Texas Tailors the Tailoring Rule
| Author | John Pendergrass |
| Position | Director of ELI's Center for State, Local, and Regional Environmental Programs |
| Pages | 10-10 |
Page 10 ❧ THE ENVIRONMENTAL FORUM Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, Sept./Oct. 2010
By John Pendergrass
Texas Tailors the
Tailoring Rule
Texas and the U.S. Environmen-
tal Protection Agency seem to be
locked in a long-term struggle over
the state’s air pollution permitting
program. In a letter dated August 2,
Texas Attorney General Greg Abbott
and Chair of the Commission on
Environmental Quality Bryan Shaw
announced the state’s refusal to in-
terpret its air permit rules in accord
with EPA’s suggested approach with
respect to greenhouse gas emissions.
is follows just a month after EPA
disapproved the state’s flexible permit-
ting rule, which allowed facilities to
obtain a permit for the total emissions
from the facility as a whole rather than
permit each individual air pollution
source, as required by EPA rules.
e state’s letter responds to a re-
quest EPA included in the “tailoring
rule” that states inform it by August
2 whether they would interpret and
apply their own permitting rules in
a manner consistent with EPA’s new
rule requiring permits for facilities
that emit more than 75,000 tons per
year of carbon dioxide equivalents.
e letter summarizes legal arguments
for why the state cannot apply its per-
mit rules as EPA desires and refers to
the fact that the state has challenged
the legality of the tailoring rule in
the federal Court of Appeals for the
D.C. Circuit. Although other states
have also challenged the tailoring
rule, none seem to have gone as far as
Texas in refusing to engage in any part
of the process EPA has prescribed for
implementing the new GHG emis-
sions permitting rules.
e tailoring rule and the proce-
dures for states to adopt their own
versions of the permitting rules dem-
onstrate the Byzantine nature of the
Clean Air Act and EPA’s rules for
implementing it, including approv-
ing states to take over permitting and
other regulatory responsibilities under
the act. Each side can easily cite pro-
visions of the law and regulations in
support of its position, judicial inter-
pretations of those provisions, and, in
the Texas letter, the U.S. Constitution,
Texas Constitution, state statutes, and
regulations. As the latter references
suggest, the dispute also involves the
fundamental issue of how authority is
distributed between the national and
state governments.
Although the two officials made
no reference to EPA’s disapproval of
the state’s flexible permit rule, it cer-
tainly provides context for this most
recent dispute. e
facility-wide cap ap-
proach used by Texas
allows plants greater
flexibility in modify-
ing their operations
and requires less ad-
ministrative effort by
the state than the EPA requirements
for permits for each individual source
of pollution within a facility. e
concept has been under discussion
for decades and EPA encouraged ex-
periments with the approach in the
past, but more recently the agency
concluded that it lacked authority to
approve state programs that relied on
facility-wide caps.
As Texas has noted, EPA allowed
the state to operate its flexible pro-
gram for years, choosing not to apply
a strict interpretation of its rules until
the Obama administration took over.
Despite its assertions of federal usur-
pation of state prerogatives, the state
commission has made changes in re-
sponse to EPA’s objections, providing
a possible basis for restoring the state’s
primacy over that portion of its air
permitting program.
Texas does not, however, appear
inclined to compromise with EPA
on the GHG permit rule. “Texas is
clearly drawing a line in the sand,”
according to Bill Becker, executive
director of the National Association
of Clean Air Agencies, which rep-
resents state and local air pollution
control agencies and their staff. As
the attorney general and commission
chair note in their letter, the legal
issues will be decided in the federal
court and, unlike their counterparts
in states such as Alabama and Mis-
sissippi who agree with Texas on the
issue, they are willing to rely on their
principle and refuse to make any
changes to state law to implement a
GHG permit program.
EPA Administrator Lisa Jackson
and President Obama have consistently
said that they would prefer to not be in
the position of regulating GHG emis-
sions from stationary sources under the
Clean Air Act. e administration, and
most interested par-
ties, would prefer that
Congress pass climate
change legislation that
would reduce GHG
emissions through a
market-based method
that would be more
flexible than the regulatory approach.
eir assumption that the prospect
of these rules would spur Congress to
pass climate change legislation has so
far proved incorrect, and Senator Jay
Rockefeller (D-West Virginia) is the lat-
est to seek to prohibit the agency from
implementing these rules even in the
absence of climate legislation.
In abjuring the option of complying
with EPA’s rule, Texas seems confident
it will prevail in federal court. e better
result would be for Congress to accept
its responsibility to pass comprehensive
climate change legislation.
John Pendergras s is Dir ector of ELI’s
Center for State, Local, and Regional Envi-
ronmental Programs. He can be reached at
pendergr ass@eli.org.
A S
e state does not
appear inclined to
compromise with EPA
on the GHG rule
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