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pollution

Distributing the VW settlement money

Good for some, less good for others.

Texas cities will soon get millions of dollars to help clean up air quality, but Houston officials say the plan for distributing all that money isn’t fair.

The money is coming from a settlement in the Volkswagen (VW) emissions cheating scandal. Local governments will be able to use the money to reduce emissions from their vehicles and other equipment.

The Texas Commission on Environmental Quality (TCEQ) plans to give the biggest chunk of the money – more than $73 million – to the San Antonio area, mainly because that city is closer than others to getting in line with federal pollution rules it’s currently violating.

Under the state’s plan, the Houston area, which has worse air quality, would get about $27 million.

The City of Houston says about a quarter of the cheating VW cars that were in Texas were driving in the Houston region.

“So we deserve at least a quarter of those funds, because we’re the ones that were harmed,” said Kris Banks, a government relations assistant with Houston Mayor Sylvester Turner’s office.

See here, here, and here for some background. Mayor Turner expressed his disenchantment with the amount allocated to Houston in a press release; you can see all of the city’s documentation on the matter here. The full TCEQ plan for the VW Environmental Mitigation Trust is here, or you can save yourself some time and read the Texas Vox summary of it. The TCEQ is still accepting feedback on the draft plan through October 8, so send them an email at VWsettle@tceq.texas.gov if you have comments. The Rivard Report has more.

What’s a little toxic waste among friends?

No big deal, right?

On the plus side…

The criteria Texas uses to determine how much — and whether — to clean up abandoned industrial facilities, waste dumps and other polluted sites are so lax that they may allow residential homes to be built in areas that neighboring states wouldn’t even consider safe for factories or oil refineries.

That’s according to a report by the Texas Campaign for the Environment Fund set to be released on Tuesday that compares benchmarks for more than 80 different pollutants that Texas, Arkansas, Louisiana, New Mexico, Mississippi and Oklahoma use to determine whether a site is contaminated enough to warrant cleanup and how much pollution should be removed from the soil or water there before it can be re-developed.

The overarching conclusion of the report: Texas’ formulas are “substantially weaker” than those used by almost every nearby state, in part because it tolerates a greater risk of cancer. That means that some polluted Texas sites that would be eligible for cleanup in other states may not be eligible here — and if the state does decide to clean them up, it may not remove as much pollution as its neighbors.

While some neighboring states — namely Arkansas and Oklahoma — rely on federal criteria, Texas uses its own benchmarks. Overall, they are so weak that Texas allows “pollution concentrations on land designated for residential uses that Louisiana, Arkansas, Oklahoma, and Mississippi wouldn’t even restrict to industrial uses,” the report found.

For example, Texas’ cleanup rules say that the ground at residential properties should contain no more than 69 milligrams of the carcinogenic petrochemical benzene for every 1 kilogram of soil; Louisiana, meanwhile, only allows 3.1 milligrams of benzene per kilogram of soil — and that’s for sites intended for industrial use.

The report comes a year after heavy rains from Hurricane Harvey flooded many polluted sites in the Houston area, sparking concerns about contaminants leaching into homes and waterways. And statewide, rapid urban revitalization and population growth means many contaminated sites are being remediated and redeveloped for both commercial and residential use.

You can see that report here. This right here is the reason why uniform federal standards are needed for some things. I don’t know about you, but I would not want to find out some day that the house I bought in some spiffy new development in, say, 2019, turned out to be in the 21st century version of Love Canal. Maybe if we insist on keeping the feds at bay we could elect some state leaders who cared about this sort of thing? Just a suggestion.

Deterring dumping

Tough problem, good use of technology.

[Radny] Scales, a Harris County Environmental Crimes Unit lieutenant, and his team of nine investigators depend heavily on video cameras to crack down on illegal dumping, a crime that disproportionally affects the city’s poorest neighborhoods.

The City Council voted last month to add 22 cameras to create a portfolio of nearly 150 total. Precinct 1’s nearly $600,000 program also includes a fleet of drones, as well as several full-time employees.

It’s paying dividends: A two-year program started in 2016 to catch those who illegally dump their trash in remote locations across Houston yielded 694 investigations and 396 charges.

“It’s been working for the city as a whole — better than what we thought,” said Jerry Davis, the councilman for District B, who initiated the program to catch illegal dumping.

The majority are people charged in the crime are private citizens: The average offender is a 50-year-old who dumps 75 pounds of waste, according to statistics the county provided. Contractors looking to dodge the expense of paying to throw away their garbage at a designated facility account for just 20 percent of offenders.

[…]

Beyond just being eyesores, illegal dumping sites present serious consequences, including being safety hazards and serving as a breeding ground for potentially disease-ridden mosquitoes, snakes and other wildlife. Dumping sites can also contribute to flooding and could potentially have a serious impact in future weather disasters.

“When you have drains that have been stopped up because people put furniture and tires and plastic, it’s going to cause flooding,” [Precinct 1 Constable Allen] Rosen said.

Illegal dumping is a big problem in some parts of the city, and has been for a long time. Video cameras are basically the only realistic hope for catching the perpetrators in the act, but it takes a lot of them because stuff gets dumped all over the place. It’s good some real resources being put into this, because it’s a real quality of life issue for a lot of people. I hope this is big enough and sustained enough to put a serious dent in the problem.

Harris County sues Arkema

Good.

Vince Ryan

Harris County filed suit Thursday against Arkema over chemical fires at its Crosby plant in the aftermath of Hurricane Harvey, saying the company violated a long list of environmental, safety and building regulations and put first responders at risk.

The lawsuit, filed in state district court, seeks up to $1 million in penalties and asks that Arkema be ordered to upgrade its emergency response plans, build stronger storage areas and set up a notification system for alerting nearby residents of future incidents.

About 300 homes were evacuated and more than 30 people hospitalized — including law enforcement — when a volatile chemical erupted into flames after the plant lost power and generators in Harvey floodwaters.

“This was a very dangerous situation,” County Attorney Vince Ryan said in a statement Thursday. “Arkema must take responsibility for its inability to ensure the safety of the people of the Crosby community and those who protect them.”

[…]

The company self-reported multiple emissions from the plant to the Texas Commission on Environmental Quality TCEQ during the disaster. Before the company lost control of its organic peroxides, floodwaters overwhelmed its wastewater treatment plant, resulting in industrial wastewater leaking into county waterways. Each separate fire resulted in air emissions from the facility.

Multiple new details were revealed in the county’s lawsuit. The county’s suit claims that Harris County Pollution Control Department detected air pollution outside of the mandated evacuation zone during the crisis.

It also says parts of the Arkema facility is located below base flood elevation, requiring permits the company did not have.

See here for more on the first lawsuit filed against Arkema. Commissioners Court authorized filing this lawsuit in late September. As I said before, I think Arkema needs to be held accountable for the things that it did and did not do that led to the many harmful environmental problems that resulted. Harvey was an unprecedented event and there likely wasn’t much they or anyone could have done to prevent consequences from it, but that doesn’t take them off the hook for their failure to be prepared. The Press has more.

