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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.

Back to court for the Clean Power Plan

Here we go.

One of the late Justice Antonin Scalia’s final acts on Earth may have been to doom it.

Last February, on the final Tuesday of Scalia’s life, the Supreme Court handed down a 5–4 decision suspending the Obama administration’s Clean Power Plan. It was a surprising development — a lower court panel that included a conservative Republican judge previously denied a request to stay this plan — and a chilling development for anyone who cares about the planet. The Clean Power Plan is the Obama administration’s most ambitious effort to fight climate change. And it is difficult to exaggerate the consequences if these efforts fail:

In the relatively short term, the Environmental Protection Agency predicts that the Clean Power Plan will “avoid thousands of premature deaths and mean thousands fewer asthma attacks and hospitalizations in 2030 and every year beyond.” In the longer term, major cities could be swallowed by the ocean. Displaced residents will trigger a worldwide refugee crisis. Entire regions of the United States could be converted into a permanent Dust Bowl. The sheer magnitude of the catastrophe will rival any tragedy that has faced humanity since the Book of Genesis.

Scalia’s vote to stay the Clean Power Plan was enough to delay it, but not enough to destroy it. Now, however, the effort to permanently kill the plan is about to face its first big test.

A ten judge panel of the United States Court of Appeals for the District of Columbia Circuit — arguably the second-most powerful court in the country — will hear arguments on the fate of the plan on Tuesday. With Scalia dead, and the Supreme Court evenly split between Democrats and Republicans, the D.C. Circuit’s decision could be the last word on the plan’s legality.

While Scalia did not live to cast a vote eradicating the plan, his ghost still haunts this case. It lingers over the parties’ briefs, casting doubt upon long-settled doctrines viewed as rock solid just a few years ago. West Virginia v. United States Environmental Protection Agency, the challenge to the Clean Power Plan, is the culmination of a years-long effort by conservatives to hobble the executive branch — an effort Scalia started to embrace during his final years on the Court. And, if the Clean Power Plan falls, it will be because this effort scored just enough victories during the twilight of Scalia’s life.

See here, here, and here for the background. Needless to say, Texas is leading the charge in this litigation.

Texas Attorney General Ken Paxton on Monday accused the U.S. Environmental Protection Agency of trying to “force Texas to change how we regulate energy production,” through what he called an “unprecedented expansion of federal authority.”

“What we need is more reliable energy — not less, and the EPA is trying to stop that,” the Republican said while appearing on a panel in Washington, D.C.

Paxton specifically targeted the Clean Power Plan, President Obama’s state-by-state effort to fight climate change by shifting away from coal power to cleaner-burning natural gas and renewable resources.

His appearance on the panel, organized by the conservative Texas Public Policy Foundation, came one day before the U.S. Court of Appeals for the District of Columbia is to hear four hours of oral arguments over the carbon dioxide-cutting rule. Those watching the litigation say the outcome could make or break Obama’s legacy on climate change.

[…]

The regulations would force states to slash carbon dioxide emissions from power plants however they see fit — accelerating a shift from coal that started years ago. Carbon dioxide is a potent greenhouse gas that directly contributes to climate change.

For Texas — the nation’s biggest carbon dioxide emitter by far — that would mean cutting an annual average of 51 million tons of emissions, down about 21 percent from 2012 levels.

Paxton, Gov. Greg Abbott and other Texas Republicans have argued that doing so would cost the state jobs, push electricity costs too high and threaten reliability on the grid. They say the regulations subvert state power.

Eighteen states and a litany of health and environmental groups have joined the Obama administration in defending the Clean Power Plan.

On Monday, one environmental group criticized Paxton for championing coal interests while challenging the regulation.

“Dirty coal just doesn’t make sense anymore, economically or environmentally, but Attorney General Paxton appears to want to go down with a sinking ship,” Luke Metzger, director of the advocacy group Environment Texas, said in an email. “Texans support transitioning to clean energy and the Clean Power Plan is helping make that possible.”

Proponents of the rules, backed by early analyses, suggest that market forces and existing policies alone would push Texas most of the way toward its target.

One study released in May predicted that coal generation would shrink from about 28 percent of state power generation to 6 percent by 2035 — not factoring in the controversial federal regulation.

Aside from inflation, Texans would see “virtually no price increase” if natural gas and solar prices continue to get cheaper as some expect, concluded the study by the Brattle Group, a global research firm that often crunches numbers for Texas regulators. Funding for that study came from the Texas Clean Energy Coalition, which supports natural gas and renewable energy sources.

boy, nothing says “forward-thinking” like protecting the interests of coal-burning power plants. The DC Court’s decision here is very likely to be the final word. If it comes down to a Supreme Court that has a ninth member that was appointed by President Trump, it won’t matter anyway since the EPA will cease enforcing environmental regulations because global warming is a myth. So, you know, no big deal. The Observer and the Chron have more.

Full DC Circuit Court to review Clean Power Plan

From ThinkProgress, an update on yet another federal lawsuit involving Texas.

The Clean Power Plan will get its day in court, but in September, not June — and by the full en banc D.C. Circuit Court of Appeals, not the court’s normal three-judge panel that was scheduled to hear it in just over two weeks.

West Virginia v. Environmental Protection Agency is one of the most important environmental cases in almost a decade. The case will decide whether the EPA violated the law when it finalized its carbon rule to regulate greenhouse gas emissions from the power sector under the Clean Air Act.

So Monday evening the D.C. Circuit Court of Appeals announced it is bypassing its planned June 2 oral arguments over the Obama administration’s signature climate policy.

“It is ORDERED, on the court’s own motion, that these cases, currently scheduled for oral argument on June 2, 2016, be rescheduled for oral argument before the en banc court on Tuesday, September 27, 2016 at 9:30 a.m.,” the D.C. Circuit’s announcement read. “It is FURTHER ORDERED that the parties and amici curiae provide 25 additional paper copies of all final briefs and appendices to the court by June 1, 2016. A separate order will issue regarding allocation of oral argument time.”

See here and here for the proximate events that led to this, and here for all prior blogging on the Clean Power Plan. The linked article explains what the court’s order is all about, but the nickel version is that this ought to speed things up a bit, since the full court’s eventual ruling would go next to SCOTUS instead of being a midway point between the three-judge panel and SCOTUS. Since it was a 5-4 SCOTUS ruling that suspended the CPP pending judicial review – the first time that had ever happened – it’s highly likely that today’s diminished SCOTUS would deadlock if this were now on their plate. One presumes the high court will be at full strength by the time this does come their way, but regardless of that, it raises the stakes on the DC court’s eventual ruling. Buckle up, and get ready for a bunch of briefs to be headed the DC court’s way. E&E Publishing and the WaPo have more.

SCOTUS puts Clean Power Plan on hold

And in doubt.

ERCOT

In a major setback for President Obama’s climate change agenda, the Supreme Court on Tuesday temporarily blocked the administration’s effort to combat global warming by regulating emissions from coal-fired power plants.

The brief order was not the last word on the case, which is most likely to return to the Supreme Court after an appeals court considers an expedited challenge from 29 states and dozens of corporations and industry groups.

But the Supreme Court’s willingness to issue a stay while the case proceeds was an early hint that the program could face a skeptical reception from the justices.

The 5-to-4 vote, with the court’s four liberal members dissenting, was unprecedented — the Supreme Court had never before granted a request to halt a regulation before review by a federal appeals court.

“It’s a stunning development,” Jody Freeman, a Harvard law professor and former environmental legal counsel to the Obama administration, said in an email. She added that “the order certainly indicates a high degree of initial judicial skepticism from five justices on the court,” and that the ruling would raise serious questions from nations that signed on to the landmark Paris climate change pact in December.

In negotiating that deal, which requires every country to enact policies to lower emissions, Mr. Obama pointed to the power plant rule as evidence that the United States would take ambitious action, and that other countries should follow.

The White House said in a statement that it disagreed with the court’s decision and remained confident that it would ultimately prevail. “The administration will continue to take aggressive steps to make forward progress to reduce carbon emissions,” it said.

[…]

The E.P.A., represented by [Solicitor General Donald] Verrilli, called the requests for a stay “extraordinary and unprecedented.” The states challenging the administration’s plan, he said, could point to no case in which the Supreme Court had “granted a stay of a generally applicable regulation pending initial judicial review in the court of appeals.” In a later brief, the states conceded that point.

Mr. Verrilli said judicial review of the plan, including by the Supreme Court, will be complete before the first deadline for emissions reductions in 2022.

