The EPA assault on Texas

posted at 7:10 pm on June 19, 2011 by J.E. Dyer

The necessary precondition for Texas’s unique economic success – a beacon in a deep recession – is energy.  And the EPA is closing in for the kill.

This would be one thing if Texas were an outlier among the 50 states in terms of dirty air or an otherwise demonstrably imperiled environment.  But the truth is closer to the opposite:  the air in Texas has been getting cleaner; in the urban areas, much cleaner.  And in spite of being by far the largest electric power producer of the 50 states, and heavily reliant on coal, Texas has been steadily reducing its emissions of the EPA’s least-favored compounds from coal combustion (e.g., sulfur dioxide and nitrous oxide). Its emissions of NOx and SO2 are substantially lower than the national average; Texas is ranked the 11th lowest in NOx emissions (.098 lb/mmBtu in 2009, versus a national average of .159 lb/mmBtu), and 24th in SO2 (.309 lb/mmBtu in 2009, versus a national average of .458 lb/mmBtu).

But the EPA isn’t really making the argument that Texas is an environmental pigsty.  It’s not putting any data or findings behind that premise, at any rate.  Instead, it is simply acting high-handedly, assuming an authority that nothing in written law confers on it, to pronounce Texas’s procedures in violation of EPA rules – even when there is no basis for making that claim.  To put it bluntly, the EPA is making a power grab.

Overriding the state air-permit system

There are three principal facets to the power grab.  One began with an EPA decision in January 2010 that the Texas air-permit program was invalid, and that every facility operating under such a permit in the state would have to be re-permitted.  The argument was not that Texas plants were emitting too much.  Rather, as the Wall Street Journal puts it, the Texas “air-permit program … caps emissions of air pollutants from an entire facility, but the EPA wants to scrutinize and restrict emissions from every polluting unit of a plant.”  Texas, along with a number of other states, is concerned that regulating on the EPA’s basis will cost considerably more, without improving air quality.

Neither of the two approaches can claim to be the obvious intent of the Clean Air Act.  In default of a clear intent in written law, the point at issue is whose judgment ought to prevail in this matter.  Texas argues that federalism was a key component of the Clean Air Act, and properly so; that’s how things work in the United States.  The EPA is supposed to set air quality standards, and then the states choose their methods to meet them.  Other states agree.

The EPA has made no philosophical arguments to justify its regulatory ukase – but, of course, it doesn’t have to.  It is currently operating under a chief executive who endorses its approach and doesn’t require it to justify what it wants to do.  Reining it in would require concerted action from Congress, and/or a favorable ruling for the states in a lawsuit.

Keep in mind that throughout the 16 years in which Texas issued its industrial air permits, air quality in Texas improved – a lot.  The Texas system wasn’t failing to produce a compliant outcome.  And it took the EPA 16 years to decide, in spite of that record of success, to invalidate all the existing state-issued permits.  The motivation was clearly political.

The war on coal; New draconian air-quality standards

The permit invalidation was just the beginning, however.  The second facet of the power grab, the Obama EPA’s war on coal, will have at least as damaging an effect on Texas as on other states, and in some ways perhaps more.  The war on coal is part of a larger regulatory assault on emissions and industrial byproducts of all kinds, which will, if implemented as intended, ensure life as we know it cannot continue in the United States.  The impact on Texas is discussed in the testimony submitted to Congress by the Texas Public Policy Foundation (TPPF) in March.

The findings include the likelihood that the new regulations adopted by the Obama EPA will shut down more than 5700 MW of electrical generating capacity in Texas, or about one-twelfth  of the peak demand levied by state users in the last couple of years.  Meanwhile, based on economic trends, Texas expects to need as much as 25% more capacity by 2020.  TPPF cites industry and independent think-tank estimates that the cost of compliance with the new EPA standards will be in the hundreds of billions of dollars, and will thus drive utility costs – and therefore the cost of living – up significantly, while at the same time eliminating thousands of jobs in many industries.

From regulating the naturally-occurring fine dust in the countryside, to treating the byproducts of coal combustion as hazardous waste, and preventing them from being sold for use in cement, the EPA’s proposals would shut down one aspect of human economic life after another.

