EPA May Federalize Texas Air Program

[thundley4]

The U.S. Environmental Protection Agency may take over the entire job of regulating air quality in Texas if the state continues to violate the Clean Air Act, a top EPA official told The Associated Press on Wednesday — intensifying a dispute over regulating pollution from the country's largest refineries and petrochemical plants.

The comment by regional EPA chief Al Armendariz comes a day after he said the federal government would issue the operating permit for one refinery in Corpus Christi and planned to take over 39 other permits.

Now, Armendariz said, the agency is studying how to federalize what has always been a state job and hiring eight permitting engineers and attorneys — partly to deal with Texas.

"Do we also think the deficiencies are serious enough to go that route? The answer is yes," Armendariz said. "If we have to, we will. The takeover of a state program and the federalizing of a state program is a lengthy process and doesn't happen overnight."

Armendariz had said the EPA wanted assurances by July 1 that Texas will comply with federal law.

NPR

Translation: Your economy is growing too fast, we need to shut it down. You're making the liberal hellholes look bad.

[The Village Idiot]

<I>"If we have to, we will. The takeover of a state program and the federalizing of a state program is a lengthy process and doesn't happen overnight."

<P>I seriously missed that part of the Constitution.

[Alpha Mare]

The EPA's plan is sure to set off fireworks in Texas. State regulators have consistently said they disagree with the EPA's conclusion that Texas allows the petrochemical industry to spew out an unmeasured amount of toxins as it refines one-third of the nation's gasoline and produces thousands of other chemical products and plastics.

"It would take years and kill millions of jobs and the economy would suffer eventually, and we're seeing no environmental benefit," Bryan Shaw, chairman of the Texas Commission on Environmental Quality, told the AP.

Now, the dispute is rapidly becoming a battle over federal and state rights.

[thundley4]

Once the fed EPA takes control of the permit process for new construction, it's a short step to regulating the operational plants more closely. Shut down enough refineries in Texas and they'll drive the price of gas through the roof.

[Alpha Mare]

Texas, via its Attorney General (he's already on the payroll, so no additional legal fees here), filed a 38-page Petition for Reconsideration in the proper court, see above, with a fascinating and detailed list of EPA's wrongdoing in its Endangerment Finding.

The legal basis for the Petition for Reconsideration is the Clean Air Act, Section 307 and following (found at 42 U.S.C. Chapter 85, Section 7607).

Texas makes two main allegations: 1) the Endangerment Finding was arrived at by a fundamentally flawed methodology, and 2) that methodology was legally unsupported.

The Petition for Reconsideration also states,

"although the [EPA] Administrator is legally required to undertake a scientific
assessment before reaching a decision that is supposed to be based on scientific
conclusions, the Administrator outsourced the actual scientific study, as well as her
required review of the scientific literature necessary to make that assessment. In doing
so, EPA relied primarily on the conclusions of outside organizations, particularly the
United Nations International Panel on Climate Change (“IPCC”)."

The Petition for Reconsideration then lays out a long list of the IPCC's failings including not using peer-reviewed studies, how the IPCC's top climate scientists used the peer-review process to exclude contrary findings, colluded to hide research flaws, and collaborated to obstruct Freedom of Information requests.

The Endangerment Finding was Flawed

Next, the Petition for Reconsideration discusses the Endangerment Finding. Texas leads off with a quote from the Supreme Court case of Massachusetts v EPA, and Texas gets it right. Not all legal commentators got this right, however. The Supreme Court did not declare CO2 to be a greenhouse gas, and did not declare CO2 to be a danger to human health. As Texas correctly states,

"the United States Supreme Court decision in Massachusetts v. EPA required the Administrator to:

“determine whether or not emissions of greenhouse gases from new motor vehicles cause
or contribute to air pollution which may reasonably be anticipated to endanger public
health or welfare, or whether the science is too uncertain to make a reasoned decision.” "

Texas goes on to state the legal grounds the Administrator is required to follow, and concludes with, "in reaching her Endangerment Finding, the Administrator is obligated to make her own, independent, ‘reasoned decision’ that is based exclusively on the best available science." This is the crux of Texas' argument: she did not make her own, independent decision, it was a copy of the IPCC and other reports; and it was certainly not based on the best available science. Non-peer-reviewed, agenda-driven magazine articles are not the best available science.