“There is no reason to suppose that states’ duties under the rule will be especially onerous,” Mr. Verrilli wrote. “A state can elect not to prepare a plan at all, but instead may allow E.P.A. to develop and implement a federal plan for sources in that state.”

Less than three weeks before this, the U.S. Court of Appeals for the District of Columbia denied the same request. As with everything the Roberts Court does, it’s hard not to read politics into their unprecedented granting of this request. I hope I’m wrong about that. The DC court will hear arguments on June 2, so one way or the other SCOTUS will be letting us know how they really feel in the near future. The Trib, Think Progress, SCOTUSBlog, Daily Kos, Slate, and the Observer have more.

Clean Power Plan can proceed for now

Good.

ERCOT

A federal appeals court has denied a request from Texas and other states to block President Obama’s Clean Power Plan, leaving the controversial climate change rules in place as a legal challenge winds through the courts.

The U.S. Court of Appeals for the District of Columbia wrote Thursday that the states — joined by the coal industry — “have not satisfied the stringent requirements for a stay.”

The two-page order was an early victory for Obama and others who support the state-by-state effort to combat climate change by slashing carbon emissions from power plants — largely through a shift from coal-fired power to natural gas and renewable sources.

Texas and West Virginia are leading a 25-state coalition challenging the plan, arguing that it could push electricity costs too high and threaten reliability. Beyond declining to immediately halt the rules, the court on Thursday set oral arguments in the case for June 2.

[…]

Texas must cut an annual average of 51 million tons of carbon to reach its federal target, a reduction of about 21 percent from 2012 emissions. The mandate rankles Republicans, but proponents of the rules — backed by early analyses — suggest that market forces and existing policies alone will push Texas most of the way toward its target.

As it stands, states have until Sept. 6 to submit a final plan or apply for an extension.

Texas leaders have refused to confirm whether they will create a carbon-cutting plan in case they lose in court. If the state flouts the rule, the EPA will impose its own plan on the state.

See here and here for the background. In addition to being not too hard a target to meet, the Clean Power Plan would have the ancillary benefit of saving water, and there are power companies in Texas who support it and oppose the lawsuit against the EPA. Not that any of that matters to Greg Abbott and Ken Paxton. FuelFix and Think Progress have more.

The inevitable latest lawsuit against the EPA

As night follows the day.

ERCOT

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.

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.

Who’s afraid of a little climate change?

We should be in Texas, but we’re not.

Texas probably will see a sharp increase in heat-related deaths and coastal storm-related losses in the coming decades if nothing is done to mitigate a changing climate, according to a new study commissioned by a bipartisan group of prominent policymakers and company executives aiming to spawn concern – and action – in the business community over the much-debated warming trend.

The study is the third region-specific analysis by the so-called Risky Business Project, an eclectic coalition led by former banker and U.S. Treasury Secretary Henry Paulson Jr., former New York City Mayor Michael Bloomberg and billionaire hedge fund manager-turned-environmentalist Tom Steyer. The men co-chair a bipartisan 20-member governing committee made up mostly of former presidential Cabinet members – including President Ronald Reagan’s secretary of state – who agree that climate change is occurring and that it will have negative economic consequences, but have consciously avoided the debate over whether human activity is causing it — or how to respond.

The first step in their mission? Highlighting the potentially devastating economic impact of climate change in the not-too-distant future. And, of course, not everyone is buying it.

Published Tuesday, “Come Heat and High Water: Climate Risk in the Southeastern U.S.” found that Texas will be one of the states most negatively impacted by climate change by mid-century absent any changes.

Among the findings of the study, Texas will probably see by the 2050s:

  • The number of extremely hot days per year – with temperatures exceeding 95 degrees – more than double, from an average of 43 to 106.
  • About 4,500 additional heat-related deaths per year with nearly half that increase coming in the next five to 15 years. (For comparison’s sake, the study points out there were about 3,400 total automotive fatalities in Texas in 2013.)
  • A sea level rise of up to 2 feet in Galveston.
  • A $650-million-per-year increase in storm-related losses along the coast, bringing the state’s total annual damages to more than $3.9 billion.
  • A marked decrease in both worker productivity and crop yields.

The idea is that if the group can convince business leaders that climate change is a true risk, they will in turn pressure policymakers to do something to address it, said committee member Henry Cisneros, a former mayor of San Antonio and secretary of the U.S. Department of Housing and Urban Development.

“We’ve seen that happen time and time again” with other divisive topics, Cisneros said, adding, “The implications for the productivity of the workforce are immense.”

[…]

That does not mean the business community will accept the findings of the study, however. And that reluctance appears largely rooted in the parts of the climate change debate the Risky Business Project has avoided amid a lack of clear-cut consensus among its leadership.

Claiming you can accurately model climate change over the short or long term is “arrogant” and “unrealistic,” said Stephen Minick, the head lobbyist for the Texas Association of Business.

While the powerful group believes climate change is occurring and businesses should account for it, Minick said that whether it is being caused by human activity — namely greenhouse gas emissions — is far from proven, along with the extremity and accuracy of the study’s predictions.

“We absolutely acknowledge the fact that the climate is changing and that sea levels are changing, partly because of climate, partly because of other reasons, and they always have and they always will,” he said.

“We have a long, long way to go in terms of our scientific knowledge … before we can make valid assumptions along those lines,” Minick added, asserting that accurate predictions are difficult in large part because big changes take place “over millenia.”

I believe that response can be summed up as follows:

shrug_emoji

You can see why this is unlikely to be taken seriously here. Hey, most of the people who don’t want to do anything about this will be dead long before 2050 anyway, so let the kids worry about it, amirite? The Observer and Hair Balls have more.

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.

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

So what else is new?

ERCOT

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.

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.

It pays to go green

It’s a simple enough formula – reduce energy usage, save money.

Mayor Annise Parker

Mayor Annise Parker

As Houston leaders push the counter-intuitive notion that the world’s energy capital can go green, and pledge ever-lower emissions goals for municipal operations, installing energy-efficient lighting and low-flow toilets can seem like hopelessly small measures.

City data show a seven-year effort to retrofit municipal facilities with those types of energy-efficient upgrades is working, however. And that matters, since Mayor Annise Parker’s office says energy costs are the city’s third-largest category of spending, after employee salaries and benefits.

The energy and operational savings produced by upgrades to 87 city buildings, completed over the last four years, have averaged $5.2 million a year. That trend is beating officials’ original estimates, and, if it holds, will see the investments pay for themselves in about 10 years, more than two years sooner than projected.

The city will continue to operate the buildings beyond the next decade, added Gilberto Lopez, a senior project manager in the city’s General Services Department, capturing even more savings into the future. Even if the positive trend were to reverse, Lopez said, both contractors handling the upgrades for the city guarantee results from their work, and will cut the city a check if the buildings don’t perform.

“The savings is absolutely a win,” Lopez said. “Is it a windfall, is it taking our breath away? We’re always looking in terms of, ‘Let’s clear the baseline and then we’ll celebrate everything else.’ But we feel very positive about the program.”

[…]

Houston has decreased its greenhouse gas emissions by 32 percent since 2007, and Parker earlier this year committed to cut emissions by another 10 percent by 2016. Parker also this year announced the city would work with CenterPoint Energy to convert 165,000 city streetlights to light-emitting diodes to reduce energy use, electricity costs and emissions. White and Parker also passed new codes for new commercial and residential development requiring greater energy efficiency.

Such efforts are an important component of acting sustainably, said Luke Metzger, director of Environment Texas, because an estimated 40 percent of all the energy used in the United States is consumed by buildings.

“A lot of older buildings are still wasting a lot of energy in terms of leaking insulation or outdated appliances, lighting and heating controls,” he said. “They really are largely an untapped resource in terms of saving energy – and the more energy we save, that means power plants are running less and pumping less pollution out of the smokestack. It definitely has a huge impact in terms of cleaning up the air.”

Putting aside the not-inconsiderable environmental benefits, this is savings without having to cut anything, and it’s ongoing. There’s nothing not to like about it. It’s true that any individual LED light or low-flow toilet doesn’t make much difference, but a couple thousand of them together adds up to quite a bit. Kudos all around.

From the “Those that disregard history are doomed to repeat it” department

This is the state of environment protection in Texas.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

Texas’ top environmental regulator suggested Thursday that the state may ignore a proposed directive from the Obama administration in June to reduce carbon emissions from power plants.

“I’m concerned that if this is not contested, if we don’t dispute this, if we don’t win, the implications … are only the camel’s nose under the tent,” Bryan Shaw, chairman of the Texas Commission on Environmental Quality, said at an event in the Texas Capitol sponsored by the Texas Public Policy Foundation.