TPPF gets in a number of good points about both the politics and the data; for example, it observes on p. 6 of the document that the EPA got around the rules governing its implementation of the new regulations by deeming its proposed action (dramatically tightening air quality standards) to be deregulatory.  How did it do that?  By positing that a comprehensive scheme of regulation would involve issuing permits for 6 million sources of emissions, and deciding instead to “tailor” its program to cover only large sources (e.g., the 12,000 emitters that currently require permits to operate).

Just imagine how we could fleece our fellow men if we all had the power to declare it “deregulation” – mercy, relief, a benefit to the regulated – when we don’t do as much as we could have done.  There is a distinctly mafia-like ring to that thought process.

The TPPF testimony also alludes to the EPA’s extremely shaky case that fuel-burning plants need to have their mercury emissions reduced by 91% (mercury emissions from US industry have already been reduced considerably in the past 30 years).  A number of studies suggest that many coal-fired electrical plants will simply find this impossible.

And there doesn’t appear to be a pressing need for it anyway.  Besides the facts that the entire United States power sector emits only 1% of the globe’s anthropogenic mercury output, and that 50% of the mercury in the Atlantic is emitted from Asia, not the US (virtually all the human-emitted mercury in the Pacific comes from Asia), everything in the alarmist case about mercury is either undemonstrated (e.g., that mercury levels in fish have been rising), or wildly overestimated (e.g., the incidence of mercury in child-bearing women in the US, and how that compares to the level of mercury considered dangerous to humans).  See here and here for evidence and counterarguments.

But wait – there’s more.  If you’re wondering how Texas is going to make up that 5700+ MW of power-generating capacity, so is Texas.  Nuclear power would do the trick, of course, but as TPPF observes, new nuclear power plants are an iffy proposition in the wake of the Fukushima disaster.  Wind, solar, and biomass are laughably uneconomic sources, and wind and solar are unreliable as well.

Shutting down natural gas

But what about natural gas?  The EPA is way ahead of us, with the third facet of its power grab.  Ben Voth wrote a piece for American Thinker in January calling out the new EPA assault on the production of natural gas in Texas.  And if you think the EPA’s particular beef is with fracking (hydraulic fracturing) chemicals, think again.  The basis for the EPA’s abrupt move against a Texas natural gas driller in December 2010 was methane and benzene found in local water.

It all fit nicely with the emotional appeal of the “documentary” Gasland, which did for the natural gas industry what Michael Moore did for 9/11.  The problem is that not only was Gasland full of errors and misrepresentations, the EPA case against Range Resources in Texas was full of holes as well.  Based on analysis of their nitrogen content, the methane and benzene in the afflicted water came not from the natural-gas drilling by Range Resources, but through natural seepage from a shallower nearby gas formation – one that is not being drilled.  In other words, there’s nothing humans could have done to prevent the seepage.

(The Energy in Depth write-ups point out also that methane is a naturally occurring gas and the hazards of its presence in drinking water depend, as with so many things, on concentration.  They also cite a study by the Texas health authorities which demonstrated that benzene exposure in the gas-drilling areas of Texas is no higher than it is in the rest of the US, and that the only residents who have elevated levels of benzene are smokers.)

But subsequent testimony from EPA staffers, part of a reconstruction of the December 2010 decision to shut down the Range Resources drilling operation, showed that the EPA did not even consider the possibility that the methane and benzene appeared naturally in the water in question.  This failure fit well with other patterns in the EPA action; the reconstruction (see the second EID link) indicates that it was an instance of activists and the EPA working together to jump the gun.

Senator Jim Inhofe (R-OK) is pursuing this issue.  The Republicans in Texas’s congressional delegation have sent a letter to Cass Sunstein expressing strong disapproval of the EPA’s failure to abide by its own rules in implementing the new air quality and emissions regulations.  As Pajamas notes, the International Brotherhood of Electrical Workers has sent a letter of its own decrying the new regulations – although the Texas Democrats have remained silent.

The fight continues among the states.  At least 15 (including Texas) filed suit against the EPA over its “climate-change” regulations in 2010, even before the full slate of new air quality/emissions regulations were published.  On the other side are 16 states

fighting back on behalf of the EPA, saying without regulations, climate change will adversely affect them.

Those states are: Arizona, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington.