The Petition for Reconsideration then provides a fact-filled litany of the Climategate emails, showing scientists behaving badly. In Section VII (A), the Petition for Reconsideration shows how the IPCC authors manipulated the climate temperature data, citing the by-now infamous email of using a "trick" to "hide the decline." Also, especially egregious data manipulation is discussed with Russian and New Zealand temperature data. Such manipulation showed undue warming. Also, the IPCC admitted they have lost critical climate data.
Then the real fun begins, with several major discredited claims, using non-peer-reviewed sources.

Conclusion and Request

"Granting this petition would be consistent with actions taken by governments
worldwide to assess problems afflicting the IPCC and it would further allow the agency
to conduct its own scientific assessment, independently consider the available scientific
information, and then, in the Administrator’s own judgment, make a determination that is
supported by the law and facts."

Texas is requesting the EPA do what it is legally required to do: conduct its own scientific assessment (not rely on the perverted IPCC results), and use the best available scientific information (not like the IPCC did with outrageous reports), then make its own determination that is consistent with and supported by the law and the facts.

Summary

An agenda-driven EPA, and the presidential administration that directs it, should take a lesson from this. This is what happens, and some very concerned states (Texas is not alone in filing such a petition, by some reports, 16 other Petitions were filed) do not take these things lightly. Court resources will be tied up for weeks, if not months, and all because the EPA did not pay attention to the climate skeptics who, all along, insisted that the IPCC was full of wrong-doing and bad science.

http://sowellslawblog.blogspot.com/2010/02/texas-v-us-epa-over-co2-endangerment.html

[DumbAss Tanker]

For the uninitiated, the way Clean Air Act and Clean Water Act work, in a nutshell, is that EPA has authority over the state until it comes up with a State Implementation Plan (SIP) which is then published with notice and comment, EPA publishes its acceptance with notice and comment, and then EPA steps back and the State regulates its own program.  This is the point in the process where the EPA thinks the State isn't enforcing its own end of the deal or isn't adding in new stuff that has changed since the SIP was approved (Which is where the GHGs come in).  All I can say is I hope Texas kicks EPA's ass, and thank God Texas isn't in the Ninth Circuit.

[docstew]

For the uninitiated, the way Clean Air Act and Clean Water Act work, in a nutshell, is that EPA has authority over the state until it comes up with a State Implementation Plan (SIP) which is then published with notice and comment, EPA publishes its acceptance with notice and comment, and then EPA steps back and the State regulates its own program.  This is the point in the process where the EPA thinks the State isn't enforcing its own end of the deal or isn't adding in new stuff that has changed since the SIP was approved (Which is where the GHGs come in).  All I can say is I hope Texas kicks EPA's ass, and thank God Texas isn't in the Ninth Circuit.

How is it that the EPA has authority to approve something that is, by definition, a state function?  That sure as hell doesn't look like interstate commerce.

[DumbAss Tanker]

Well, that gets complicated and even logically-ridiculous when you really look at the case law behind some of it, but the water part is covered by the Federal government's jurisdiction over the navigable waters of the US, and the air part goes back to air not staying in one place (Like within one State) all that well.

[Thor]

There are places in Texas where toxic levels of Benzene are being emitted into the air and people ARE ill from it. There are also places in Texas, like where I live, that don't have any type of vehicle emissions testing or ENFORCEMENT. There are many oil burning vehicles around my city. In the city's defense, many of them are from Oklahoma, which has NO vehicle inspection requirement. One simple step as to the vehicles, it sure would be nice IF the police would do their job and cite these obviously polluting vehicles. They used to do that, but not any more. The other step is to fail the Texas  vehicles if they are emitting smoke on annual inspection. (I've been somewhat sensitive to exhaust emissions and diesel emissions since Desert Storm. They make me physically ill, give me headaches and nausea. It MAY have something to do with being off of the coast of Kuwait for so long with the burning oil wells)

[The Village Idiot]

There are many oil burning vehicles around my city. In the city's defense, many of them are from Oklahoma, which has NO vehicle inspection requirement. One simple step as to the vehicles, it sure would be nice IF the police would do their job and cite these obviously polluting vehicles. They used to do that, but not any more.

Like the border... that's a fed issue. Let the feds sent people to enforce it, heh.