Skip Navigation

Texas Sues EPA over Sulfur Dioxide Rule Designations

April 17, 2017

Texas Attorney General Ken Paxton is suing to block the U.S. Environmental Protection Agency’s designation of three areas in Texas as out of compliance with federal clean air standards for sulfur dioxide.

Texas Attorney General Ken Paxton (R) has filed petitions in the U.S. Fifth Circuit Court of Appeals and the U.S. Court of Appeals for the District of Columbia Circuit challenging the U.S. Environmental Protection Agency’s (EPA) decision to designate three areas in Texas as out of compliance with federal clean air standards for sulfur dioxide.

On December 13, 2016, toward the end of Barack Obama’s presidency, EPA issued a final rule determining three areas of Texas failed to meet the federal one-hour standard for sulfur dioxide of 75 parts per billion established under 2010 revisions to the National Ambient Air Quality Standards. Each of the noncompliant areas has coal-fired power plants EPA says are the source of the sulfur-dioxide pollution.

Models Instead of Data

Paxton’s suits say EPA’s sulfur-dioxide attainment designations are flawed. The State of Texas says actual monitoring results in the areas in question show them to be in or near compliance with federal sulfur-dioxide standards.

EPA relied on third-party modeling information instead of using actual measured data to determine the areas failed to meet federal clean air standards. In addition, EPA did not, as federal law requires, consult with the state before issuing the designation, and the agency ignored the state’s plans to continue improving air quality.

In an unusual move, Paxton filed requests to overturn EPA’s decision in two separate federal courts, because EPA recently enacted a rule requiring all challenges to regulations it classifies as “nationwide” be brought in the D.C. Circuit. The D.C. Circuit Court has historically shown more deference to EPA’s rulemaking than other circuit courts.

In a press statement issued by the AG’s office when filing the lawsuits, Paxton called EPA’s rule “self-serving” and said he is challenging EPA’s classification of the regulation as “nationwide.”

“The sulfur dioxide rule establishes standards for only a portion of Texas, making it a locally applicable action and not ‘nationally applicable’ as the EPA claimed,” said Paxton in his statement. “Accordingly, Texas seeks to challenge the Rule in the 5th Circuit.”

‘Expensive and Excessive Restrictions’

In addition to being based on flawed science and a distortion of the law, Paxton says the designation is bad policy, because it will cost jobs and harm local economies without improving the environment.

“This rule requires expensive and excessive restrictions that will damage not only our economy but the livelihood of citizens across the state with little to no effect on the environment,” Paxton said in the press release. “It is clear that the EPA has disregarded state-specific plans and successful environmental action in favor of continuing to expand their regulatory power over states. My office will continue to defend our state from the EPA’s harmful, overreaching regulations.”

Mike Nasi, an attorney specializing in environmental and energy law at the Texas law firm Jackson Walker, says EPA’s designation process is rife with flaws common to the Obama administration’s other EPA actions.

“The legal and technical flaws with EPA’s designation process in this rule are too numerous to list, but this action was another in a long list of Obama EPA actions which share common flaws,” Nasi said. “First, rather than using real-world data to assess where the standard was being or will be attained, EPA instead resorted to a model-only approach to conclude nonattainment, which is not just illegal and bad policy, it is bad science.

“In addition, these designations, though legally distinct from the issuance of Federal Implementation Plans, show the same disregard for the primary role and deference states should be given in environmental regulatory matters,” said Nasi.

‘Federal Strong-Arming’

Nasi says Obama fundamentally changed the federal-state relationship on environmental matters.

“It’s striking how much things changed during the past administration on this front,” Nasi said. “Not counting federal strong-arming in the form of attainment designations, like in this case, and focusing just on the imposition of Clean Air Act Federal Implementation Plans, the Obama EPA issued 57 final FIPs and had threatened an additional 30 over the past eight years. This contrasts to only five FIPs being issued during the prior three administrations, which spanned more than 20 years.”

Michael McGrady (mmcgrady@mccgradypolicyresearch.org) writes from Colorado Springs, Colorado.

Author
Michael McGrady writes from Colorado Springs, Colorado.
mmcgrady@uccs.edu

Related News & Opinion View All News