Lamar Smith to retire

Good riddance.

Rep. Lamar Smith

U.S. Rep. Lamar Smith, R-San Antonio said Tuesday he is retiring from Congress.

“For several reasons, this seems like a good time to pass on the privilege of representing the 21st District to someone else,” he wrote in an email obtained by the Tribune. “… With over a year remaining in my term, there is still much to do. There is legislation to enact, dozens of hearings to hold and hundreds of votes to cast.”

Smith, a San Antonio native, received his undergraduate degree from Yale and attended law school at Southern Methodist University. He was elected to Congress in 1987 and represents a district that spans Austin, San Antonio and the Texas Hill Country. He is the current chairman of the U.S. House Science, Space and Technology Committee.

Like U.S. Rep. Jeb Hensarling, the House Financial Services chairman who announced his retirement on Tuesday, Smith faced a term-limit in that role.

[…]

Speculation immediately began among Texas GOP insiders about who could succeed Smith in his seat. Names included state Reps. Jason Isaac and Lyle Larson, and Austin City Councilwoman Ellen Troxclair.

State Sen. Donna Campbell’s name was also put in play. A spokesman for Campbell said she “will carefully and prayerfully consider what is best for her and the district.”

Austin-based communications consultant Jenifer Sarver, a Republican, confirmed that she’s “taking a serious look” at running for the seat.

The question on many insider’s minds is whether retiring state House Speaker Joe Straus would consider a run, but sources close to him said Thursday he is not interested.

Smith’s 21st Congressional District runs from South Austin along the west side of I-35 into San Antonio and extends westward into the Hill Country. The district was drawn to be a safe Republican seat, but there is a competitive Democratic primary this year with viable fundraising candidates. One of the Democratic challengers, veteran Joe Kopser, raised more funds than Smith in the last quarter.

Democrats have argued for weeks that if more Republicans retire, they have a better shot at those open-seat races.

Is this one of those races? It’s too soon to tell, Democratic sources around the Capitol told the Tribune.

This district would be incredibly difficult to dislodge, but perhaps not as hard as a lift as a conservative East Texas bastion such as Hensarling’s seat. Democrats will prioritize dozens of other seat before they spend on this one, situated in the expensive Austin and San Antonio markets.

The early read from Democrats in Washington: It would have to be an absolutely toxic environment for the GOP next year for this seat to flip.

Let’s be clear: Lamar Smith is terrible. Not just for his longstanding enmity towards the environment, which the story covered, but also for his equally longstanding hostility towards immigration. Of the names mentioned as potential Republican candidates to replace him, only Donna Campbell is clearly worse. That said, it is hard to beat an incumbent, and his departure ought to make the path a tad bit easier for someone like Joseph Kopser. CD21 was red in 2016, but not as red as it has been. Trump carried it 51.9 to 42.1, while Mike Keasler on the CCA won it 56.7 to 38.1. In 2012, it was 59.8 to 37.9 for Mitt Romney and 58.6 to 36.6 for Sharon Keller. Whether that’s enough to draw national attention is another question, but adding Smith’s name to the pile of leavers does help further the “abandon ship” narrative. I only wish he had done so sooner. ThinkProgress, which goes deeper on Smith’s extreme pro-pollution record, has more.

Harris County files lawsuit against Arkema

More trouble for that nasty and troublesome chemical plant.

Harris County Commissioners Court on Tuesday authorized the county attorney to file a lawsuit against Arkema over its struggles to manage stores of hazardous chemicals during Hurricane Harvey.

The county’s Pollution Control Services Department found serious violations of the Texas Clean Air Act by Arkema, County attorney Vince Ryan said in a statement. The county will try to recover the costs from responding to the crisis at the company’s Crosby plant. It will ask the court to review Arkema’s emergency preparedness plan and its environmental practices. The commissioners made the decision to approve the suit as part of its agenda wide unanimous vote.

“We’ve shown if you’re a bad actor, we’ll hold you accountable,” said Precinct 2 Commissioner Jack Morman.

[…]

Arkema lost control of its Crosby facility after floodwaters cut the power and wiped out its back up generators. With the power out and cooling systems failing, volatile organic peroxides exploded multiple times over a week, producing towering pillars of fire and thick plumes of black smoke.

A 1.5 mile evacuation zone was set up when government officials got access to the company’s chemical inventories. About 300 homes were evacuated during the crisis.

“During the height of this storm event, we had to have literally dozens of first responders tied up at this facility when they could have been in other areas of the county,” said Rock Owens, managing attorney for the county attorney’s environmental group.

Arkema’s claims that there was no way to anticipate six feet of water inundating the Crosby plant isn’t believable, Owens said. “We all knew for a week that we might get up to 50 inches of rain,” he said. ,” Owens said. “That’s not true. We all knew it was coming.”

See here for some background. Basically, the allegations in this lawsuit and the one filed by first responders are that this plant was woefully inadequate on safety measures, and they covered up their inadequacies as much as they could, which put residents and those first responders in needless danger. I would very much like to see them held responsible for this.

Lawsuit filed over Crosby plant explosion

This ought to be fun to watch.

Seven first responders who were exposed to fumes from a chemical fire last week at a Crosby, Texas, manufacturing plant have filed suit against the plant’s owner, alleging that the company’s negligence caused them “severe bodily injuries.”

The plaintiffs, who include police officers and medical personnel, say in the lawsuit that when they were dispatched to the Harvey-flooded Arkema chemical plant in the early hours of Aug. 31, they were not alerted that more than one explosion had already taken place. Exposed to strong fumes, they “began to fall ill in the middle of the road,” and “police officers were doubled over vomiting, unable to breathe.” The suit also states that medical personnel “became overwhelmed, and they began to vomit and gasp for air.”

According to the Harris County Sheriff’s Office, 15 sheriff’s deputies were sent to the hospital and released later on the morning of Aug. 31. Company officials described that smoke as “a non-toxic irritant,” and Harris County officials compared it to what escapes a campfire or barbecue pit.

The plaintiffs claim that the company never warned them of “toxic fumes” present on the site. Company officials, as well as state and federal government agencies, have maintained over the last week that they have not found “toxic concentration levels in areas away from the evacuated facility.” The company has been criticized for its refusal to disclose certain chemical safety documents. Arkema CEO Rich Rowe has described this as an attempt “to balance the public’s right to know with the public’s right to be secure.”

I haven’t followed this particular aspect of the Harvey disaster and aftermath. There are some links to other Trib stories at the end of this one, or just Google “Arkema explosion” to get caught up. The crux of the issue is one part lax oversight, by both Arkema and the state, and one part lack of disclosure about what hazards were present. If you’re thinking we’ve been down this road before, you’re right. I am mostly interested to see if anything has changed since the last major plant explosion. I don’t expect it – let’s not be naive – but we do live in a different world now, so you never know. ThinkProgress and the Lone Star Project have more.

One for the road

How about one last lawsuit against the federal government, for old times’ sake?

Best mugshot ever

Texas Attorney General Ken Paxton on Tuesday announced he, along with 13 other mostly Republican-led states, would sue the federal government yet again to block a recently finalized federal rule limiting coal mining near waterways.

