The EPA assault on Texas

The EPA assault on Texas

by J.E. Dyer


The necessary precondition for Texas’s unique economic success – a beacon in a deep recession – is energy. And the EPA is closing in for the kill.

This would be one thing if Texas were an outlier among the 50 states in terms of dirty air or an otherwise demonstrably imperiled environment. But the truth is closer to the opposite: the air in Texas has been getting cleaner; in the urban areas, much cleaner. And in spite of being by far the largest electric power producer of the 50 states, and heavily reliant on coal, Texas has been steadily reducing its emissions of the EPA’s least-favored compounds from coal combustion (e.g., sulfur dioxide and nitrous oxide). Its emissions of NOx and SO2 are substantially lower than the national average; Texas is ranked the 11th lowest in NOx emissions (.098 lb/mmBtu in 2009, versus a national average of .159 lb/mmBtu), and 24th in SO2 (.309 lb/mmBtu in 2009, versus a national average of .458 lb/mmBtu).

But the EPA isn’t really making the argument that Texas is an environmental pigsty. It’s not putting any data or findings behind that premise, at any rate. Instead, it is simply acting high-handedly, assuming an authority that nothing in written law confers on it, to pronounce Texas’s procedures in violation of EPA rules – even when there is no basis for making that claim. To put it bluntly, the EPA is making a power grab.

Overriding the state air-permit system

There are three principal facets to the power grab. One began with an EPA decision in January 2010 that the Texas air-permit program was invalid, and that every facility operating under such a permit in the state would have to be re-permitted. The argument was not that Texas plants were emitting too much. Rather, as the Wall Street Journal puts it, the Texas “air-permit program … caps emissions of air pollutants from an entire facility, but the EPA wants to scrutinize and restrict emissions from every polluting unit of a plant.” Texas, along with a number of other states, is concerned that regulating on the EPA’s basis will cost considerably more, without improving air quality.

Neither of the two approaches can claim to be the obvious intent of the Clean Air Act. In default of a clear intent in written law, the point at issue is whose judgment ought to prevail in this matter. Texas argues that federalism was a key component of the Clean Air Act, and properly so; that’s how things work in the United States. The EPA is supposed to set air quality standards, and then the states choose their methods to meet them. Other states agree.

The EPA has made no philosophical arguments to justify its regulatory ukase – but, of course, it doesn’t have to. It is currently operating under a chief executive who endorses its approach and doesn’t require it to justify what it wants to do. Reining it in would require concerted action from Congress, and/or a favorable ruling for the states in a lawsuit.

Keep in mind that throughout the 16 years in which Texas issued its industrial air permits, air quality in Texas improved – a lot. The Texas system wasn’t failing to produce a compliant outcome. And it took the EPA 16 years to decide, in spite of that record of success, to invalidate all the existing state-issued permits. The motivation was clearly political.

The war on coal; New draconian air-quality standards

The permit invalidation was just the beginning, however. The second facet of the power grab, the Obama EPA’s war on coal, will have at least as damaging an effect on Texas as on other states, and in some ways perhaps more. The war on coal is part of a larger regulatory assault on emissions and industrial byproducts of all kinds, which will, if implemented as intended, ensure life as we know it cannot continue in the United States. The impact on Texas is discussed in the testimony submitted to Congress by the Texas Public Policy Foundation (TPPF) in March.

The findings include the likelihood that the new regulations adopted by the Obama EPA will shut down more than 5700 MW of electrical generating capacity in Texas, or about one-twelfth of the peak demand levied by state users in the last couple of years. Meanwhile, based on economic trends, Texas expects to need as much as 25% more capacity by 2020. TPPF cites industry and independent think-tank estimates that the cost of compliance with the new EPA standards will be in the hundreds of billions of dollars, and will thus drive utility costs – and therefore the cost of living – up significantly, while at the same time eliminating thousands of jobs in many industries.

From regulating the naturally-occurring fine dust in the countryside, to treating the byproducts of coal combustion as hazardous waste, and preventing them from being sold for use in cement, the EPA’s proposals would shut down one aspect of human economic life after another.

TPPF gets in a number of good points about both the politics and the data; for example, it observes on p. 6 of the document that the EPA got around the rules governing its implementation of the new regulations by deeming its proposed action (dramatically tightening air quality standards) to be deregulatory. How did it do that? By positing that a comprehensive scheme of regulation would involve issuing permits for 6 million sources of emissions, and deciding instead to “tailor” its program to cover only large sources (e.g., the 12,000 emitters that currently require permits to operate).

