great state of Texas is more than up to the task of being a leader in reducing coal consumption. Too bad the TCEQ – and I presume more than a few Republican officeholders – think so little of our state’s abilities.

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.

Here come the new ozone standards

I have three things to say about this.

Over the objections of Texas officials, the Obama administration on Wednesday proposed a long-delayed rule to slash levels of ozone – a smog-forming pollutant known to worsen asthma, lung disease and heart conditions.

The regulation is the latest example of the federal Environmental Protection Agency’s use of the Clean Air Act to crack down on the pollution wafting from factories, power plants and tailpipes.

“Bringing ozone pollution standards in line with the latest science will clean up our air, improve access to crucial air quality information and protect those most at risk,” Gina McCarthy, the EPA administrator, said in a statement. “Fulfilling the promise of the Clean Air Act has always been EPA’s responsibility.”

The agency plans to hold three public meetings and open up a 90-day commenting period before finalizing the rule by Oct. 1, 2015.

Bucking the scientific community’s consensus, Texas environmental regulators have suggested that the proposed limits on ozone — which forms when emissions from cars and coal plants mix with other airborne compounds in sunlight — may not improve public health. They have pushed back against any efforts to lower the standard, suggesting such a move would cost too much.

“I am disappointed, but not surprised, that the EPA has proposed these new, short-sighted regulations,” Bryan Shaw, chairman of the Texas Commission on Environmental Quality, said in a statement. “Environmental regulations should be based on good science, common sense and the certainty that they will achieve the stated health benefits. The EPA proposals fail miserably at meeting any of those metrics.”


Depending on the severity of their ozone problems, regions would have to meet the lower standards by anywhere from 2020 to 2037.

But scrubbing more ozone from the air — through extra pollution controls, air monitors and retrofitted industrial plants — could cost trillions nationwide, industry-funded studies have estimated.

“This new ozone regulation threatens to be the most expensive ever imposed on industry in America, and could jeopardize recent progress in manufacturing,” Jay Timmons, CEO of the National Association of Manufacturers, said in a statement.

Michael Honeycutt, the TCEQ’s chief toxicologist, is among those who question whether lowering ozone levels would improve public health.

“After an in-depth review of the EPA’s analysis, as well as a thorough study of the relevant scientific literature, the TCEQ has concluded that there will be little to no public health benefit from lowering the current [ozone] standard,” Honeycutt wrote in an article for the TCEQ’s October newsletter. “Why regulate something that is not really going to have a benefit?”

For instance, Honeycutt argues that ozone levels have gone down dramatically in the past two decades, but asthma diagnoses have gone up. In Texas hospitals, Honeycutt said, asthma diagnoses actually increase in the winter when ozone levels are relatively low.

Several other scientists who reviewed his article have called it a misleading effort to equate correlation and causation.

1. I’m sorry, but the TCEQ and the industries that it coddles have no credibility on this. Neither the public interest nor objective fact are the TCEQ’s concern. It may be that the EPA is being too aggressive in combating ozone, and it may be that the likely benefit of doing so is not worth what the cost will be. I’m not qualified to evaluate that. What I do know is that no one should take the TCEQ’s word for it.

2. Whichever standard is adopted – the more-lenient 65 to 70 parts per billion standard, or the stricter 60 parts per billion standard – achieving it is not going to be easy.

For Houston, once the nation’s smog capital, the announcement heralded a harsh reality: even after decades of efforts to scrub the lung-damaging pollutant from the sky, the city’s air is not clean enough to breathe safely and might never be.

“All the easy cuts have been made, and there are very few places we can go to make meaningful cuts,” said Taylor Landin, vice president of public policy for the Greater Houston Partnership, a business association. “From our perspective, it’s only fair that they would consider cost.”


For Houston to reach the proposed mark, air-quality experts said the state might need to impose tougher emissions limits for industrial permits and do more to replace older and dirtier diesel engines for trucks and cranes at the Port of Houston.