The Office of Surface Mining Reclamation and Enforcement finalized the “Stream Protection Rule” in December, President Obama’s last full month in office, “after an extensive and transparent public process that spanned multiple years.”

“This rule takes into account the extensive and substantive comments we received from state regulators, mining companies and local communities across the country,” Assistant Secretary for Land and Minerals Management Janice Schneider said in a statement last month announcing finalization of the rule.

The statement said it “updates 33-year-old regulations and establishes clear requirements for responsible surface coal mining that will protect 6,000 miles of streams and 52,000 acres of forests over the next two decades, preserving community health and economic opportunities while meeting the nation’s energy needs.”

But according to Paxton’s office, “the federal agency adopted the revised rule without the participation of the states.”

“By imposing a mandatory, one-size-fits-all rule regarding coal mining, the rule goes against states’ sovereign rights allowed by the Surface Mining Control and Reclamation Act enacted by Congress in 1977,” Paxton’s office said in a statement Tuesday announcing the filing of a petition for review and injunction of the rule, which was just published in the Federal Register.

Sometimes I like to imagine a world in which Ken Paxton lives next to an industrial polluter and is unable to afford health insurance. It doesn’t change anything in this world, but one does what one must to cope.

Want to know how close you live to a polluter?

There’s an app for that.

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

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

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

[…]

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

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

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

Texas to get VW settlement money

It’s something.

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

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

[…]

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

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

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

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

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

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

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

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

New methane rules finalized

Gentlemen, start your lawyers.

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

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

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

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

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

[…]

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

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

Houston’s anti-pollution ordinance killed by Supreme Court

Alas.

Bill White

Bill White

In passing two ordinances designed to regulate air pollution, the city of Houston overstepped its authority and illegally subverted state law, the Texas Supreme Court ruled Friday. The ruling is a victory for a coalition of industrial facilities whose emissions were subject to inspection and possible prosecution by the city.

The case pit the BCCA Appeal Group, a coalition of companies including ExxonMobil, the Dow Chemical Company, and ConocoPhillips, against the city of Houston, which sought to penalize companies in criminal court when those companies violated state emission guidelines.

Attorneys for the city of Houston argued that the city was simply trying to enforce the standards set out by the Texas Commission on Environmental Quality, a state agency, by putting in place a parallel enforcement mechanism that would impose fines on the companies even if the Commission chose not to act.

“If the TCEQ is letting something go, and not enforcing its own standards, there’s something wrong with that,” attorney Robert Higgason told the justices in September.

In an 8–1 ruling Friday, the justices made it clear that they disagreed – saying that if the Commission chose not to enforce any given law, that did not clear the way for Houston authorities to do so.

“By authorizing criminal prosecution even when the TCEQ determines an administrative or civil remedy—or even no penalty at all—to be the appropriate remedy, the City effectively moots the TCEQ’s discretion and the TCEQ’s authority to select an enforcement mechanism,” Justice Paul Green wrote. “This is impermissible.”

See here and here for the origin story, and here and here for the most recent updates. The Chron story adds more.

City Attorney Donna Edmundson issued a statement saying the court’s decision “will not dampen the city’s efforts” to assist the Texas Commission on Environmental Quality with the enforcement of environmental laws. The statement said the city will employ “other legal mechanisms” allowed under state law to monitor and take action against polluters. A spokeswoman said the city hadn’t decided whether to appeal.

Adrian Shelley, executive director of the advocacy group Air Alliance Houston, said the decision was “not the least bit surprising” but dismaying nonetheless.

“It’s pretty in-keeping with both previous judicial decisions and the direction in which our state government is moving,” he said. He cited the state Legislature’s passage of a bill last session that caps the amount local governments can collect through environmental lawsuits, Gov. Greg Abbott’s filing of a brief in support of the industry advocates in this case, and a prior legal case that made its way to the Texas Supreme Court.

“There will be more polluters who pollute with impunity,” Shelley said. “There will be a little poorer public health in the city as a result.”

Houston battled smoggy skies for decades and has failed to comply with federal ozone standards. The 10-county area includes the largest petrochemical complex in the country, hundreds of chemical plants and a bustling port.

Under the ordinances, the city collects registration fees from companies in order to investigate potential violations of air pollution laws.

City officials have defended the ordinances since their passage in 2007, arguing they helped fill an enforcement gap created by understaffing at TCEQ, the state agency responsible for monitoring and punishing polluters.

The city said legal mechanisms it could use against polluters include requesting that TCEQ investigate suspected polluters, seeking injunctive relief and penalties in civil court against suspected violators and notifying TCEQ of violations deemed to be criminal in nature.

Former Mayor Bill White pushed for the ordinances after growing frustrated with TCEQ. He and City Council members voted to amend a 1992 ordinance and start requiring businesses to pay registration fees based on their size and emissions. The fees range from $130 for a dry cleaning plant with fewer than six employees to $3,200 for plants emitting more than 10 tons annually of airborne contaminants.

The ordinances also authorized city health officers to seek civil, administrative and criminal sanctions for violations that can be prosecuted in municipal court, with fines of up to $2,000 per day for repeat violators.

The ordinance was based on the premise that these facilities are outside Houston’s boundaries, but their emissions directly affect the city and its residents, not to mention Houston’s non-compliance with EPA regulations. The Supreme Court wrote that allowing such ordinances might lead to uneven enforcement around the state. I can see the logic of that, but as is so often the case with the TCEQ, if they bothered to enforce the law in the first place, the city wouldn’t have passed that ordinance. It’s the same impetus that drove Denton to ban fracking, and as was the case there, it’s the same impulse to squash inconvenient expressions of local control that led to this result. How long can you hold your breath, Houston? The Press and the Observer have more.

Pity the poor utilities

Sorry, but low electricity prices, especially when they are aided by record amounts of wind power generation, are good news.

ERCOT

Texas’ national lead in cheap wind power, combined with near historically low natural gas prices, mild weather, an abundant power supply and slower growth in electricity demand, can work to the detriment of power companies.

The combination weighed down wholesale power prices last year to their lowest averages since 2002. And the effects are only becoming more dramatic in 2016, even creating bizarre instances when, in the abstract at least, providers are paying to put electricity on the market.

“It’s pretty dire,” said Michael Ferguson, associate director at Standard & Poor’s covering utilities and infrastructure. “It’s a bad situation for gas generators, but for coal generation, it’s even worse.”

Texas’ wholesale power prices averaged $26.77 per megawatt-hour last year, down nearly 35 percent from $40.64 per megawatt-hour in 2014. The cost was more than $70 as recently as 2008.

While now is a good time for consumers to lock in cheaper electricity prices, well more than 25 percent of the state’s power plants are operating at a cash loss, especially the older coal-fired plants, power executives and analysts estimated. That’s before more stringent federal emissions regulations go into effect in coming years

Until coal plants start shutting down or the state tweaks regulations to artificially inflate prices, power companies will struggle, executives said. A new Moody’s Investors Service report concluded that Texas “power prices are unlikely to climb out of their doldrums.”

