Judge Won’t Let Texas and EPA Delay Air Cleanup Again

(CN) — The Trump administration cannot put off a plan to curb air pollution from Texas power plants until 2019, a federal judge ruled, refusing to further delay a process that’s dragged on for nearly a decade.

Touting a new spirit of “cooperative federalism” between the Environmental Protection Agency and Texas that was said to be lacking under former President Barack Obama, Texas and the EPA asked U.S. District Judge Amy Berman Jackson, in the District of Columbia, to give Texas until Dec. 31, 2018 to submit a plan.

Berman Jackson declined. In her Aug. 31 ruling, she gave the EPA until Sept. 9 to submit a plan of its own.

The EPA’s Regional Haze Rule requires state and federal agencies to work together to improve visibility in 156 national parks and wilderness areas by reducing pollution.

Industry-friendly Texas is the only state without a plan to clean up its coal-fired power plants. Coal plants emit sulfur dioxide that forms haze.

Texas has more than a dozen coal-fired power plants, with the capacity to generate 19,000 megawatts of electricity.

In Texas, the haze rule is meant to clear the skies above Big Bend National Park and Guadalupe Mountains National Park, both in West Texas near El Paso.

Texas’s battle with the EPA started in 2009 when the agency rejected a plan submitted by the Texas Commission on Environmental Quality.

The Sierra Club, the National Parks Conversation Association and other environmental groups sued the EPA in August 2011 in District of Columbia Federal Court. They claimed the agency had missed its Jan. 15, 2011 deadline to complete a Federal Implementation Plan “to prevent and remedy unhealthful, scenery-impairing pollution” in Texas.

The EPA finally finished a haze-control plan for Texas in January 2016, prompting the state and several power companies to sue the agency in the Fifth Circuit Court of Appeals in March 2016.

Texas claimed that the federal plan would require pollution-control upgrades at 15 power plants at a cost of $2 billion, making the state’s power grid less reliable because some operators would find the upgrades too expensive and would shut down.

After a three-judge panel of the Fifth Circuit sided with Texas and the power companies and stayed the rule, the EPA said in December it would work out a compromise plan.

Texas and the EPA have been working together since President Donald Trump took office and appointed Scott Pruitt as chief of the EPA.

Pruitt sued the EPA 13 times during his tenure as Oklahoma attorney general. As EPA chief he has targeted Obama-era programs aimed at reducing greenhouse gases that he calls overly burdensome for states.

With Pruitt in charge, the EPA lets states take the lead in pollution-control plans. Texas and the EPA signed an agreement on Aug. 14 in which the EPA endorsed Texas’s proposal for an interstate cap-and-trade program rather than power plants upgrades.

The Texas Commission on Environmental Quality and EPA asked Berman Jackson to give Texas until Dec. 31, 2018 to submit its plan, but the judge said she’s unwilling to wait another 15 months.

“It is true that the cooperative federalism ideal is incorporated into the statutory scheme, which calls for state implementation plans to be the starting point. But the statute also mandates that the federal government must step in if a state’s submissions are late or insufficient,” Berman Jackson, an Obama appointee, wrote in a 9-page order.

The EPA did not reply to a request for comment on Berman Jackson’s order. The Texas Commission on Environmental Quality declined to comment. The commission said the details of its cap-and-trade program have yet to be determined.

Sierra Club senior attorney Elena Saxonhouse told Courthouse News the program would set caps on the amount of pollutants power plants can emit, and plant operators could comply by meeting their cap or purchasing credits from other plants that have reduced their emissions below their caps.

“Even if the caps are set at a lower level than current emissions, a trading program does not control where geographically the reductions occur,” Saxonhouse said. “The upshot is that one part of the state could see some cleanup while others still bear the brunt of the pollution.”

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