The proposed limit poses a daunting challenge for Houston, which is violating the current standard even as its best year for air quality draws to a close. The region is on track to finish 2014 at 80 parts per billion.

“To be effective, and meet this new standard, it will take great cost and effort to reduce emissions from every individual and business in the region,” said Craig Beskid, executive director of the East Harris County Manufacturers Association.

Even environmentalists questioned whether Houston can hit the proposed target. But they said the tougher rule is worthwhile because it would reduce ozone-forming pollution blowing into the region. The EPA estimates that on the region’s smoggiest days, 40 percent of its ozone forms naturally or blows in from faraway sources.

“Would it be possible for Houston in a vacuum? I’m not sure,” said Adrian Shelley, executive director of Air Alliance Houston, an advocacy group. “But it could be possible if the issue is tackled at a larger level.”

I’ve made this point before, but it’s worth repeating that there’s already a cost for the level of pollution that we have now. It’s just that the polluters themselves don’t bear the brunt of that cost – it gets passed on to the public, in a very uneven and unequal fashion. If the EPA’s regulations force the pollution producers to bear those costs, whether they pass them along or not that will be a more equitable situation. And it should be noted that in this case, the polluters includes everyone who drives. We are highly unlikely to meet any new standard without addressing vehicular emissions. That’s going to require some significant changes, and I don’t think we’re ready for that. Ready or not, it’s coming.

Texas Attorney General Greg Abbott, the incoming Texas governor, has sued the EPA at least 19 times. His office did not immediately respond to requests for comment.

3. Alas for Greg Abbott, these changes will not be implemented in time for him to be anything more than a cheerleader for another lawsuit. That will fall to Ken Paxton, assuming he hasn’t resigned in disgrace by the time a suit is ready to go. Not mentioned in that statistic above is Abbott’s won-lost record versus the EPA. I don’t have an exact figure, but I’m pretty sure he lost more than he won. I’d expect Paxton or whoever gets appointed to replace him to continue that tradition. The EDF has more.

EPA climate change plan would save water

Well, what do you know?


As state regulators fret about how President Obama’s effort to combat climate change would affect the Texas power grid, a new study says the rules would be simpler to adopt than those regulators suggest – and that it would save the state billions of gallons of water annually.

In an analysis released Wednesday, CNA Corporation, a nonprofit research group based in Arlington, Va., said the federal proposal – which requires states to shift from coal power to cut carbon emissions – would slash water use in the Texas power sector by 21 percent. That would save the drought-ridden state more than 28 billion gallons of water each year.

“It’s a surprising finding,” Paul Faeth, the report’s author, said in a statement. “People don’t often associate water conservation with [carbon] cuts, but for Texas, they work together.”


CNA Corporation’s analysis comes two days after the Electric Reliability Council of Texas (ERCOT), the state’s grid operator, said the proposal would threaten reliability and raise energy costs by as much as 20 percent by 2020 – not including the cost of new power lines needed to keep the grid running.

The CNA report, which relied on a model ERCOT has used in the past, said shifting away from water-guzzling coal power plants and boosting energy efficiency would ease Texas’ water woes.

Compared to Texas’ grid operator, CNA painted a rosier picture of price and reliability effects. With big investments in natural gas and wind power, Texas is already on pace to meet 70 percent of its target by 2029, according to the study. Improving energy efficiency could move the state the rest of the way.

The federal proposal would increase the per-megawatt cost of electricity by 5 percent by 2029, but cut total system costs by 2 percent, the group said.

“We find that the state will be able to meet the final and interim targets with modest incremental effort,” the study said.

See here for the background. The CNA report page is here, the press release is here, the executive summary is here, and the full report is here. It’s not clear to me if CNA was invited by someone to review the EPA plan as it affects Texas or if they did it on their own, but this is a strong argument for going along with what the EPA recommends rather than filing another frivolous lawsuit. The considerable water savings is enough by itself to make this worthwhile.