Fifth Circuit rules for EPA against Texas

It’s always a pleasure seeing our litigious Attorney General get slapped down by whatever court he’s bothering this week.

Martin Lake coal plant

In the latest turn in a saga pitting environmental regulators in Washington against those in Austin, a panel of federal judges on Friday sided with the federal Environmental Protection Agency in its effort to tamp down Texas pollution.

The state and the Business Coalition for Clean Air Appeal Group — a group that includes petroleum refiners, chemical manufacturers, electric utilities and other large industrial sources of air emissions — had argued that the EPA had acted capriciously, abused its discretion and exceeded its authority when it rejected a portion of the state’s air permitting program.

A four-judge panel of the New Orleans-based 5th Circuit said it did not.

The weird thing about this is that I can’t tell what lawsuit this is. I think it’s the one about the EPA’s rejection of the TCEQ’s flex permitting program, but it could be the one about the EPA’s authority to regulate greenhouse gases. The story doesn’t give enough detail for me to tell, and for whatever the reason it’s the only such story I can find. If it’s the former, the state and the EPA may be on the verge of a deal in which the EPA would give its approval to the TCEQ. They almost had a deal two years ago, so assume nothing is set in stone just yet. It’s also not clear what effect such a deal would have on the ongoing litigation.

In related news, the EPA also announced it would begin enforcing a stricter soot standard. In this case, the EPA was goaded into action by a lawsuit filed by states such as New York and California that were tired of waiting for the agency to implement a promised review of that provision of the Clean Air Act. This action could have an effect around here.

Harris County would be out of compliance if the EPA sets the standard at the lower end of the range or gets even tougher with the final rule, according to the Texas Commission on Environmental Quality. No other Texas county is in jeopardy of violating the limits.

[…]

Gina McCarthy, the EPA’s air quality chief, said Harris County and others should not need pollution controls beyond those current and proposed rules require.

“It is unique to put a standard out there when we are already headed in that direction,” she said of the proposed limits, which came under a court-ordered deadline.

Environmentalists, however, said the EPA’s projections for Harris County may be too rosy. The area nearly fell out of compliance because of high levels of soot along the Ship Channel in 2009.

Monitoring shows the air near along the heavily industrialized channel is getting cleaner because of new rules for idling trucks and the paving of gravel lots. The Port of Houston, meanwhile, is expecting more freight with the 2014 opening of a wider Panama Canal.

Matthew Tejada, executive director of the environmental group Air Alliance Houston, said federal regulators are making a “fairly foolish assumption” because no one has looked at how the port’s expansion will impact soot levels.

“If things stay steady, we should be fine,” Tejada suggested. “But we are trying to grow a port, and nobody is asking themselves, ‘Are we building ourselves into non-attainment?’ ”

According to a recent conversation between the Chron’s editorial board and County Judge Ed Emmett, port expansion is on the menu, at least theoretically. So this is something to keep an eye on.

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• EPA and TCEQ settle lawsuits over flex permits
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