Already, less than a quarter of Texas’ coal fleet is operating early this spring, as more generators simply take their coal plants offline until the summer heat brings more demand, analysts from Tudor, Pickering, Holt & Co. noted.

In March, wind added to the grid more than coal power for the first time ever for a full month. Wind contributed 21.4 percent of the grid’s overall power, compared with 12.9 percent from coal, which used to be the dominant source of the state’s electricity generation, according to the Electric Reliability Council of Texas, which manages about 90 percent of the state’s electricity load.

“Ultimately, something is going to have to give here,” said Thad Hill, president and CEO of Calpine Corp., the largest power generator in the Houston region and owner of the nation’s largest fleet of natural gas-fired power plants.

[…]

Texas is home to nearly 20 coal-fired power plants and the near future of at least six of them are considered at risk.

They will require expensive upgrades to meet federal standards, according to a recent ERCOT analysis, and the costs could outweigh the benefits of keeping them open. That’s not even counting the effects of the federal Clean Power Plan, which is pending in court.

“Ultimately, we think the market could be a lot tighter than people think, particularly if people start mothballing or retiring units,” said Hill, whose Calpine would stand to benefit because it doesn’t own any coal plants.

At-risk plants include Luminant’s Big Brown, Monticello and Martin Lake coal plants in East Texas, half of Luminant’s Sandow plant east of Austin, NRG Energy’s Limestone plant east of Waco, and Engie’s Coleto Creek plant near Victoria that’s being bought by Dynegy.

It’s fine by me if those coal plants go the way of the dodo. It’s long overdue, and their demise will make meeting the Clean Power Plan benchmarks even easier. More investment in solar energy will help mitigate the low-wind periods and ensure demand can be met in the summertime. What’s not to like?

30 years of “Don’t Mess With Texas”

Happy birthday to one of the greatest public service campaigns of all time.

It seems it’s every Texan’s duty to at least once invoke the slogan “Don’t Mess With Texas.”

You’ll see it on bumper stickers, in the movies, on T-shirts and coffee mugs. You’ll hear it hollered from campaign stumps and in songs. It’s about pride. It’s about bravado.

And it’s about trash.

Today, the Texas Department of Transportation celebrates the 30th birthday of its now-ubiquitous trademarked phrase and one of the most effective marketing campaigns in history — a campaign to rid Texas highways of garbage.

“When this program was created, Texas had a really bad problem of picking up highway litter,” said Jeff Austin, a TxDOT commissioner. “As a seventh-generation Texan, it was really embarrassing.”

Its brand endurance aside, Austin says you can measure the success of the campaign in tons.

The last time TxDOT conducted a study of visible trash the state calculated there were about 435 million pieces of litter — or more aptly, mess — on Texas highways.

That mess was about 34 percent less than in 2009, according to the 2013 study by Environmental Resources Planning LLC.

The commissioner attributes the reduction in mess, despite a booming Texas population, to the staying power of the “Don’t Mess With Texas” brand, which was drummed up by Austin-based marketing giant GSD&M in 1986.

It kicked off with a TV advertisement in which Texas guitar legend Stevie Ray Vaughan played “The Eyes of Texas.” That spot rolled out during the 1986 Cotton Bowl, and the rest is history.

Over the next three decades, Texas icons such as Willie Nelson, George Strait, Warren Moon, Matthew McConaughey – and the list goes on — would volunteer their time and talents in ads meant to keep Texas neat.

But the phrase took on a life of its own, and though many Texans may feel it’s their God-given right to use the phrase just like they do “Come and Take It,” TxDOT lawyers must occasionally remind folks that right rests with the state.

“We’ve sent a couple cease-and-desist letters to some companies that were using it in a negative way, if you will,” said Brenda Flores-Dollar, the program manager for the Don’t Mess With Texas campaign.

For instance, lawyers stepped in when one entrepreneur wanted to add an expletive to the phrase – “Don’t ****ing Mess With Texas” — and print it on T-shirts.

By owning the trademark, the state has been able to strategically license its use to make modest revenue – about $143,000 in royalties since 2004 — but also catapult the brand to heights not usually seen in government campaigns.

I’m a big fan of this campaign as you know, and it warms my heart to know that it is still going strong. You can see a few of the classic ads here – be sure to watch the George Foreman video, it’s wonderful – but the original Stevie Ray Vaughan spot still gives me chills.

God bless you, Stevie. And don’t mess with Texas, y’all.

New EPA rules for methane coming

You know what will follow.

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

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

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

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

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

[…]

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

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

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

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

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

SCOTUS allows mercury regulations to remain in effect

Good.

Martin Lake coal plant

Martin Lake coal plant

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

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

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

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

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

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

Environmentalists petition EPA to strip Texas of some authorities

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

Yet another lawsuit by Texas against the EPA

So what else is new?

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

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

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

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

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

More rules against polluting your neighbors proposed

Good.

The Environmental Protection Agency proposed tougher new limits on Tuesday on smokestack emissions from Texas and 22 other states that burden downwind areas with air pollution from power plants they can’t control.

At the same time, the EPA moved to remove two states — South Carolina and Florida — from the “good neighbor” rules, saying they don’t contribute significant amounts of smog to other states.

[…]

The EPA’s proposal on downwind pollution follows a federal appeals court ruling this summer that upheld the agency’s right to impose the clean-air standards, which block states from adding to air pollution in other localities. Some states and industry groups had argued that the rule was overly burdensome.

The rule applies mostly to states in the South and Midwest that contribute to soot and smog along the East Coast.

Under the EPA’s proposal, states would have to comply with air quality standards for ozone, or smog, set by the George W. Bush administration in 2008. Current rules are based on pollution standards developed in the late 1990s.

“This update will help protect the health and lives of millions of Americans by reducing exposure to ozone pollution, which is linked to serious public health effects including reduced lung function, asthma … and early death from respiratory and cardiovascular causes,” EPA Administrator Gina McCarthy said in a statement.

The proposal reinforces the obligations states have to address air pollution that is carried across state lines, McCarthy said.

See here for the background. The ruling in question struck down some earlier regulations, but affirmed the EPA’s authority to set regulations on this. I won’t be surprised if there’s another lawsuit over these rules, but one way or another in the end there will be new rules.

No idling

From the inbox, from last week:

Mayor Annise Parker

Mayor Annise Parker

Mayor Annise Parker and Houston City Council today approved two significant ordinances that will improve Houston’s quality of life and protect public health: an anti-idling ordinance for motor vehicles with a gross vehicle weight rating of more than 14,000 pounds; and a commercial Property Assessed Clean Energy (PACE) program.

“Adopting these ordinances are more key milestones for my administration,” said Mayor Annise Parker. “While we are excited to join the ranks of other Texas cities that have also passed idling reduction policies, we are proud to be the first city in Texas that has adopted a commercial PACE program. We all have to work together in improving our air quality and quality of life.”