The last time Texas refused to follow federal environmental rules, there were unintended consequences that caused a slow-down of the permitting process that prompted the energy industry to cry foul after losing millions of dollars.

About 150 people attended the event Thursday to hear Shaw and two other panelists speak about the proposal from the Obama administration, which could require Texas to reduce its carbon emissions from power plants by close to 200 billion pounds in the next two decades.

The general consensus among both the panelists and the audience was that the state should sue the Environmental Protection Agency over the rules if they are finalized, and should refuse to follow them. Karen Lugo, director of TPPF’s Center for Tenth Amendment Action, said she is working with state lawmakers on legislation affirming that Texas should ignore the rules unless Congress acts on climate change legislation, which it has never done.

The last time Texas regulators refused to implement federal environmental rules, lawmakers ended up reversing the decision. In 2010, the Obama administration started requiring companies that wanted to build new industrial plants to get “greenhouse gas permits” before beginning construction. When the TCEQ refused, the EPA had to take over, causing delays for some companies that lasted up to two years.

The result was legislation — supported by Koch Industries and the Texas Conservative Coalition, among others — that explicitly gave the TCEQ authority to regulate greenhouse gas emissions so that companies could get their permits quicker.

Asked whether Texas could avoid the same result this time around, Shaw acknowledged that the delays did cause some “economic development costs.” But he said the costs would have been greater had Texas acquiesced to what state regulators say is federal overreach.

“I think those costs were smaller … than not making a principled stand,” Shaw said.

Remember, that’s the guy who’s in charge of the agency that is supposed to enforce environmental regulations in Texas. You will note that nowhere in the story – or really, any story involving people like Bryan Shaw and the TPPF chuckleheads – is there any concern expressed about the cost of not enforcing these regulations on people. I assure you, that is not an oversight. There’s only one cost taken into consideration, and it isn’t about you or me.

Another win for the EPA at the Supreme Court

And thus another loss for Greg Abbott and Rick Perry.

Greg Abbott approves of this picture

The Supreme Court on Monday mostly validated the Environmental Protection Agency’s plans to regulate power plant and factory emissions of greenhouse gases blamed for global warming while imposing some limits on the agency’s reach.

The justices said the EPA could not rewrite specific standards written into the law, but they still handed the Obama administration and environmentalists a big victory by agreeing there was another way for the EPA to carry out its program.

“EPA is getting almost everything it wanted in this case,” Justice Antonin Scalia said from the bench, in announcing the decision. “It sought to regulate sources that it said were responsible for 86 percent of all the greenhouse gases emitted from stationary sources nationwide. Under our holdings, EPA will be able to regulate sources responsible for 83 percent of those emissions.”

[…]

The legal battle in part results from the failure of the administration and Congress to find common ground on the issue of global warming.

The court ruled in the 2007 case, Massachusetts v. EPA , that carbon dioxide and other greenhouse gases are pollutants that can be regulated under the Clean Air Act. That case, which was brought by states that said the EPA under President George W. Bush was not doing enough to fight global warming, concerned regulating motor vehicles.

The Obama administration later reasoned that “stationary sources” — factories, power plants and other structures — were also subject to the permitting requirements in certain parts of the act.

A unanimous panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed with that view. It said that court precedents made the agency’s readings of its powers “unambiguously correct.”

But the EPA has acknowledged that the permitting thresholds set by the Clean Air Act do not fit well with something like carbon dioxide, which is ubiquitous in the environment. While the law said pollution limits of 100 to 250 tons per year triggered permitting requirements, the EPA had to raise those to 75,000 to 100,000 tons per year for greenhouse gases to identify the facilities most in need of regulation.

The Trib and Vox have pretty good explainers of the case and the ruling, so go check them out. It’s not a complete win for the EPA, but it’s still a solid ruling for them. Texas was of course one of the lead plaintiffs in this action, but as has been the case before, they lost. There’s no other litigation pending currently, but I’m sure there will be more in the future. TPM, dKos, and the EDF have more.

SCOTUS upholds CSAPR

Some very good news for people who like to breathe.

Greg Abbott approves of this picture

The question was who should pay for air pollution that crosses state lines. The answer, the Supreme Court ruled Tuesday, is blowing in the wind.

States in the Midwest and South whose polluted air flows north and east must comply with a federally imposed solution, a 6-2 majority of justices ruled.

The decision, written by Justice Ruth Bader Ginsburg, was a boon for the Obama administration and its environmental regulators, who have proposed a rule requiring some 28 upwind states to slash ozone and fine particle emissions by varying amounts because of their downwind effects. Most of those states have rebelled against the one-size-fits-all solution.

The case focuses on air currents miles overhead but has down-to-earth consequences. The EPA blames exposure to ozone and fine particles in the air for one in 20 deaths in the United States, 90,000 hospital admissions, 200,000 non-fatal heart attacks and 2.5 million cases of aggravated asthma.

Attorneys for the objecting states and industries argued that the EPA was imposing a solution on the states before they could devise their own emissions control plans. As a result, Texas solicitor general Jonathan Mitchell said during oral arguments in December, “they have to overshoot and over-control and over-regulate.”

[…]

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the rule last year, ruling that EPA didn’t give states enough time to devise their own emissions reduction plans. It also said the agency did not limit the fix to each state’s “significant contribution” to the overall problem.

But the court’s majority ruled that with air pollution blowing in the wind, it would be nearly impossible to apportion blame precisely, making a federal solution based on costs and other factors more palatable.

The justices also noted that mid-Atlantic and Northeast states cannot meet federal emissions control standards without help from their neighbors to the west and south. Maryland, which spent $2.6 billion on its own emissions control efforts between 2007-10, estimates that 70% of its air pollution floats in over its borders.

See here, here, and here for the background. I confess, I wasn’t too optimistic about this at the time of the appeal, but I’m glad to have been proven wrong. Also proven wrong: Greg Abbott, who was of course one of the 14 AGs to pursue this litigation. Just another bad day at the office for you, Greg. Well, this latest loss by Greg Abbott is a big gain for a lot of people.

The Trib notes that SCOTUS isn’t done with this issue.

The Supreme Court is also expected to issue a ruling in the coming months in a case on federal greenhouse gas permitting rules. Justices had heard arguments in February from Texas and other states against the rules.

I believe that’s this case, and if they uphold the EPA’s actions again it’ll be quite the clean sweep for the Obama Administration. As always, however, you never know what SCOTUS might do, so let’s keep the anticipation in check for now. A copy of the SCOTUS decision is here, a statement from EPA Administrator Gina McCarthy is here, and a statement from the Texas League of Conservation Voters is here. Texas Clean Air Matters, the Texas Green Report, and Daily Kos have more.

Texas stands with polluters against the EPA one more time

Here we go.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

The Obama administration’s climate change agenda on Monday faced one of its first real tests in front of the U.S. Supreme Court, where Texas and a group of industry leaders challenged an Environmental Protection Agency regulation aimed at limiting greenhouse gas emissions.

The question before the court is whether permits needed by large polluting facilities like power plants, factories and refineries should also restrict emissions of greenhouse gases. Texas and several industry coalitions say the permits, which companies must obtain before building facilities, should not be required for such emissions.

Instead, argued Texas Solicitor General Jonathan Mitchell and Washington, D.C.-based attorney Peter Keisler, permits should only limit emissions of regular air pollutants like sulfur dioxide and nitrogen oxide.

“Greenhouse gas emissions should not be treated the same as other air pollutants,” Mitchell told the court, pointing out that Congress has only passed legislation on traditional air pollutants, not greenhouse gases. “Congress does not establish round holes for square pegs.”

The scope of the question at hand is narrow because it only deals with permitting. In court cases in 2007 and 2011, the Supreme Court upheld the EPA’s ability to broadly regulate greenhouse gas emissions from “mobile sources,” like motor vehicles, and “stationary sources,” like power plants.

Still, if Supreme Court justices agree with Texas and the industry petitioners, the Obama administration’s attempts to combat climate change independently of Congress will suffer a major setback.

“Permitting is one of the most powerful tools in the toolbox,” said Pamela Giblin, an Austin-based lawyer with the firm Baker Botts LLP, which represents many energy and chemical companies that are affected by the regulations. “You’ve got these multibillion-dollar projects; you’ve got bulldozers there waiting until you get the permit. … The agency is never going to have as much leverage over a company as it does when they’re madly trying to get the permission to break ground.”

