Texas in showdown over US carbon regulations

The battle over whether the US federal government can regulate greenhouse gas emissions has come to a head in Texas, the only state to refuse to put in place a permit process.

Austin said it would not establish such a scheme for greenhouse gas emissions because the US Environmental Protection Agency had no authority to regulate them as of January 2.

Twelve other states are mounting a legal challenge to the federal government’s authority but they, unlike Texas, are implementing the new measures while the dispute makes its way through the courts.

The EPA has decided that since Texas will not establish a process, it will take control of greenhouse gas permits in the state.

Texas is among the biggest US producers of emissions, anchored by Houston with 497 industrial facilities. The new rules require emission controls on power plants, oil refineries and other big facilities.

Existing plants need to obtain greenhouse gas permits only if modifications to their facilities increase emissions by 75,000 tons a year. New plants emitting more than 100,000 tons each year will be forced to consider “best available control technology’’ for reducing greenhouse gas emissions.

Texas obtained a temporary stay from the courts, preventing the EPA from issuing permits until the DC Circuit Court of Appeals in Washington rules on the dispute.

The EPA filed a brief to the court on Thursday arguing that under the Clean Air Act, the states and federal government are “partners”’ in the task of improving US air quality. But the EPA said it was the “ultimate supervisor’’ should a state fail to develop or enforce an acceptable plan.

Texas, which filed its brief on Friday, contended the EPA failed to follow procedures to seize control of the state’s permit process; it did not give sufficient notice and open the decision to comment.

It argued the state should have had three years – not a matter of months – to come into compliance and draft its own permit process before the federal government could take over.

And before the EPA could assume control of permitting in Texas, it was required to provide a review and comment period on that decision of at least 30 days, Texas argued. The EPA gave Texas about two weeks’ notice that it was taking over permitting and provided no comment period.

“EPA’s disregard for constitutional federalism inflicts irreparable harm on Texas,’’ said Greg Abbott, Texas attorney-general.

The EPA says Texas refused to explain how it would regulate greenhouse gas emissions. Austin notified the EPA on October 4 2010 that it would not accept a December 22 2010 deadline.

Therefore, the EPA said, it was forced to take charge of the process to prevent a “de facto construction moratorium’’ in Texas, where at least 167 large construction projects are scheduled to begin in 2011.

“Texas glosses over EPA’s efforts to work out less drastic solutions with that state, or the fact that every single other state was able to find a workable accommodation,’’ said Daniel Farber, environmental law professor at the University of California, Berkeley.

Kevin Holewinski, head of environmental litigation at Jones Day, the international law firm, said: “Texas set this up for a shoot-out at the OK Corral, so the EPA felt they had to draw first.’’ Nonetheless, he added, “Texas’ position is not a frivolous one; everybody has to follow the law.’’