Idling Reduction:

Idling is one contributor to air quality issues in the region. Nitrogen oxides (NOx), volatile organic compounds (VOCs), and particulate matter (PM) are emitted from vehicle engine exhaust and can form ground-level ozone, or smog. Diesel engines emit hazardous air pollutants which have been linked to serious illnesses, including asthma, heart disease, chronic bronchitis, and cancer. Children, elderly, and those with asthma and other chronic health problems are especially vulnerable to the health dangers of exhaust.

Property Assessed Clean Energy (PACE):

PACE is financing that enables Houston owners of commercial, industrial and residential properties with five or more units to obtain low-cost, long-term loans for water conservation, energy-efficiency, and renewable retrofits.  In exchange for funds provided by a private lender to pay for the improvement, the property owner voluntarily requests that the local government place an assessment secured with a senior lien on the property until the assessment is paid in full.  The benefits of PACE are multi-faceted, leading to a win for all stakeholders.

“We applaud Mayor Annise Parker and Houston for passing landmark environmental legislation that improves our quality of life,” said Luke Metzger, Director of Environment Texas. “Commercial PACE will make it easier for building owners to reduce energy and water usage and the anti-idling ordinance will clean the air and protect the health of families. It’s a double win.”

“These two ordinances have the potential to make a big impact on air quality and quality of life in Houston,” said Adrian Shelley, Executive Director of Air Alliance Houston. “Reducing idling and conserving energy and water help protect public health, as well as save money. We appreciate Mayor Parker’s significant commitment to improving our environment.”

This ordinance follows numerous other air quality initiatives and programs including:

  • Investing in electric vehicles and hybrids and a fleet sharing program
  • Investigating emissions from metal recyclers
  • Retrofitting over 6 millions square feet of municipal buildings to improve energy efficiency
  • Purchasing 50% green power for city operations
  • Retrofitting 165,000 streetlights to LED technology
  • Expanding bike share and bike facilities across the city

The Chron has a bit more about the anti-idling ordinance.

The anti-idling ordinance prohibits drivers of vehicles with a gross weight of more than 14,000 pounds from idling for more than five minutes when the vehicle is not in motion.

The law, however, exempts vehicles being used by military, emergency or law enforcement personnel, vehicles in the process of being loaded or unloaded, cars sitting in traffic jams, people defrosting their windshields, and various vehicles that must run heat or air conditioning for health and safety reasons.

Transit vehicles carrying passengers can idle for up to 15 minutes to use the heat or air conditioning.

Good. As we know, Houston has longstanding air quality issues, and as federal clean air standards have tightened we have been in greater danger of not being in compliance. There isn’t one single thing that can be done to fix this problem, but there are a lot of little things that can be done to move us in the right direction. This is one of them. Kudos all around for getting it done.

Thanks but no thanks, Ken

Harris County will continue to pursue its own lawsuit against VW.

Harris County has responded to Ken Paxton’s request to drop its lawsuit against scandal-plagued Volkswagen. Its answer? A polite no.

[…]

In a reply to Paxton dated Oct. 15, [Harris County Attorney Vince] Ryan wrote, “we were pleased to learn that the Office of the Attorney General has joined Harris County” in the claims against Volkswagen. “We look forward to working together once again in connection with this important effort.”

In other words: No, thanks.

By abandoning their lawsuits, the counties would leave millions of dollars in potential damages on the table.

That’s because under state law, when local governments file such suits, the state is required to join as a “necessary and indispensable party.” In these types of cases, the counties and state split any money.

But the counties would not directly get a share of any damages in the suits Texas is leading.

Any civil penalties recovered in Paxton’s environmental lawsuit would flow into the state’s general fund, while penalties from the consumer protection case will go to the Texas Supreme Court’s judicial fund for programs that provide legal services to poor people, said Cynthia Meyer, a spokeswoman for Paxton’s office. Any other “meaningful restitution” she added, would go directly to consumers duped by Volkswagen’s emissions software.

Ryan’s letter to Paxton noted that, in 1998, Harris County, along with other counties, recovered about $2.2 billion from the tobacco industry through litigation — on top of the billions that the state recovered for itself.

See here, here, and here for the background, and here for a copy of Ryan’s letter. I’m not an attorney, but as I said before I don’t see why Harris or any other county that wants to pursue its own lawsuit should bow to Paxton’s request. It doesn’t make good financial sense to do otherwise, if a county has the resources to handle the litigation itself. Many counties don’t, but Harris does, and that should be good enough. Stick to your guns, Vince.

Paxton wants to sue VW all by himself

Really?

Seeking to fight scandal-plagued Volkswagen alone, Attorney General Ken Paxton is asking two Texas counties to halt their lawsuits against the automaker — a move highlighting friction between Texas and local governments pursuing tens of millions of dollars in court.

The Republican made the request in letters sent Friday to top attorneys in Harris and Fort Bend counties, both of which beat Paxton to the punch in filing lawsuits over the company’s admitted use of software that allowed its vehicles to sidestep emissions limits.

“The alleged violations by VW harm Texans throughout the state, and a separate Harris County lawsuit undermines the ability to achieve a comprehensive and just statewide resolution of this matter on behalf of Texas,” Paxton wrote in a letter to Vince Ryan, the Harris County attorney. “The Office of the Attorney General requests that the county stand down on its claims and cooperate with the Office of the Attorney General in pursuing the state’s interests – which includes Harris County’s interests – on matters arising from VW’s wrongful conduct.”

Paxton used similar language in a letter to Fort Bend County Attorney Roy Cordes, Jr.

Paxton wrote that both counties failed to communicate with his office before filing their suits, and he knocked them for hiring outside legal help, saying the move “appears to be an unnecessary expense.” The Texas Tribune obtained unsigned copies of both letters.

By abandoning their lawsuits, the counties would leave millions of dollars in potential winnings on the table.

“Harris County, Texas wants a place at the table. That’s why we’re first in line and the first government in the world to sue Volkswagen,” said Terry O’Rourke, special counsel with the Harris County attorney’s office. O’Rourke had not yet seen Paxton’s letter.

“We’ll look at whatever General Paxton’s request is and evaluate it with sincerity,” he added.

In Fort Bend, Randy Morse, the assistant county attorney, said his office could not comment because it had yet to receive the letter.

[…]

Last week, the city of Dallas announced it planned to sue Volkswagen, but it reversed course on Monday, saying Paxton’s statewide suit would do the trick.

“We look forward to the state taking action in the upcoming months to require Volkswagen and Audi to bring the affected vehicles into compliance with state environmental laws and improve air quality in the Dallas-Fort Worth area, and we urge the state to do so in an expeditious manner and at no cost to affected motorists,” the city said in a statement.

See here and here for the background. Personally, I don’t know that I would trust the state to look after my own interests as well as I would in a case like this. Pursuing environmental justice is not exactly one of Ken Paxton’s strong points. If I were in those County Attorneys’ shoes, my reply would be to suggest that Paxton file a brief with the judge in my case stating his position, and let the judge decide the best course of action from there. The Press and the Chron have more.

State of Texas sues VW

Bandwagon time!

Following in the footsteps of Harris County and the city of Dallas, the state announced Thursday it is suing Volkswagen in connection with the German automaker’s admitted use of software that allowed its vehicles to circumvent emissions limits.