See here for some background. The Chron sums up what’s at stake.

The EPA made the move to regulate heat-trapping emissions from industrial sources after a 2007 Supreme Court decision that said the agency had the authority to limit greenhouse gases from cars and trucks under the federal law.

As a result, President Barack Obama has tried to bypass Congress by moving his ambitious agenda for addressing climate change through the EPA, angering many Republicans.

In briefs filed with the court, Texas Solicitor General Jonathan Mitchell argued that the Clear Air Act cannot be interpreted to allow EPA’s permitting requirements when the rules cause “preposterous consequences.” By the state’s estimation, more than 6 million industrial sources nationwide would be forced to meet the requirements at a cost of $1.5 billion.

[…]

Legal experts said Texas might not be able to sway the justices because previous court decisions give deference to federal agencies when statutes are ambiguous.

“The Supreme Court has said we defer to the agency if its position is reasonable,” said Thomas McGarity, professor of administrative law at the University of Texas at Austin.

David Doniger, the climate policy director for the Natural Resources Defense Council, said fewer than 200 industrial facilities needed permits in the first two years of the new requirements for greenhouse gases. “So despite all the cries of alarm, the Clean Air Act’s permitting requirements are working just fine,” he said.

[…]

Tracy Hester, professor of environmental law at the University of Houston, described the state’s request as a “classic Hail Mary.”

“Given the court had this whole buffet of issues and still narrowed it to one” when it decided to hear the Texas case, “that makes going for the whole 99 yards unlikely,” Hester said.

Lyle Denniston thinks things went reasonably well for the Obama administration.

As is so often the case when the Court is closely divided, the vote of Justice Anthony M. Kennedy loomed as the critical one, and that vote seemed inclined toward the EPA, though with some doubt. Although he seemed troubled that Solicitor General Donald B. Verrilli, Jr., could call up no prior ruling to support the policy choice the EPA had made on greenhouse gases by industrial plants, Kennedy left the impression that it might not matter.

It was quickly evident that the EPA’s initiatives, seeking to put limits on ground sources of greenhouse gases, almost certainly had four votes in support: Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. They could not seem to accept that, when the challengers themselves are divided on the best way to read the Clean Air Act’s impact on such emissions, the Court should go with one of those choices rather than with the EPA’s.

The most enthusiastic supporter of the industry challengers was Justice Antonin Scalia, although Justice Samuel A. Alito, Jr., asked strongly skeptical questions about EPA’s justification for its actions. Chief Justice John G. Roberts, Jr., revealed little of where he might wind up, acting mostly as a moderator of his more active colleagues, and Justice Clarence Thomas said nothing.

That, of course, left Justice Kennedy. He was quite protective of the Court’s own decision seven years ago, launching EPA into the field of greenhouse gas regulation, and of a reinforcing decision on that point by the Court three years ago. But neither was close enough to the specifics of what EPA has now done, so he seemed short of just one precedent that might be enough to tip his vote for sure.

“Reading the briefs,” he commented to Verrilli, acting as the EPA’s lawyer, “I cannot find a single precedent that supports your position.” It appears that there just isn’t one to be had.

That, then, raised the question: how much would Kennedy be willing to trust the EPA to have done its best to follow Congress’s lead without stretching the Clean Air Act out of shape, as the EPA’s challengers have insisted that it has done? He made no comments suggesting that he accepted industry’s complaint of an EPA power grab.

We’ll know in a few months. Daily Kos has more.

The cost of fighting the inevitable

Trib headline: Anti-Regulation Politics May Have Hurt Energy Industry. Oh, the irony.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

Businesses in energy-related industries in Texas say they have been unable to take full advantage of the natural gas boom that is roaring across the state because of a delay in the issuing of greenhouse gas permits — an instance in which Texas’ anti-regulation stance might have actually hurt business.

The Environmental Protection Agency began requiring the permits more than three years ago, but the Texas Commission on Environmental Quality refused to enact the rules, arguing that it was illegal to regulate greenhouse gases. That left the responsibility to the EPA, which is only slightly larger than its Texas counterpart and has a small permitting division. As a result, the backlog of applications grew quickly, as did the complaints.

Texas lawmakers directed the state’s environmental agency last year to begin following the federal regulations. But it will take months for the agency to implement its own rules to take over the permitting.

The state has long fought with the federal government over regulations, especially those from the EPA. The chairman of the Texas agency, Bryan Shaw, who is among the many state officials who question the science of climate change, has repeatedly criticized the EPA for developing rules that could cripple the Texas economy.

Electric power retailers, along with energy transport and chemical companies, have told the TCEQ that the delay has put Texas at a competitive disadvantage against other states that had agreed earlier to issue the permits. Some executives said they have considered building in other states because of the delays.

[…]

Several industry lawyers and consultants estimated that the TCEQ would issue permits several months faster than the EPA, where in some cases the delays have been as long as two years.

“If it takes six months or a year to start a facility, well, then that’s a year you’re not going to be making any money,” said Bill Jamieson, director for air quality at the environmental consulting firm SWCA. “There’s no question that equity firms and large investors look at that as risk.”

[…]

Pamela Giblin, an Austin-based lawyer who represents many oil and chemical companies, said it would have been difficult for the state to follow rules that it had challenged in court. Next month, the U.S. Supreme Court will hear Texas’ argument that the EPA’s greenhouse gas permitting program is illegal. “If they had taken up the program, there might have been some pressure then to abandon the arguments and to leave the litigation alone,” Giblin said.

If Texas wins the case, “they’re going to look really astute for having taken a firm position.”

But there is no guarantee that will happen. Supreme Court justices have declined to hear Texas’ argument that greenhouse gases should not be considered a danger to public health and welfare.

Jamieson said companies thrive on regulatory certainty, and fighting rules can be more costly than following them.

“It really comes down to politics as to why this was done the way it was done,” he said. “You can look back on a number of instances in the state of Texas where utilities have challenged some pretty significant EPA regulation, and they’ve spent a lot of money, and the end result is: they have the regulation.”

See here for more on the SCOTUS hearing of that appeal, including some links to more in depth analysis of it. And yes, the state’s long and exhaustive fight against the EPA has been nothing but politics. The industry has finally recognized that the cost of denying reality is more than they care to bear, but the state isn’t there yet. Hopefully, SCOTUS will make it clear to them one more time.

SCOTUS will hear another EPA lawsuit appeal

Gird your loins.

The U.S. Supreme Court has agreed to hear Texas’ challenge of federal regulations on greenhouse gas emissions from stationary sources like power plants and factories, the court announced Tuesday. But it declined to hear the state’s appeals of two other decisions, effectively upholding rules that limit such emissions from vehicles and maintaining the Environmental Protection Agency’s assertion that greenhouse gases endanger public health and welfare.

Federal judges had previously knocked down efforts by Texas and several other states, along with powerful industry coalitions, to challenge the EPA’s efforts to regulate greenhouse gas emissions. Should the Supreme Court justices determine otherwise after hearing oral arguments next year, there could be severe implications for rules limiting emissions from big power plants and other facilities. The EPA recently proposed rules to limit carbon dioxide emissions from coal plants, prompting critics to accuse the agency of trying to destroy the coal industry and economy while drawing praise from environmental advocates.

At issue is whether the EPA can use the Clean Air Act, which gives it the authority to regulate emissions of toxic air pollutants and to limit emissions of greenhouse gases as well. In 2007, the court had ruled in the landmark case Massachusetts v. EPA that the EPA could do so for motor vehicles, which has led to stringent fuel-efficiency requirements for cars.

But Texas, joined by Mississippi and industry coalitions including the American Petroleum Institute, is arguing that the Clean Air Act was never meant to apply to anything other than air pollutants, because greenhouse gases like carbon dioxide and methane “[do] not deteriorate the quality of the air that people breathe.” Attorneys representing the groups added that “carbon dioxide is virtually everywhere and in everything,” and called the EPA’s proposed regulations of greenhouse gases “absurd.”

Of the nine petitions the group of states and industry leaders had filed to the Supreme Court regarding its challenge of climate change rules, the justices agreed to hear six, but only want to consider one question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”

I’ve kind of lost track of which lawsuit is which since there have been so many, but this was the most recent appeals court ruling, which went against Texas. SCOTUS has also agreed to hear an appeal of the CSAPR ruling, which went against the Obama administration. The consensus seems to be that this is a fairly narrow issue for SCOTUS to rule on and that the EPA should be on solid footing, but you never know. See Wonkblog, SCOTUSBlog, TPM, and the NRDC blog for more in depth analysis of this.