Just imagine how we could fleece our fellow men if we all had the power to declare it “deregulation” – mercy, relief, a benefit to the regulated – when we don’t do as much as we could have done. There is a distinctly mafia-like ring to that thought process.

The TPPF testimony also alludes to the EPA’s extremely shaky case that fuel-burning plants need to have their mercury emissions reduced by 91% (mercury emissions from US industry have already been reduced considerably in the past 30 years). A number of studies suggest that many coal-fired electrical plants will simply find this impossible.

And there doesn’t appear to be a pressing need for it anyway. Besides the facts that the entire United States power sector emits only 1% of the globe’s anthropogenic mercury output, and that 50% of the mercury in the Atlantic is emitted from Asia, not the US (virtually all the human-emitted mercury in the Pacific comes from Asia), everything in the alarmist case about mercury is either undemonstrated (e.g., that mercury levels in fish have been rising), or wildly overestimated (e.g., the incidence of mercury in child-bearing women in the US, and how that compares to the level of mercury considered dangerous to humans). See here and here for evidence and counterarguments.

But wait – there’s more. If you’re wondering how Texas is going to make up that 5700+ MW of power-generating capacity, so is Texas. Nuclear power would do the trick, of course, but as TPPF observes, new nuclear power plants are an iffy proposition in the wake of the Fukushima disaster. Wind, solar, and biomass are laughably uneconomic sources, and wind and solar are unreliable as well.

Shutting down natural gas

But what about natural gas? The EPA is way ahead of us, with the third facet of its power grab. Ben Voth wrote a piece for American Thinker in January calling out the new EPA assault on the production of natural gas in Texas. And if you think the EPA’s particular beef is with fracking (hydraulic fracturing) chemicals, think again. The basis for the EPA’s abrupt move against a Texas natural gas driller in December 2010 was methane and benzene found in local water.

It all fit nicely with the emotional appeal of the “documentary” Gasland, which did for the natural gas industry what Michael Moore did for 9/11. The problem is that not only was Gasland full of errors and misrepresentations, the EPA case against Range Resources in Texas was full of holes as well. Based on analysis of their nitrogen content, the methane and benzene in the afflicted water came not from the natural-gas drilling by Range Resources, but through natural seepage from a shallower nearby gas formation – one that is not being drilled. In other words, there’s nothing humans could have done to prevent the seepage.

(The Energy in Depth write-ups point out also that methane is a naturally occurring gas and the hazards of its presence in drinking water depend, as with so many things, on concentration. They also cite a study by the Texas health authorities which demonstrated that benzene exposure in the gas-drilling areas of Texas is no higher than it is in the rest of the US, and that the only residents who have elevated levels of benzene are smokers.)

But subsequent testimony from EPA staffers, part of a reconstruction of the December 2010 decision to shut down the Range Resources drilling operation, showed that the EPA did not even consider the possibility that the methane and benzene appeared naturally in the water in question. This failure fit well with other patterns in the EPA action; the reconstruction (see the second EID link) indicates that it was an instance of activists and the EPA working together to jump the gun.

Senator Jim Inhofe (R-OK) is pursuing this issue. The Republicans in Texas’s congressional delegation have sent a letter to Cass Sunstein expressing strong disapproval of the EPA’s failure to abide by its own rules in implementing the new air quality and emissions regulations. As Pajamas notes, the International Brotherhood of Electrical Workers has sent a letter of its own decrying the new regulations – although the Texas Democrats have remained silent.

The fight continues among the states. At least 15 (including Texas) filed suit against the EPA over its “climate-change” regulations in 2010, even before the full slate of new air quality/emissions regulations were published. On the other side are 16 states

fighting back on behalf of the EPA, saying without regulations, climate change will adversely affect them.

Those states are: Arizona, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington.

Remarkably, the states “fighting on behalf of the EPA” include the ones with the biggest state deficits, the ones with the highest taxes, the ones with the highest unemployment, and the ones hemorrhaging businesses and revenues and losing seats in Congress after the 2010 census. One principles-of-governance note: as long as there is an EPA, any president can put people in it who will abuse the agency’s portfolio. The courts are incompetent to decide how much the EPA “should” be doing. That’s a political decision that belongs in Congress – and we need to be telling Congress to do things differently.

J.E. Dyer’s articles have appeared at The Green Room, Commentary’s “contentions,” Patheos, The Weekly Standard online, and her own blog, The Optimistic Conservative.