Attorney General Ken Paxton announced two separate lawsuits against Volkswagen Group of America, Inc. and subsidiary Audi of America, alleging violations of the state’s consumer protection laws and clean air standards.

“The lawsuits allege the companies misled Texas consumers by marketing and selling diesel vehicles as ‘clean’ while knowing that these vehicles were designed to meet emission standards only when being tested,” a news release said. “Outside of the testing station they would emit up to 40 times the allowable standard for certain pollutants.”

About 32,000 diesel cars capable of emissions cheating have been sold in Texas, the release said, citing U.S. Environmental Protection Agency figures. That’s compared to about 480,000 nationwide and 11 million globally.

“For years, Volkswagen intentionally misled consumers about the environmental and performance qualities of the vehicles they sold in Texas,” Paxton said in a statement. “When companies willfully violate the public’s trust, a penalty must be paid, and we will hold these entities responsible.”

See here for the background. Again, I don’t know why any government entity wouldn’t file suit against VW. They’ve already admitted liability – this is as close to a slam dunk as it gets in civil litigation. How long it takes and how much you ultimately get are open questions, but the winning and losing part isn’t. And hey, now we know what it takes to get Texas to enforce environmental standards. It’s a win all around!

County sues VW for $100 million

Good.

Vince Ryan

Vince Ryan

Harris County on Tuesday set in motion a $100 million environmental lawsuit against Volkswagen, claiming emissions from 6,000 diesel cars circulating on roadways in the region have caused harm to the population. County Attorney Vince Ryan said his review of filings indicated this could be the first government suit against the car company since the executives admitted to cheating on emissions monitoring in diesel cars released since 2009.

Commissioners Court approved the suit Tuesday morning and hired three law firms to handle the matter on a contingency basis. The county plans to file the suit Tuesday afternoon, according to Robert Soard, first assistant county attorney.

The county does not have Volkswagens in its central fleet, according to Dre Dupont, who oversees the vehicles. Instead, the focus of this suit will be on the extent to which the car company and its affiliates violated Texas emissions standards, creating a public health hazard for everyone within the borders of Harris County.

The Press is pretty snarky about this, but as Judge Emmett noted in the Chron story, VW has already admitted liability. Why wouldn’t we sue? I don’t know what the likelihood is of collecting a substantial sum, and it may be that our suit gets consolidated with the many others already out there, but VW deserves all the trouble it’s going to get. Good for Vince Ryan for taking the initiative.

Houston pleads its case to the Supreme Court

We’ll see how they did.

Bill White

Bill White

“The point of all this is to protect the public and the environment, to have clean air, and the TCEQ, for the Texas Clean Air Act, envisions that it be vigorously enforced,” [Houston attorney Robert] Higgason said. “This is what the statute makes reference to — cities being allowed to enact and enforce their own ordinances to achieve the goal of the Texas Clean Air Act.”

BCCA Appeal Group, a coalition of industrial facility owners including ExxonMobil, the Dow Chemical Company and ConocoPhillips, has sued to strike down the ordinances, arguing Houston is exceeding its authority under state law.

“The Legislature has already addressed what cities can do to address this problem…and they’ve turned what should be an administrative and civil regime, that should be consistently applied, into a local criminal statute,” BCAA attorney Evan Young argued. “To convert it from something very different from what the Legislature intended degrades and erodes the meaning of the act.”

[…]

Higgason repeatedly argued that it was incumbent upon cities like Houston to enforce the clean air act where the state agency is unable to do so. “If the TCEQ is letting something go, and not enforcing its own standards, there’s something wrong with that,” Higgason said.

Justice Eva Guzman, a former Harris County district and appellate judge, challenged his stance, asking if local actions might compromise the TCEQ’s right to use discretion in enforcement. She said the TCEQ’s sluggish ability to respond to air pollution violators was not necessarily Houston’s concern.

“When cities exercise their own discretion, that discretion could or could not be consistent with what the TCEQ would have done under their regime,” Guzman said. “It seems to me like that defeats your argument.”

Young emphasized that Houston was indeed allowed to enforce the state’s regulations — so long as it used the state’s preferred method of civil enforcement actions in civil courts.

In contrast, the Houston ordinances allow polluters to be charged in criminal courts, with convictions leading to a range of penalties including fines up to $2,000 per violation for repeat offenders.

“If we’re going to have a statewide, uniform comprehensive regulatory regime that actually gives predictability, it is essential that the TCEQ be involved in that decision-making,” Young said. “If a city wants to enforce the regulations in court, it can do that — by bringing a civil suit.”

See here for the background. The Press, which takes a closer look at the plaintiffs in this action, notes that the stakes are higher than they might appear.

What’s intriguing about this case is that the outcome might ultimately do more than just decide whether Houston has the right to regulate its own air quality. The case gives the Texas Supreme Court the chance to wade into a seldom-explored area of law looking at whether cities have the right to enact local regulations without clashing with state law, according to Law360. Should the high court decide in favor of Houston’s ordinance, that, for instance, could potentially give the city of Denton some legal legs to bring back its anti-fracking ordinance. (Hester, however, contends the chances of that happening are still slim.)

But a ruling against Houston would limit the city’s ability to enact environmental regulations and that would mean the TCEQ would be the agency deciding how to penalize companies that pollute in Houston. “It’s really a question of who gets to make the call on what type of enforcement should take place,” [Tracy Hester, an environmental law professor at University of Houston] says. “If the ordinance is upheld and the city feels like an enforcement action doesn’t address their concerns, then they will be able to have their own enforcement actions.”

So there’s that. Doesn’t make me feel any more optimistic about the likely outcome, that’s for sure. Hope for the best, of course, but I’m not expecting it.

Houston’s environmental protection ordinances go to the Supreme Court

Where, sadly, they’ll likely get killed.

Bill White

Bill White

State environmental regulators don’t adequately enforce air pollution laws, the city of Houston believes, and on Wednesday it will ask the state’s highest civil court to let it keep trying to do the job itself.

The state Supreme Court will hear arguments in a case challenging a pair of ordinances the city enacted in 2007 and 2008 requiring industrial polluters within Houston to register with the city, and subjecting the polluting companies to fines if they operate without registering.

BCCA Appeal Group, a coalition of industrial facility owners including ExxonMobil and the Dow Chemical Company, sued the city seven years ago, claiming the ordinances improperly preempt state law. The First District Court of Appeals has already weighed in on Houston’s side, finding in 2013 that the Legislature had not foreclosed such local regulations with anything resembling “unmistakable clarity.”

In its appeal to the Supreme Court, BCCA argues that the city is allowed to enforce air regulations only if it uses the weaker enforcement tools laid out by the state.

But Houston, and a host of environmental groups filing amicus briefs in the city’s support, say it is perfectly within its rights to enforce state laws using alternative regulatory strategies, including levying fines where the state won’t.

“The city’s looking for accountability, and this is a streamlined way of trying to do that,” said Rock Owens, who co-authored an amicus brief submitted by the Harris County Attorney’s Office. “There should be something that happens if you don’t follow the law, and the [Texas Commission on Environmental Quality] isn’t in a position where they can provide enforcement. They don’t have the resources, or, frankly, the will.”