Texas loses another lawsuit against the EPA

Getting to be a habit.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

A federal appeals court on Friday rejected a legal challenge by Texas and Wyoming to the U.S. Environmental Protection Agency’s efforts to curb greenhouse gas emissions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, in a 2-1 vote, said the states and various industry groups did not have standing to sue because they could not show that they had suffered an injury or that a ruling throwing out the EPA plan would benefit them.

The decision comes after the same court upheld the EPA’s first wave of greenhouse gas regulations in 2012, and is another win for the EPA, which has a strong track record in the courts in challenges to its rules, particularly those targeting greenhouse gas emissions.

“The states and industry groups trying to block EPA from curbing carbon pollution under the Clean Air Act are on a long losing streak,” said David Doniger, climate policy director for the Natural Resources Defense Council.

Friday’s decision concerned a challenge to the EPA’s efforts to make states include carbon dioxide and other greenhouse gases when they issue permits to industrial facilities setting limits on various types of pollution they emit.

[…]

Frank O’Donnell, president of the not-for-profit group Clean Air Watch, said Friday’s ruling strengthens the hand of the EPA as it starts to implement President Barack Obama’s climate action plan. Obama in June directed the agency to write rules to curb carbon emissions from the country’s fleet of existing power plants.

But O’Donnell said Texas and other states opposed to federal environmental regulations are likely to drag their heels when forced to comply with EPA timelines.

“I predict they will be late filing their plans, due in 2016 under the scenario the president set forth, and will dare the federal government to intervene,” O’Donnell said.

You can see the ruling here, via the Environmental Defense Fund. There have been so many of these lawsuits that I have a hard time keeping track of which one is which, so I’ll just turn this over to the Sierra Club for the last word.

“The U.S. Supreme Court and other federal courts have now ruled in favor of controlling climate disrupting-pollution nine times,” said Cyrus Reed, conservation director with the Lone Star Chapter of the Sierra Club. “Attorney General Greg Abbott and Commissioner Bryan Shaw preferred to spend their time and resources on lawsuits doomed to fail, regardless of the consequences for Texas’s economy, rather than cooperating with the Environmental Protection Agency and upholding the law. Carbon pollution protections are the law, even in Texas. After three years of damaging droughts, it is time for the large polluters and state agencies alike to join the environmental community in working to reduce emissions.”

“While Texas officials were wasting taxpayer dollars with fights against the federal government, Texas legislators were quietly updating state laws in early 2013 to require TCEQ to regulate greenhouse gases under the Clean Air Act,” continued Reed. “Abbott and Shaw have spent millions of taxpayer dollars on these frivolous lawsuits rather than letting regulators do their jobs.”

Be sure to tell Latino voters about this one, Greg.

Texas versus EPA, round one zillion

The desire to coddle polluters is strong in this one.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

A Texas-led coalition of energy-producing states has asked the Supreme Court to hear a case involving the Obama administration’s efforts to regulate emissions of carbon dioxide and other heat-trapping gases.

The petition, which was filed last week, comes 10 months after a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the legal underpinnings of the Environmental Protection Agency’s first-ever rules limiting emissions of greenhouse gases.

In the 33-page petition, the states said the justices should hear their appeal because the new federal rules are hurting their economies. The EPA “is a runaway federal agency that must be reined in,” Texas Attorney General Greg Abbott said.

[…]

David Doniger, who directs climate policy for the Natural Resources Defense Council, said the argument would be a non-starter with the court.

“The court has ruled that the Clean Air Act covers climate-altering pollution, just like any other pollution,” he said. “I don’t see it reaching a different conclusion now.”

The Supreme Court already ruled in 2007 that the EPA had the authority to regulate greenhouse gases, but that’s not stopping Abbott and his gang. This is as much about politics as anything else. Let’s hope SCOTUS remembers its ruling from six years ago and sends this appeal off to the dustbin.

White Stallion coal plant deep sixed

I mentioned this in passing the other day, but the news that White Stallion has been shelved deserves its own post.

Developers have dropped plans for the White Stallion Energy Center about 90 miles southwest of Houston, signaling the end of a once heady rush to build several new coal-fired power plants across Texas.

White Stallion is the latest abandoned coal-burning project amid record low prices for natural gas and increased environmental scrutiny. The decision announced Friday means that Texans might not see another coal plant built after an 800-megawatt unit near Waco comes online in April.

The demise of the White Stallion project “hopefully represents the last dying gasp of ‘new’ coal plants in Texas proposing to employ technologies from the last century,” said Jim Marston, who leads the energy program for the Environmental Defense Fund.

Texas now has 19 coal plants, but once had plans for more. In 2005, Gov. Rick Perry issued an executive order that put their permits on the fast track, but most approved projects were never built.

The natural gas boom, driven by low prices on natural gas, is the single biggest reason why White Stallion and many other proposed coal plants were scrapped, and the main reason why there are no new coal plants on the horizon after the Waco plant was built. But that wasn’t the only factor – the Environmental Protection Agency did its job, too.

White Stallion had run afoul of new federal limits on emissions of mercury and other toxic pollutants. The project’s developers had asked the U.S. Court of Appeals for the District of Columbia Circuit to review the regulations, but the case is on hold.

The project also faced the EPA’s first-ever limits on emissions of carbon dioxide and other gases linked to global warming from new power plants.

And it did not have the support of many locals.

See here for the last update I had regarding litigation over the EPA’s regulation of greenhouse gases. As State Impact notes, White Stallion was in danger of seeing its state permit expire before getting an answer one way or another from the courts, and that would have meant needing to start over, which wasn’t going to happen. Pulling the plug was their only choice. While this is very good news for clean energy proponents, it’s not all good:

“The only downside of this shift to natural gas is that it has made the challenge for renewable energy to be competitive without subsidies even greater,” Rep. [Mark] Strama says. “Because any time that lower-priced natural gas power electricity displaces coal, for the same reason it tends to displace wind and solar. I think this story highlights again the need for a renewable strategy in Texas.”

To that end, Strama has advocated for state incentives and subsidies for more solar and coastal wind projects, which could help the state during hot summer days when demand for electricity is at its peak. He has filed legislation to that end, and is more hopeful that it stands a chance this legislative session.

“Let me put it this way,” Strama says. “We were really close in 2009 to passing meaningful legislation around renewables. [Then] we didn’t come very close in 2011. But this year feels a little more receptive to having a discussion.”

Some of what needs to be done to promote renewable energy in Texas is regulatory and not legislative, but either way there are things to do. In the meantime, let’s celebrate a win for a cleaner tomorrow. The Environmental Defense Fund has more.

Guess who likes the Obamacare ruling now?

The state of Texas, that’s who. But not for any positive reason, of course.

It's constitutional - deal with it

The high court decision limited the power of Congress to force states to take certain actions by threatening to withhold federal money – in the Affordable Care Act case, existing Medicaid funds. Chief Justice John Roberts called the threat “a gun to the head” of states.

Now, Texas attorneys claim the Environmental Protection Agency has acted in a similar fashion by threatening states without plans to control emissions of gases linked to global warming with construction bans on power plants, refineries and other large industrial facilities.

The EPA’s threat of “a construction moratorium is no less ‘a gun to the head’ than Congress’s threat to terminate Medicaid funding,” Mark DeLaquil, an attorney at the firm Baker Hostetler, which represents Texas, wrote in a letter to the U.S. Court of Appeals for the District of Columbia Circuit.

[…]

While legal scholars say the Supreme Court decision was sure to invite challenges of federal laws thought to be overly coercive of the states, there is skepticism over Texas’ claim.

Victor Flatt, professor of environmental law at the University of North Carolina, said the health care overhaul and the EPA’s actions are hardly the same thing because one is legislative and the other is administrative.

The agency always has the right to implement the federal Clean Air Act as long as it’s not “arbitrary and capricious,” he said.

Also, Flatt said the case could not be considered coercive because every other state was able to put together a permitting regime for emissions of greenhouse gases.

Tracy Hester, who leads the environmental program at the University of Houston Law Center, said he also expects the appeals court to reject claims of coercion.

“It doesn’t seem like a slam dunk,” Hester said.

That won’t stop Rick Perry and Greg Abbott from turning over every stone in their quest to offer aid and comfort to pollution producers. It’s what they do. Brad Plumer saw this coming.

“You could definitely imagine a governor pushing back against the EPA over sanctions,” says Ann Carlson, a professor of environmental law at the University of California Los Angeles. On the other hand, she notes, states might not have standing to sue unless they’re actually hit by highway sanctions—something that happens rarely.