Remarkably, the states “fighting on behalf of the EPA” include the ones with the biggest state deficits, the ones with the highest taxes, the ones with the highest unemployment, and the ones hemorrhaging businesses and revenues and losing seats in Congress after the 2010 census.  One principles-of-governance note:  as long as there is an EPA, any president can put people in it who will abuse the agency’s portfolio.  The courts are incompetent to decide how much the EPA “should” be doing.  That’s a political decision that belongs in Congress – and we need to be telling Congress to do things differently.

J.E. Dyer’s articles have appeared at The Green Room, Commentary’s “contentions,Patheos, The Weekly Standard online, and her own blog, The Optimistic Conservative.

This post was promoted from GreenRoom to
To see the comments on the original post, look here.

Breaking on Hot Air



Trackback URL


So can we now all admit to the willful destructiveness — the malicious intention — of this president.

rrpjr on June 19, 2011 at 11:05 PM

Add to this new OSHA directives to target users of specific hazardous materials used in products for the oil industry and the automobile industry.
Add to this new directives for increased inspections of any company who has had a serious accident or release in the last 10 years (in addition to standard).
Add to this the OSHA directive to write a citation for a violation for each employee who may be affected.
The Obama Administration is targeting manufacturing in this country; making it harder and more expensive to produce practically everything.

mad scientist on June 19, 2011 at 6:14 PM

copied over from the green room post

mad scientist on June 19, 2011 at 11:13 PM

Damn those ATMs taking all our jobs.

KMC1 on June 19, 2011 at 11:16 PM

To go along with Darwin T’s comment, it’s time for all the states to tell the regime that using the executive branch to do things the legislative branch won’t do, isn’t the way things are done, in this country. Perhaps in Russia or some 3rd world country, but in the U.S. the sneaky things the Obama Administration is trying to pull off just doesn’t do it.

If I were the State of South Carolina, I would also open the Boeing plant and start producing airplanes and defy this lawless government and have them take me to court to stop me. I don’t believe even this lawless regime can fix the courts enough to get away with this stuff.

Isn’t it amazing, Glenn Beck is looking a little saner these days.

bflat879 on June 19, 2011 at 11:24 PM

I’m late to this thread…

… but I am sure someone must have noticed that this issue would probably make a fairly effective campaign ad.

Or am I wrong…?

Seven Percent Solution on June 19, 2011 at 11:25 PM

And Perry is hurt by mentioning secession? Ha! We’ll see.

cartooner on June 19, 2011 at 11:46 PM

annoyinglittletwerp on June 19, 2011 at 10:01 PM

Glad to have you, but don’t live up to your handle here.

cartooner on June 20, 2011 at 12:06 AM

Apparently, the Obamacrat EPA doesn’t get it — try to take out Texas and you’ll awake the sleeping giant of those who know anything vaguely about the Alamo to come to Texas’s rescue with Perry runs against Obama in 2012. If this Obamacrat EPA federalist powergrab persists, the rest of the GOP field might as well start running for VP…

drfredc on June 20, 2011 at 12:08 AM

McConnell has said he is fine with raising the debt limit.

Boehner is out playing golf with Obama.

With friends like these….

angryed on June 20, 2011 at 12:11 AM

The emissions standards have a drastic effect on more than “energy.” They effect virtually all chemical production & mining/refining of ores. Boilers & fired heaters are used in oh so many processes. It affects agriculture since the EPA is trying to tax ranchers on a cow by cow basis at the clip of $175/head. When will they start taxing swamps for emitting methane from decaying vegetation?

Kermit on June 20, 2011 at 12:25 AM

Maybe if we had some of these EPA folk sit down to a serious chat with some of our Rangers, this misunderstanding might be cleared up. Then again, there’s starting to be less and less good to be said about this so-called Union, too.

creekspecter on June 20, 2011 at 12:29 AM

Glad to have you, but don’t live up to your handle here.

cartooner on June 20, 2011 at 12:06 AM

Heh. I’m only annoying in Lubbock when it comes to finding ‘eats’ that I enjoyed Chi.
I asked where we could find some good Chicago pizza.
I was told: In Chicago.
They also have NO clue about egg bagels.
I NEED my egg bagels.

annoyinglittletwerp on June 20, 2011 at 12:33 AM

With friends like these….
angryed on June 20, 2011 at 12:11 AM

Yes, truly pathetic.

rrpjr on June 20, 2011 at 12:58 AM

Teach Rick Perry a lesson he will not forget

I support the Union even if we have to bankrupt the whole country to bring them to the right standards. We need to suspend state government in Texas and send in regulators. Those guys will determine what needs to be done for real uniformity.