Owens said he believes the Houston ordinances simply put some muscle behind the regulations the commission laid out. “It’s just a matter of layering — a matter of making the law effective,” Owens said.

[…]

Given how political tides recently have turned against local efforts to police industries, Adrian Shelley, executive director of Air Alliance Houston, said he isn’t optimistic about the city’s chances in front of the state’s highest civil court.

Shelley cited House Bill 40, signed by Abbott in May, which preempts local control over most oil and gas activity, as one reason for his concern.

“I think it needs to be said that there’s a larger trend here — a problematic trend — and that’s bad for public health in Texas,” Shelley said. “We’re likely to lose this case.”

See here and here for some background on this, which was an initiative of then-Mayor Bill White. I’m sure I have more entries on this, but my older archives aren’t quite as organized. I wish I was more optimistic about this, but I think Shelley nails it. As the story notes, Greg Abbott supports the BCCA, because of course he does. Local control only matters to Abbott when the locals are doing things he approves of. We should know in a few months how the Court rules, and I guess you can add this – “what, if anything, should the city do to improve air quality if the Supreme Court invalidates the city’s air quality ordinances of 2007 and 2008?” – to the list of questions that we ought to be asking the Mayoral herd. See this op-ed by Adrian Shelley and Jen Powis for more.

Split decision on cross-state air pollution rule

Not too bad, actually.

Texas’ Republican leaders and environmentalists are both claiming victory Tuesday following an appeals court ruling that requires the federal government to ease limits on certain emissions for Texas and a dozen other states.

The U.S. Court of Appeals for the D.C. Circuit on Tuesday ordered the Environmental Protection Agency to revisit caps on nitrogen oxide and sulfur dioxide emissions — set in an effort to limit the effects of air pollution across state boundaries. But the court also upheld the agency’s right to enforce such a regulation.

Texas was among 13 states, joined by industry and labor groups, that sued over the so-called Cross-State Air Pollution rule in 2011, challenging the EPA’s framework and complaining states weren’t given enough time to comply.

The regulation requires Texas and other “upwind” states in the South, Midwest and Appalachia to cut certain emissions that contribute to air pollution in East Coast states like New York.

In a 6-2 decision last year, the U.S. Supreme Court largely upheld the rule in a major win for the Obama administration. But the justices told the lower courts to resolve lingering questions about how to implement it.

Tuesday’s ruling addressed those issues, with the court noting “the petitions for review are therefore granted in part and denied in part.” It opted to leave the current emissions rules in place as the EPA revises them.

See here for the background. The DC Court had previously ruled against the CSAPR, but SCOTUS overruled them. The EDF explains what this ruling means.

The D.C. Circuit Court decision recognizes that, when the Supreme Court upheld the Cross-State Air Pollution Rule in April of 2014, it affirmed EPA’s fundamental methodology for implementing the “good neighbor” protections of the Clean Air Act. Today the D.C. Circuit Court granted claims by Texas and other states challenging particular emissions budgets while firmly rejecting associated requests to vacate the state-based emissions protections and rejecting several additional fundamental legal claims.

The court directed EPA to carry out additional analyses on remand, stating, “We remand without vacatur to EPA for it to reconsider those emissions budgets. We reject all of petitioners’ other challenges to the Transport Rule, including all of their facial challenges to the Rule. (Decision, page 36, emphasis added)

The rule’s life-saving pollution reductions remain in full effect.

So that’s pretty good. I trust the revised rules the EPA comes up with will also be pretty good. Tough luck, polluters.

SCOTUS gives polluters a win

Alas.

Martin Lake coal plant

Martin Lake coal plant

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

Abbott signs pollution enhancement bill

Still sucks to be us, Harris County.

San Jacinto River waste pits

Gov. Greg Abbott has signed legislation that could make it tougher for local governments to sue big-time polluters – an effort that largely targets Harris County prosecutors.

House Bill 1794, set to become law on Sept. 1, will set a five-year statute of limitations and cap payouts at about $2 million when counties sue companies that have fouled their water or air. It’s another win for a wide range of business groups in a rough legislative session for environmental advocates.

Rep. Charlie Geren, R-Fort Worth, and Sen. Kelly Hancock, R-North Richland Hills, pushed the bill through both the House and Senate, drawing little debate.

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

“If someone is remediating the violations they have, I don’t believe they should be assessed these additional penalties,” Geren said in an interview last month. “I don’t believe it’s a setback for environmentalists at all because we didn’t take away any authority from the [Texas Commission on Environmental Quality].”

Environmentalists beg to differ. With other critics, they say state environmental regulators don’t do enough to hold polluters accountable, and that limiting local suits would encourage more pollution that jeopardizes public health.

“It is a terrible bill, and it is designed to protect polluters,” Terry O’Rourke, special counsel with the Harris County attorney’s office, told The Texas Tribune last month. “That’s all it is: It is a polluter protection bill.”

See here and here for the background. You know how I feel about this, and I can’t say it any better than Terry O’Rourke just did. So here’s a little blast from the past to bring it on home:

The more things change, y’all…

Local control still under assault

Sucks to be us, Harris County.

San Jacinto River waste pits

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

Once again to SCOTUS for Texas and the EPA

Plus ca change, and all that.

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

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

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

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

[…]

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

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

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

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

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

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

Local control deathwatch: Environment

Unsurprisingly, the Denton fracking ban has provoked a strong reaction.

As policy dilemmas go, the one triggered when Denton voters decided last fall to ban hydraulic fracturing in their city looked like a whopper: The oil and gas industry versus local control — two things Texas holds dear — in intractable opposition. There seemed little doubt lawmakers would weigh in upon their return to Austin.

But four months after the North Texas city’s historic vote, top state lawmakers don’t appear to be scratching their heads. Petroleum is winning hands down, and local control appears headed for a beating.

Several legislative proposals so far leave less wiggle room for Texas cities to regulate oil and gas production. 

“We need to restate that principle that the state has responsibility to regulate the oil and gas industry,” said state Rep. Drew Darby, R-San Angelo, who chairs the House Energy Resources Committee. “I don’t know where people might have believed that the state was not going to assert fully its rights to regulate that.”

Texas lawmakers this session have filed at least 11 bills that would discourage local governments from enacting or amending certain drilling rules. Meanwhile, those watching legislation on the issue say they haven’t noticed one proposal to bolster – or even support – local control on petroleum development.

“We didn’t expect these to be just completely one-sided,” said Bennett Sandlin, executive director of the Texas Municipal League. “Instead, they’re swinging for the fences, and it’s quite alarming.” 

The trend is part of a broader debate — touching on issues including plastic bag bans and sanctuary cities — that some Republicans have sought to reframe as a debate about the size of government.

Supporters of Denton’s fracking ban “accused me of violating my conservative principles, arguing that since a local government passed a measure, any attempt to overturn it would be using ‘big government’ to squash dissent,” state Rep. Phil King, R-Weatherford, wrote in a recent op-ed in the Fort Worth Star-Telegram. “They have it backwards, because ‘big government’ is happening at the local level.”