It’s also not clear whether the Supreme Court would even agree that the Clean Air Act is structurally similar to Medicaid. ”There are definitely ways to distinguish the health care facts from the Clean Air facts,” says Carlson.

For one thing, federal Medicaid funds makes up a much, much bigger portion of state budgets than federal highway money does. (Last year, the government spent $275 billion on Medicaid versus $40 billion on highways.) What’s more, federal Medicaid funds are an entitlement program written into law—states have a reasonable expectation that they should receive the money each year as long as they’re following the rules. By contrast, federal highway funding needs to get renewed constantly by Congress. It’s less predictable. So states will have a harder time arguing that the federal government is pulling an unfair bait-and-switch by imposing new requirements. UCLA’s Jonathan Zasloff has more on why this distinction could matter, legally, here.

Ultimately, however, the actual legal arguments may be a side issue. If there are five justices who agree that the Clean Air Act is unduly coercive, then that might be enough. “Bottom line: if the Supremes want to injure the Clean Air Act, they will injure the Clean Air Act,” Zasloff writes by e-mail. “Law doesn’t really matter at this point.”

Carlson agrees that it would ultimately come down to votes. “The caveat here is that the health care decision is a brand-new ruling,” she says, “and we still have no idea how far the Supreme Court is willing to go.”

Sure is a good thing we don’t have any of those “activist” judges on the Supreme Court, isn’t it?

That other big lawsuit

In case you missed it, there was another big ruling last week that will have a profound effect on Texas.

Ship Channel crica 1973

A federal appeals court Tuesday upheld a finding by the Environmental Protection Agency that greenhouse gases pose a public health threat and require potentially costly limits from vehicles, power plants and other industrial sources.

In an unanimous decision, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the federal agency is “unambiguously correct” in its use of the Clean Air Act to regulate carbon dioxide and other gases linked to global warming as pollutants – a stinging rebuke to industry and 14 states, led by Texas, that had sued to block the landmark rules.

Such rules could have a profound impact on Texas, which emits more carbon dioxide and other heat-trapping gases than any other state.

“This is a pretty resounding victory from EPA’s perspective,” said Tracy Hester, who leads the energy, environment and natural resources program at the University of Houston Law Center. “The sweep and breadth of this decision will make it hard for the states to pick it back up.”

As was the case with the Affordable Care Act, the Republicans in Texas bet big on winning in court, and as was the case with the Affordable Care Act they lost. In this case they still have hope for something more favorable from SCOTUS, but not this term, and they’ll be up against a unanimous appellate ruling. If the state had done a better job taking care of business this might not be such a big deal, but we all know how that has gone. The Environmental Defense Fund has more.

How gassy are we?

I’m talking about greenhouse gases, of course. And the answer is, now you can find out for yourself.

Martin Lake coal plant

The greenhouse gas wars are about to heat up again in Texas. Next month, a federal court hears oral arguments in lawsuits that Texas has filed to challenge the Environmental Protection Agency, which began regulating heat-trapping emissions a year ago.

The EPA is hardly backing down. On Wednesday, the agency released an easily searchable database of big greenhouse gas polluters across the nation, prompting Texas environmentalists to immediately list the largest polluters in the state. Topping the list is the 1970s-era Martin Lake coal plant (pictured) in the East Texas city of Tatum. In 2010 it emitted nearly 19 million metric tons of carbon dioxide, about 13 percent more than the runner-up, the W.A. Parish coal plant in Thompsons, southwest of Houston. In third place is the Monticello coal plant in Northeast Texas, which narrowly avoided a shutdown when a federal appeals court issued a last-minute stay to an EPA pollution rule last month.

“This will be the first time that this data is publicly available and will inform Americans about the heat-trapping greenhouse gases emitted in their communities,” wrote Elena Craft, a health scientist with the Austin office of the Environmental Defense Fund, in a blog post. Power plant data has always been available, she said, but now industries like pulp and paper and landfills must also report it.

The photo above, courtesy of Think Progress, is of the Martin Lake plant in Tatum, TX, which has the distinction of being the nation’s top mercury emitter in 2009 (click the TP link for the chart) as well as Texas’ top greenhouse gas emitter last year (the Trib has that chart). No wonder the Sierra Club has targeted it for closure. Note that the other two plants named in that report appears on each of those lists I mentioned – Texas had four of the top five mercury polluters in the country in 2009, with Martin Lake #1, Big Brown #2, and Monticello #5. And as Patricia Kilday Hart reminds us, we have Rick Perry to thank for a lot of this.

Remember in 2006, when Perry issued an executive order fast-tracking permit requests for the construction of new coal-fired power plants? (This occurred, not surprisingly, while he was accepting hundreds of thousands of dollars in campaign contributions from power and coal interests.)

Back then, Perry predicted the new plants would be an economic boon. Well, yes, says one of his toughest critics, Environmental Defense Fund attorney James Marston.

Wyoming, Marston says, sends rail cars full of coal south to Texas power plants, and we refill them with cash and send them home. To the tune of $1.9 billion a year. This, at a time when Texas is awash in cheap natural gas, a cleaner alternative for the production of electricity.

[…]

Meanwhile, Marston said, Perry’s policies in Texas mean “we have dirtier air and we’re sending money to Wyoming. Both were avoidable if we had better leadership and better vision.”

And about the promise that coal plants would create new jobs? We were hoodwinked. According to a national study by the Ochs Center for Metropolitan Studies, proponents claimed the $2.3 billion Oak Grove project in Texas’ Robertson County would produce 2,400 construction jobs. But total construction employment for the entire county increased by only 329 during the peak construction year, the researchers found.

Similarly, in Milam County, the construction of the Sandow project was supposed to produce 1,370 jobs, but only 463 positions materialized.

The researchers concluded: “These findings strongly suggest that the economic development argument for coal plants is relatively weak, especially when compared to the job creation potential of alternative means of addressing demand for power.”

And yet Perry and his henchman Greg Abbott keep up their crusade to let these polluters have free rein. It’s clear whose interests they have in mind.

Even in the absence of enforcement, publishing these data may have a positive effect, as Brad Plumer notes.

In a conference call with reporters Wednesday, Gina McCarthy, the EPA’s assistant administrator for air and radiation, compared the new greenhouse-gas reporting law to the agency’s Toxics Release Inventory (TRI), a database that was passed by Congress back in 1986 to measure and publicize the release of more than 320 toxic chemicals from industrial facilities around the country. “[The TRI] had a tremendous impact in terms of providing opportunities for reduction, and we’re really hoping this information will do the same,” McCarthy said. And, in fact, a variety of analyses suggest she might be onto something.

One recent book, “Coming Clean: Information Disclosure and Environmental Performance” charts the impacts that the Toxics Release Inventory had on polluters. As Mark Stephan, a professor at Washington State University, Vancouver, explained to me, he and his co-authors conducted interviews with a variety of companies about their responses to the new public database. Many companies didn’t even realize they were spewing out so much pollution until forced to start keeping records. And that proved to be a big deal.

For instance, when the inventory was first disclosed in 1987, Monsanto executives realized that the company was one of the largest emitters in the country and pledged to reduce its toxic air releases 90 percent by 1992. This wasn’t in response to any new laws — Monsanto wasn’t legally required to do anything. The company was simply reacting to public information. Stephan adds that many other companies soon followed suit, in response to a fusillade of newspaper stories about toxic waste and pressure from community groups and local environmentalists.

That’s good news, but I have a feeling we’re going to need more than just bad publicity to get some real action around here. Still, forewarned is forearmed. At least we know what we’re up against.

“How to Choose a Texas Electric Provider the Wrong Way”

Recently, my friend Dan Wallach wrote a guest post here about how to find the best deal on electricity in Texas. Robert Nagle, another friend of mine, took issue with some of the things Dan wrote and penned a response on his blog, called How to Choose a Texas Electric Provider the Wrong Way. A brief excerpt:

I am amazed at how easy it is to make a bad decision about electric providers.  A college friend with a PhD in Economics chose an expensive coal-laden TXU plan because he had just moved back to Texas and wasn’t aware that you had the ability to choose your provider – he just went with whatever someone told him about. (In two minutes, I was able to find him a plan which was 10% cheaper and 100% green).  Various acquaintances have chosen plans for the most illogical of reasons. One chose “Reliant” because it sounded “reliable” (Reliant-reliable – get it? I guess getting your name on the downtown stadium was good for something).  Another signed up for the coal-dirty Reliant because it had balanced-billing – never mind that it was significantly more expensive than the other plans. A friend chose a plan simply because a friend of hers had recommended it – that was also more expensive. Another friend opted not to choose the “renewable” plan because she didn’t want to have to renew it each time the fixed rate expired.  There are other not-so-obvious problems. When I had Dynawatt (a company I don’t recommend) I could not make head or tail of the bill (no matter how long I studied it). Everything on the printed bill contradicted what the terms of my contract were, and when I called telephone support several times, each agent quoted me a different rate on my current plan – something which didn’t exactly inspire confidence.