And tell Perry to remember what happened to the last guy who thought about the flaw in a Union which required the force of arms to preserve it.

IlikedAUH2O on June 19, 2011 at 7:34 PM

WTF are you rambling on about?

john1schn on June 20, 2011 at 1:10 AM

The assault against America being led by the EPA all hangs on their ridiculous extra-legal assertion that CO2 = pollution, and the EPA did that by bureaucratic fiat. The next head of the EPA can undeclare that, and all this nonsense goes away.

slickwillie2001 on June 20, 2011 at 1:20 AM

WTF are you rambling on about?

john1schn on June 20, 2011 at 1:10 AM

It just likes to spout off nonsense.
Ignore it.

annoyinglittletwerp on June 20, 2011 at 1:43 AM

As bad as things are here folks, they are not quite this bad. (This one has subtitles, I promise).

StubbleSpark on June 20, 2011 at 2:41 AM

Do I understand the Progressive Left yet?

PappyD61 on June 19, 2011 at 8:16 PM


Siddhartha Vicious on June 20, 2011 at 5:48 AM

Policy flows from ideology. Elections matter. What…you thought EPA would not become a subsidiary of Obama, Inc. and help him go after his “enemies”?

SKYFOX on June 20, 2011 at 7:50 AM

Texas to the EPA: “Don’t mess with Texas.”

Any other words might result in moderation…

john1schn on June 19, 2011 at 8:46 PM

Alternate message to the EPA. We like to say here in Texas, “Bring it!”

mizflame98 on June 20, 2011 at 8:17 AM

Maybe we wont be producing our own Electricity or drilling because the ChiComs will be selling US electricity from their FTZs (Foreign Trade Zones) like they are going to do in Idaho?

Just imagine, crippled American Energy production dependent on Chinese Communist Power generation in over 250 FTZs in the U.S.A!!!

Google it.

PappyD61 on June 20, 2011 at 8:21 AM

Heh. I’m only annoying in Lubbock when it comes to finding ‘eats’ that I enjoyed Chi.
I asked where we could find some good Chicago pizza.
I was told: In Chicago.
They also have NO clue about egg bagels.
I NEED my egg bagels.

annoyinglittletwerp on June 20, 2011 at 12:33 AM

It takes time to adapt to that. I still can’t find a decent Philly cheese steak or Philly soft pretzels. I have to wait until I go back home to visit before I can gorge on those things. In the meantime, savor the Tex-Mex, German, or Czech eats. You’ll sure to find something that will make you not pine for the Pizza and egg bagels so much. Might I recommend a meat and cheese Kolache? They’re awesome.

mizflame98 on June 20, 2011 at 8:23 AM

Just pushing Perry into the presidential fight…a big mistake for Obama.

right2bright on June 20, 2011 at 8:58 AM

Each state has an epa, why do we need to pay for a federal epa? We could save ourselves a ton of money by getting rid of a bad idea.

Kissmygrits on June 20, 2011 at 10:11 AM

john1schn on June 20, 2011 at 1:10 AM

I was being sarcastic about putting Texas back in line. Rumor had it that Governor Perry wanted to leave the Union. This is the other extreme. It is not too pretty either.

annoyinglittletwerp on June 20, 2011 at 1:43 AM

You nailed it. So does your name.

IlikedAUH2O on June 20, 2011 at 10:18 AM

Texas (and the rest of us) needs a fence around Washington DC more than a fence on the border with Mexico.

Wine_N_Dine on June 20, 2011 at 10:18 AM

They also have NO clue about egg bagels.
I NEED my egg bagels.

annoyinglittletwerp on June 20, 2011 at 12:33 AM

Put that *pout* energy into entrepeneurial spirit and OPEN an Egg Bagel SHOP (with such a can do attitude you might even be mistaken for a real Texan at some point as opposed to a DAYUMNED YANKEE)

Katfish on June 20, 2011 at 10:23 PM