EPA Flexes Federal Muscle on Texas Air

On June 30, Environmental Protection Agen­cy Regional Administrator Al Armen­dar­iz took decisive action to clean up air pollution in Texas by invalidating all 122 "flexible" air-quality permits issued by the Texas Commission on Environmental Quality. The industrial polluters that now must apply for federal permits are primarily Gulf Coast oil and chemical refineries, run by corporations that include ExxonMobil, Shell Oil, BP, Valero, and Chevron Phillips; locally, the coal-fired Fayette Power Project that provides electricity to Austin Energy and Lower Colorado River Authority customers also is on the list. The Texas flex permit program has long been criticized as ineffective by environmental organizations. The EPA decision effectively agrees that flexible permits may be allowing Texas polluters to endanger Texans by emitting higher-than-allowed levels of chemicals that cause cancer, asthma, and other health problems.

To soften the immediate effects of its decision, the EPA is offering an amnesty and self-audit option for Texas permit holders, in theory allowing them to achieve compliance without aggressive enforcement action.

Texas Gov. Rick Perry immediately issued a statement flexing his states' rights muscles. In running for re-election, Perry has taken a brusque anti-Washington posture; his book, Fed Up, will hit bookstores in November. "Texas will continue to fight this federal takeover of a successful state program," he declared in a June 30 statement, criticizing the EPA as "blinded by its activist agenda."

But a number of environmental experts and attorneys around the state said there is no factual basis for claims made in the governor's statement. Perry attacked the EPA action as "irresponsible and heavy-handed." Charles Irvine, an environmental lawyer with Blackburn & Carter in Houston, has represented numerous clients before TCEQ and handles air permit and Clean Air Act matters. He countered: "What EPA has done is exactly what is written in the federal Clean Air Act. If EPA finds that some portion of a state program does not comply with fed law, the Clean Air Act says, 'It shall disapprove' – so it has to disapprove it. Stepping in and taking over these permits is what is required."

Perry claimed that the TCEQ's program "has achieved a 22 percent reduction in ozone [smog] and 53 percent reduction in [nitrogen oxide] from regulated sources since 2000." (Nitrogen oxide and ozone pollution are linked to asthma and respiratory illness in children and the elderly, according to the EPA; ozone also can cause permanent lung damage.) Irvine said Perry cites percentages, not absolute numbers, because Texas started out with some of the worst emissions in the nation for nitrogen oxide and ozone.

"The numbers Perry is using are a classic example of 'How to lie with statistics," wrote James Marston, who leads the Envi­ron­mental Defense Fund Texas office in Austin. "Perry is cherry-picking statistics, using biased base years and final years; 2000 was a bad ozone year and 2008 [due to weather] was a particularly good ozone year. Improving air quality does not mean that we have good air quality," continued Marston. "The American Lung Association ranks the Houston [seventh] and DFW [13th] metro areas among the nation's 15 worst for ozone air pollution (using 2006-2008 data)."

Perry's statement claims, "Texas' air quality program has outperformed federal programs in virtually every category." But environmental experts interviewed said the state cannot take credit for recent improvements in air quality; those have in fact resulted from tighter federal standards, they said, as well as lawsuits brought by environmental groups to force compliance. Matthew Tejada, executive director of Air Alliance Houston, said, "It is ridiculous to state that Texas' air quality has 'outperformed' federal standards when, just two years ago, Gov. Perry asked for a full decade extension for the Houston region to meet federal requirements."

Unaddressed by Perry's statement were the health issues that underlie federal standards for clean air permits. "Texans deserve the same clean air protection as citizens of every other state, and TCEQ's flexible permitting program has been denying all of us that right for nearly 20 years," said Luke Metz­ger of Environment Texas. "The Clean Air Act is the same law that polluters in all other 49 states have to follow, and it's time that polluters in Texas follow it, too."

"EPA's decision about Texas' flexible permits is merely symptomatic of a larger problem with the way Texas leaders view clean air protection," noted Ilan Levin of the Environ­mental Integrity Project. "Polluters' interests get priority over public health nearly every time."

Perry stated of the EPA action, "It will also likely curtail energy supplies and increase gasoline prices nationwide." He cited no evidence to support that claim, noted Irvine. "Gasoline prices as we have seen in recent years are tied to international markets, and have little to do with the cost of production," said Marston. "It's a ridiculous statement to say that these actions would curtail energy supplies," said Tejada. "The cost of a gallon of gas is primarily predicated on the cost of a barrel of oil."

In this campaign year, Perry has repeatedly cast the EPA's takeover of air permitting in Texas as a states' rights issue, citing "our rights under the 10th Amendment." (It states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.")

"What he's complaining about, in terms of states' rights, legally is a very weak argument," said attorney Irvine. "The federal Clean Air Act has survived all sorts of legal challenges. Every court that has looked at the issue has found that the Clean Air Act was a fully constitutional and proper exercise of federal power. The 10th Amendment, as a legal concept, is really very narrow. It gets mentioned a lot, but very little gets struck down under it."

Texas Attorney General Greg Abbott sued the EPA in the 5th Circuit Court earlier this year to block two other actions: the EPA's move to regulate greenhouse gases and Armendariz's reversal of TCEQ-issued "qualified facilities" air permits. The A.G. could file a similar complaint regarding flex permits. But in Irvine's opinion, "to bang the table and complain about a rogue agency may play well in an election year," but based on legal precedent, "a Texas challenge probably would not go very far."