4 Things You Need to Know about Choosing an Electric Provider in Texas

This blogpost is going to ramble a bit, so I’ll summarize for people who are in a hurry and need some fast tips.

  1. Texas consumes more fossil fuels than any other state in the US. If Texas were a nation, it would be the 7th largest emitter of greenhouse gases. Electric plants in Texas (population 25 million) emit as much CO2 as electric plants in the COMBINED states of New York, California, Florida, Massachusetts and Oregon (population: 86 million)
  2. 1 year Fixed-rate plans for 100% green (renewable) energy plans are on average 5-10% higher than comparable coal/natural gas plans.
  3. Don’t choose an electric provider which has received too many complaints. (Check thecomplaint scorecards on the PUC site and also Yelp if you want).

You’ll need to click over and read the whole thing for the fourth point. My thanks to Robert for sharing his expertise.

We’re number 16!

In a list of green cities.

The Bayou City placed 16th in the newly released U.S. and Canada Green City Index, a study conducted by the Economist Intelligence Unit on behalf of Siemens.

The study, released at the 2011 Aspen Ideas Festival, graded 27 major U.S. and Canadian cities on environmental performance and policies in nine categories — carbon dioxide emissions, energy, land use, buildings, transport, water, waste, air quality and environmental governance.

You can see more info here, and the full list here; the writeup for Houston is on pages 68 and 69 of the brochure. It must be admitted that 16 out of 27 is not the top half, but what’s important here is that we did better than Dallas, which was #17 and the only other Texas city on the list. I’d have been curious to see how San Antonio and Austin might have stacked up, but they were not included. Maybe next time.

Abbott takes his pro-pollution crusade to a new front

This is the sort of thing our Attorney General thinks is worth fighting for.

Expanding on the push-and-pull between Washington and Texas on environmental regulation, the state’s attorney general has called federal regulations meant to cut greenhouse gases from auto tailpipe emissions unlawful.

The federal government is pushing “hastily enacted, cascading regulations” on states and businesses, Attorney General Greg Abbott argued in a brief filed Friday on behalf of nine states in the U.S. Court of Appeals for the District of Columbia Circuit.

Other states signing on to the brief are Alabama, Georgia, Mississippi, Nebraska, North Dakota, South Carolina, South Dakota and Virginia.

The tailpipe emission rules, written by the U.S. Environmental Protection Agency and the U.S. Department of Transportation, require automakers to improve fleetwide fuel economy and reduce fleetwide greenhouse gas emissions approximately 5 percent every year , starting with 2012 model year vehicles .

Federal officials have said that the rules will cut foreign oil use and that lower emissions will cut consumers’ costs at the gas pump.

The rules will save consumers $3,000 over a vehicle’s lifetime because it will get better gas mileage, according to EPA spokesman Brendan Gilfillan .

The tailpipe rules are among six greenhouse gas-related regulations Texas is challenging.

The underlying argument by Texas: The fundamental finding that greenhouse gases are a public health threat is scientifically flawed.

I got nothing. I don’t understand this worldview at all.

EPA 3, Texas 0

How many times will the courts have to bench-slap our Governor and Attorney General before they get the message that Texas must comply with the same laws as every other state? It’s three and counting.

Texas had asked the Court of Appeals for the District of Columbia Circuit to block a program that awards construction permits to major sources of greenhouse gas emissions, such as cement kilns and oil refineries. Every other state has begun the permit program or allowed EPA to award permits for them.

On Wednesday, the court denied Texas’ request for a stay, clearing the way for the EPA to regulate major sources in Texas. A three-judge panel wrote that Texas didn’t satisfy “the stringent standards” required for a stay.

Environmental groups said the decision shows that Gov. Rick Perry and Attorney General Greg Abbott have filed frivolous lawsuits that amount to political statements about global warming.

“Texas is the only state in the nation that refused to let anyone – the state or the feds – issue permits for carbon dioxide, the main cause of global warming,” David Doniger, the chief global warming lawyer for the Natural Resources Defense Council, wrote on his blog. “The court’s ruling now assures that EPA will be able to fill that void for as long as Texas’ leaders continue their grandstanding, so that companies can continue building their projects, but with reasonable limits on all of their dangerous pollutants.

You can read that blog post here, which includes a copy of the court’s order. The story has one of Abbott’s usual whiny statements about how this will kill jobs. Which would be funny if the Lege weren’t likely to adopt a budget that will eliminate various state departments and cause school districts to lay off thousands of teachers. Anyway, Abbott and Perry will continue to shop for a court in the hope that they’ll eventually find one that will pat them on the head and tell them how very special and not like those other 49 states they are.

On a related note, those of you in Dallas will have an opportunity to have your voice heard about this. From the inbox:

EPA TO HOLD PUBLIC HEARING ON GREENHOUSE GAS PERMITTING PROGRAM

Public Hearing in Dallas on Friday, January 14, 2011

Texas Public Voices to be Unified, asking for Federal Implementation Plan to take over State Permitting process

HOUSTON – Tomorrow in downtown Dallas, the Environmental Protection Agency will come out to face public, industry and political comment regarding its recent highly controversial decision to assume greenhouse gas (GHG) permitting functions for the state of Texas Citizens from around the state will converge on the city to voice their hopes for EPA’s decision to step in to the void left by Texas’ refusal to reckon with global climate change.

In December, the EPA clarified that they will be responsible for issuing Clean Air Act permits for GHG emissions on the state’s behalf. This decision came after months of oftentimes acrimonious volley between the federal agency and the Texas Commission on Environmental Quality (TCEQ) on the underlying flaws and limitations of the state’s air permitting process. Texas, the country’s leading emitter of pollutants which contribute to global climate change, has staunchly refused to either regulate greenhouse gases or even accept the opinions of the United Nation’s Intergovernmental Panel on Climate Change on human contribution to climate change.

“For the good of Texans’ health, Texas’ business and our planet’s future, our state has to be a leader in dealing with greenhouse gas emissions”, implores Matthew Tejada, executive director of Air Alliance Houston. “Instead, our state leaders chose to stick Texas’ collective head in the sand, so we applaud the actions of the EPA in putting sensible science and policy ahead of local, shortsighted and divisive politics.”

Texans hope the proposed Federal Implementation Plan (FIP) will allow EPA to work with Texas’ industry and TCEQ for a cleaner, healthier state that abides by the same regulations as the other 49 states in our union. The time has come for Texas politicians to put the long term interests of our state ahead of their next election cycle and work with federal officials to ensure regulatory clarity and protection for public health across the state of Texas.

Here’s where the hearing will be: Crowne Plaza Hotel Dallas Downtown, 1015 Elm Street Dallas, TX 75202 map). Be there if you can.

Federal court denies stay in Texas’ lawsuit against EPA

No love from the Fifth Circuit.

Texas’ bid to stop the federal government’s efforts to regulate greenhouse gases hit another roadblock today, when the 5th Circuit Court of Appeals turned down the state’s request for a stay of a move to force states to implement federal plans.

“Petitioners have not met their burden to satisfy the legal standards required to allow a stay pending appeal,” the court said, in its short denial.

[…]

Texas’s efforts are hardly over, however. “The Respondent’s Motion for dismissal or in the alternative transfer to the D.C. Circuit remains before the panel,” the 5th Circuit said.

You can read the denial here; there’s not much more to it than was quoted above. As noted, the case itself is still ongoing, so denying the request to halt the EPA before it begins doesn’t mean that the suit will be resolved in the EPA’s favor. And this particular setback hasn’t stopped the state from filing more lawsuits.

The Texas petition to the U.S. Circuit Court of Appeals for the District of Columbia accuses the Environmental Protection Agency of abusing its powers by taking control of the permitting program without proper public notice. The EPA made the unilateral move Dec. 23.

“Once again, the federal government is overreaching and improperly intruding upon the state of Texas and its legal rights,” Texas Attorney General Greg Abbott said in a statement. Typically, the federal government delegates implementation of Clean Air Act rules to the states.