One of King’s bills would require cities to get the attorney general’s blessing before enacting or repealing any ordinance by voter initiative or referendum, the tool Denton activists used to push that city’s fracking ban. Another would require cities that tighten drilling regulations to reimburse the state for any lost tax revenue.

Other bills have addressed compensation for mineral rights owners harmed by a local ordinance, while legislation from state Sen. Konni Burton, R-Colleyville, gets right to the point of the Denton debate: It would ban fracking bans.

Perhaps the most controversial proposals, however, are those most likely to pass. Identical bills from Darby and Sen. Troy Fraser, R-Horseshoe Bay, chairman of the Senate Committee on Natural Resources, would limit cities’ power to regulate the industry to “surface activity that is incident to an oil and gas operation, is commercially reasonable, does not effectively prohibit an oil and gas operation, and is not otherwise preempted by state or federal law.”

Texas law says the state intends its mineral resources to be “fully and effectively exploited,” but courts have said the power isn’t absolute. The Texas Railroad Commission oversees the state’s oil and gas industry, with authority to adopt “all necessary rules for governing and regulating persons and their operations.” Local governments have the right to impose reasonable health and safety restrictions, and the Legislature has granted most Texas cities the power to “regulate exploration and development of mineral interests.” 

See here for past coverage. I would have voted for the Denton ban, but I can understand the objections to it. Mineral rights are complex in Texas, and anyone who had such rights within Denton could reasonably complain that his or her property was taken away. It’s also generally better to have a uniform regulatory environment to facilitate business compliance. But that gets to the crux of the matter here, which is that the regulatory environment in Texas is a joke. The Railroad Commission is a complete lapdog for corporate interests. It’s precisely because activists in Denton felt they were being ignored and pushed aside that they sought out an alternate remedy. If we had a useful, functioning Railroad Commission, we would not have had this ballot referendum or interest in having such a referendum in other cities. This is not hard to understand, but the campaign coffers of people like Phil King and Konni Burton depend on them pretending to not understand it.

And speaking of the environment.

In another fight over local control this session, state Rep. Charlie Geren (R-Fort Worth), one of the more powerful lawmakers in the House, is pushing a bill that would erode the ability of cities and counties to collect civil penalties from polluters. This morning, Geren described the latest version of his House Bill 1794 to the House Environmental Regulation Committee as a way to curb “lawsuit abuse” by capping the maximum penalties that can be assessed on environmental violators at $4.3 million and imposing a five-year statute of limitations on the filing of lawsuits.

The legislation appears to be a response to high-profile litigation between Harris County and three companies considered liable for the San Jacinto River waste pits, an EPA Superfund site that has been leaking dioxins into the San Jacinto River and Galveston Bay for decades.

While Geren jettisoned some of the most far-reaching parts of the original version of HB 1794—a requirement for local governments to prove that a company “knowingly or intentionally” violated the law, for example—local authorities and environmentalists said they were still opposed.

Tom “Smitty” Smith, the veteran head of Public Citizen’s Texas office, said cities and counties need the ability to force polluters to pay civil penalties because state enforcement of environmental laws is so weak.

“We think the [Texas Commission on Environmental Quality] is a toothless tiger,” he said. The agency doesn’t have the resources or “the guts to go after biggest polluters.”

[…]

County- or city-led lawsuits seeking penalties from water polluters are relatively rare, but Harris County, with its vast petrochemical facilities, 20 known Superfund sites and loose rules that allow homes next to industry, is probably the most litigious. In the last 19 years, the county has issued 18,000 violation notices to companies and filed 205 civil actions, said Cathy Sisk, a retired environmental attorney with Harris County. She said the county only resorted to the lawsuit because the three successor companies hadn’t done anything to clean up the site, even going so far as to defy EPA’s orders.

“We feel like in those cases we need a hammer,” she said.

Harris County Commissioner Jack Cagle, a Republican, made a pitch for keeping local control. “Government is best when it’s closest to the people,” he said. Sometimes, state officials are “removed from the passion of the folks who actually live in the neighborhoods, where we work, where we breathe, where we play and live.”

HB 1794 was left pending. A companion bill in the Senate, SB 1509, by Sen. Kelly Hancock (R-North Richland Hills) has yet to be assigned a committee.

Indeed, the TCEQ is as useless as the Railroad Commission and as deeply in the pocket of the people and businesses they are supposed to regulate. What else is one to do but take the avenue that is available? If you don’t want the Harris County Attorney filing so many lawsuits against polluters, then provide a regulatory agency that will, you know, actually regulate. That includes going after the bad actors and levying punishments as needed. Again, this is not hard to understand. It should not be this hard to do.

Yes, we can cut back on coal

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

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

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

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

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

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

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

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

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

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

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

ERCOT acknowledges that meeting EPA clean air requirements won’t be that big a deal

From Texas Clean Air Matters:

ERCOT

Well, it didn’t take long before the Electric Reliability Council of Texas (ERCOT) released, at the request of Texas’ very political Public Utilities Commission, another report about the impacts of the Environmental Protection Agency’s (EPA’s) rules designed to protect public health.

This time ERCOT, which manages 90 percent of Texas’ electric grid, looked at the impact of seven EPA clean air safeguards on the electric grid, including the Cross State Air Pollution Rule (CSAPR), the Mercury Air Toxics Standard (MATS), the Regional Haze program (all of which go back before the Obama administration), the proposed Clean Power Plan, which would set the first-ever national limits on carbon pollution from existing power plants, and others. What was surprising to learn, though, is that after power companies in the state start complying with EPA’s other clean air protections, the proposed Clean Power Plan poses a minimal incremental impact to the power grid. We would only have to cut 200 megawatts of coal-fired generation, which equates to less than one coal-fired power plant.

For as much doom-and-gloom we heard last month in ERCOT’s report about the Clean Power Plan, they certainly seem to be singing a different tune this go-around. The new report shows that Texas can go a long way toward complying with the Clean Power Plan by meeting other clean air safeguards, for which Texas power companies have had years to prepare.

Very soon power companies in Texas will install control technologies to reduce multiple – not just one – pollutants, thereby making compliance with EPA’s subsequent regulations easier and more cost-effective. In the end, Texas will only need to take a minimal amount of additional aging coal plants offline by 2029.

Plus, other energy resources, like energy efficiency, rooftop solar, and demand response (which pays people to conserve energy when the electric grid is stressed) are gaining ground every day in Texas. They have proven to be vital resources on the power grid that help reduce electricity costs for Texas homes and businesses.

Energy efficiency, in particular, provides significant reductions in power plant emissions, including carbon dioxide, sulfur dioxide, and ozone-forming pollutants, and has a four-to-one payback on investment. This is the type of performance worth investing in.

See here for the background, and click over to read the rest. In addition to what the EDF says above, complying with the new regulations would also save a ton of water, which is a pretty big deal in and of itself. So let’s have less whining – and fewer lawsuits – and get on with the compliance. It’s a win all around.