Governor Abbott Challenges Federal EPA On Proposed Regional Haze Regulations
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Governor Greg Abbott submitted comment to the federal Environmental Protection Agency (EPA)’s Air Planning Section regarding the agency’s proposed “regional haze” rule and the its unlawful attempt to force a federal implementation plan on Texas in place of an already-developed state implementation plan.
“The EPA’s latest attempt to infringe on Texas’ state sovereignty is yet another example of an overreaching federal government run amok,” said Governor Abbott. “The EPA’s proposed action is unlawful on multiple fronts, and perhaps most egregiously it would impose a $2 billion burden in compliance costs and threaten the reliability of Texas’ energy grid – without any discernable benefits.”
Governor Abbott’s comment was submitted to the agency in addition to comment from the Texas Commission on Environmental Quality (TCEQ) after the EPA proposed to partially disapprove Texas’ state implementation plan and instead force Texas to adopt a federal implementation plan carrying a price tag of $2 billion.
In his comment, Governor Abbott exposed numerous reasons the EPA’s proposed action is unlawful and unjust, including:
The EPA does not have the authority to regulate invisible haze – yet that is what they are attempting to do: “EPA’s proposed decision…would do nothing to improve visibility…The Clean Air Act gives EPA authority only over the ‘impairment of visibility’…The statue obviously does not give EPA the authority to regulate invisible haze.”
The EPA oversteps its statutory authority by imposing a $2 billion compliance cost on Texas: “[C]ost alone renders the FIP unlawful. EPA has a statutory obligation to ‘take into consideration the costs of compliance.’”
The EPA’s proposed action arbitrarily discriminates against the State of Texas by imposing a different standard on Texas than it has on California. “It appears the EPA has devised one set of rules for States it likes and another set for States it dislikes…EPA’s capricious discrimination violates the ‘fundamental norm of administrative procedure [that] requires an agency to treat like cases alike.’”
The EPA’s proposed action violates the Commerce Clause in the U.S. Constitution: “EPA concedes that the majority of ‘regional haze’ in Big Bend and the Guadalupe Mountains comes from non-regulated conduct…EPA cannot then turn around and regulate ‘regional haze’ on the theory that regulated conduct – like carbon emissions from coal-fired power plans – will have some effect on interstate commerce.”
The EPA’s proposed action is based on outdated data from 2009. “Because EPA took almost six years to act on Texas’ proposed [state implementation plan], EPA did not have the up-to-date facts…if EPA had bothered to look, it would have discovered that the haziness conditions in Big Bend and the Guadalupe Mountains are much better today than Texas projected way back in 2009.”