Abbott previously filed a challenge to the new rules, saying their underpinnings — that the gases threaten public health by warming the planet – are based on faulty data. Two federal appeals courts, including the Fifth Circuit Court of Appeals as recently as Wednesday, rejected his requests for a stay while the lawsuit is pending.

Al Armendariz, the EPA’s regional administratorbased in Dallas, criticized Texas “politicians” for filing suit again “instead of working with EPA to protect Texans’ health and welfare.”

You can read AG Abbott’s fulminations here, if that’s your thing. As the HuffPo reports, we’re in for a long and drawn-out fight. A statement from the Environmental Defense Fund is beneath the fold, while Grist and Kos have related items.

(more…)

Here comes the EPA

The EPA has seized control of the permitting process in Texas for refineries, power plants, and the like.

In a letter sent this week to state regulators, an EPA official wrote that 167 facilities in Texas – many of them power plants and oil refineries – would come under the rules.

As of Jan. 2, those plants will have to seek greenhouse-gas permits if modifications increase their greenhouse-gas emissions by 75,000 tons per year. New facilities that emit more than 100,000 tons annually become subject to the permit rule in July.

Texas has sued to stop EPA regulation of greenhouse gases, and [Governor Rick] Perry has accused the EPA of interfering in Texas’ successful air-permitting program. In June, the EPA rejected a separate Texas permit program that, according to federal officials, let some companies avoid certain federal clean-air requirements.

That action required those businesses to seek revised permits from the EPA.

By assuming control for greenhouse gas permits, the EPA said businesses would avoid the uncertainty that plagued the other clean-air program.

“We are simply now going to supplement the state actions to insure that we have an emission standard that … governs greenhouse gases,” EPA Assistant Administrator Gina McCarthy said Thursday. Permits “will be legally defensible. The industries will be able to rely on them and have certainty they are enforceable under federal law.”

If you’re downwind, you can probably smell the smoke now being emitted from Perry’s ears. Hope he’s got a permit for that. Anyway, see the Chron, Greenwire and Hair Balls for more, and my archives for some background. Needless to say, this will be fun to watch.

Federal court clears the way for greenhouse gas rules to be enforced in Texas

Apparently, Texas is subject to the same laws as those other states. Who knew?

A federal appeals court on Friday rejected pleas from Texas, some other states and industry allies to block nationwide rules on greenhouse gas emissions slated to start next month.

The states, industry groups and free-market groups are suing the Environmental Protection Agency over its first attempt to regulate carbon dioxide and other heat-trapping gases from automobiles and large industrial sources. The rules, they argue, would harm the economy.

But the U.S. Circuit Court of Appeals for the District of Columbia denied the request to freeze the new regulations while the lawsuit is pending, ruling that the challengers failed to show that the harms they allege are certain, rather than speculative.

The decision of the three-judge panel clears the way for the rules to take effect Jan. 2, as planned. The federal rules require new controls on emissions from vehicles and industrial sources, such as power plants and refineries.

Bear in mind, the DC circuit appeals court has a reputation for being very conservative. It’s the venue that Texas Republicans plan to use instead of the Justice Department to preclear its redistricting plans, with the hope of getting a more lenient interpretation (or an outright overturning) of the Voting Rights Act.

In challenging the EPA, Texas Attorney General Greg Abbott has argued that the underpinnings of the new rules — that the gases blamed for global warming threaten public health — are based on faulty data. The new rules also will hurt business, he told the court.

But the Texas lawsuit had a “see- through problem,” said David Doniger, director of climate policy for the Natural Resources Defense Council, which supports the new rules.

“You can say anything you want in a press release or a two-page lobbying letter to Congress,” Doniger said. “But when you go to court, you have to prove your case, and they didn’t. These cases were brought to dress up a political argument.”

Imagine that. Facts are stubborn things.

Burning biomass

I can’t say I knew much about this before I read the story, but now that I have my initial reaction is to be skeptical.

Interest in building power plants fueled by wood waste has recently surged in East Texas, which has none of the wind-power potential of West Texas but does have plenty of pine trees. Forty-five miles away from Lufkin, in northwestern Nacogdoches County, a larger plant with the capacity to power about 75,000 homes is being built by Southern Company, an Atlanta-based utility holding company. That plant, which will sell its power to Austin Energy, broke ground a year ago and should be operational by mid-2012.

Two other plants, near Woodville and Lindale, received crucial permits from Texas air-pollution regulators this year, though construction has not yet started. A fifth plant, near Greenville, has an application pending.

The case for biomass power is that it derives from a renewable resource: trees. The power plants can produce electricity around the clock, unlike wind turbines and solar panels, which work only when the weather is right. They also create jobs.

I certainly get why East Texas might be interested in tree waste as a source of power, but I have two concerns. One is that any time you talk about burning something, you have to wonder about the carbon effect, among other things.

Neil Carman, the clean air director of the Sierra Club in Texas, says he is skeptical of the claims by biomass plants that they are “carbon-neutral” because the calculations would depend on how long it takes for the trees — the original source of the fuel — to grow back.

However, other types of pollution are more immediately worrisome, according to Carman. “They can have a lot of dirty particulate matter from what they’re burning,” he says. “I would be very concerned about the potential for local air pollution problems.”

Indeed, a few years ago locals raised concerns about pollution from the Lufkin plant, which is co-owned by Vines. That led to a protracted and rancorous permitting battle in which the Environmental Protection Agency got involved. Eventually, improvements in pollution controls were required, says Aaron Hartsfield, a postal worker who lives about a half-mile from the plant.

The other question is, what exactly is “wood waste”, and isn’t there something else you could be doing with it?

The pulp and paper industry also has reservations about potential competition for woody debris. Biomass plant operators insist they will use leftover materials — the Lufkin plant, for example, plans to use logging debris and limbs remaining in the forests that would otherwise rot or get burned, as well as trees and shrubs cut down by homeowners, and available wood waste from mills.

But sometimes, wood waste gets used for other purposes. Pulp mills, for example, use their debris to generate energy within their plants (as opposed to feeding it into the electric grid). There are 50 to 100 such plants across the Southeast, including in Texas, Whiting says.

“Potentially, you’re driving up the cost of their feedstock,” says Luke Bellsnyder, executive director of the Texas Association of Manufacturers, whose members include pulp and paper mills.

Landowners, however, will welcome a new market for their product, says Ron Hufford, executive vice president of the Texas Forestry Association, whose members span a range of forest-industry players, including some of the biomass plants.

Rotting in the forest is how nature has taken care of this stuff forever, so it’s not clear to me why we shouldn’t just keep letting that happen. Beyond that, I remain skeptical but would like to learn more. What do you think about this?

San Antonio solar farm

There’s more solar energy available in Texas now than before.

[Texas’] first solar farm, an array of 215,000 photovoltaic panels that capture sun rays and turn them into power, went on line Thursday in San Antonio. Statewide, at least six more projects are in earlier stages of development.

“We have some of the best solar radiation in the country,” said a hopeful Luke Metzger of Environment Texas, “just a ton of sun.”

Until the big plants are up and adding electricity to the consumer grid, however, that power remains primarily potential. Tapping it will be controversial as long as solar is expensive relative to energy from other sources, overwhelmingly coal and natural gas.

And even if all the projects now on the books get built, they would create a mere sliver of the electricity Texans consume every year.
Yet proponents insist solar power has a bright future here, with economic as well as environmental benefits.

Electricity generated by solar-photovoltaic technology today costs five times as much to produce as coal-fired energy, according to Bloomberg New Energy Finance. Natural gas is an even cheaper source.

Solar is expensive even compared with other renewable sources, especially wind, which is narrowing the price gap with fossil fuels. And the Energy Information Administration predicts that by 2016, photovoltaic power on average will remain more than twice as expensive as wind-generated and more than three times as expensive as coal-fired.

Yet state Rep. Mark Strama, D-Austin, contends that renewable energy, particularly solar, “is where the market is headed,” and Texas would be wise to support the fledgling industry. He sponsored legislation in 2009 that would have provided rebates for individuals adding solar panels to their homes and for companies building utility-scale solar plants.

First, 2016 is just five years out, so there’s no reason to believe that solar won’t continue to get cheaper in the long run. Technology doesn’t necessarily advance linearly, either. It also may be the case that it’s just going to cost more to generate power down the line. If we were properly pricing the externalities of coal and other greenhouse gas sources, we’d already be thinking of it in more expensive terms. So the sooner we start working on and improving cleaner sources of energy like solar, the better off we’ll be.