Belmont Club

The Mess With Texas

Newswatch: Energy says the EPA’s claimed authority to regulate ‘greenhouse’ gases has sparked an unprecedented feud with the State of Texas which has responded in language that is just short of grapeshot and gunpowder. At the center of the debate is the administration’s fallback plan to put in place parts of cap and trade via regulation. That was always going to be a hard sell.

Even lawyers in favor of regulating greenhouse gas emissions agree the Clean Air Act isn’t the best tool for the job. But the push by the EPA to do so starting last year was seen by many as the insurance policy to back up efforts to create a carbon cap and trade system through Congress. That hasn’t worked out so well, so EPA’s effort moves forward.

And Texas ain’t buying. In a letter to the EPA the Texas Attorney General and the Texas Commission on Environmental Quality refused to “pledge their fealty to the Environmental Protection Agency”. Yes folks, you read the language right. And there’s more.

On behalf of the State of Texas, we write to inform you that Texas has neither the authority nor the intention of interpreting, ignoring, or amending its laws in order to compel the permitting of greenhouse gas emissions. … You have declared that EPA’s decision … renders such gases immediately “subject to regulation” … simultaneously, however, you recognize that permitting greenhouse gases under the Act is “absurd” …

In order to avoid the absurd results of EPA’s own creation, you have developed a “tailoring rule” in which you have substituted your own judgement for Congress’s … the State of Texas does not believe that EPA’s “suggested” approach comports with the rule of law. The United States and Texas Constitutions, United States and Texas statutes, and EPA and TCEQ rules all preclude …

We start with the constitutional difficulties … each of these objections to EPA’s demand for a loyalty oath from the State of Texas would suffice to justify our refusal to make one. Indeed, it is an affront …”

These are the kinds of words that seem to come right out of a nearly forgotten past.  Newswatch: Energy says one veteran Texas environmental attorney says he has never seen anything like it. Andy Wilson, who works for a nonprofit on global warming issues says the letter “childishly and churlishly” blames the federal government instead of recognizing that as unprecedented as the EPA’s claims might be, it’s only for the children.

“This is almost entirely political and not very substantive,” he said.

“This is about protecting the climate. This is about clean air for Texas families and children, and protecting our natural resources in a responsible manner. We need less crass political partisanship and more hard work to solve the very real problems we face.”

The accustomed deference to the environmental ‘high ground’ is notably absent. The New York Times takes a more stern tone in its story. Robin Bravender writes: “Texas Defies EPA on Regulation of Greenhouse Gases”. The NYT adds says that if Texas resists, the EPA plans to get enough authority from the White House to “bring them them into compliance”. They’re coming back with a posse.

For states that can’t or won’t immediately comply with the rules, EPA is planning to use its authority to bring them into compliance with federal rules. The agency sent a proposal to the White House regulatory review office last month that seeks to guarantee authority for federal implementation plans, or FIPs, that could replace state programs if the states do not comply with federal requirements by the deadlines.

It has been an interesting week in the political dynamic between the New Dealers and the States. From Missouri the message on health care is, Show Me. And the Eyes of Texas Are Upon You, EPA.  Having ignored the importance of Missouri they can’t ignore Texas. It will be interesting to see whether the administration takes a tougher line on Texas than they did with Wikileaks.

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