Environmental Defense Fund and Environmental Integrity Project filed the motion in the U.S. Court of Appeals for the 5th Circuit in New Orleans.
The environmental groups are seeking to intervene on the side of the EPA. If they are allowed to intervene, they will argue that the agency properly disapproved the Texas Flexible Air Permitting program.
"Governor [Rick] Perry wants people to think that Washington is picking on him," said EDF energy program director Jim Marston. "The truth is he wants Texas to get a special pollution pass that no other state gets."
Air pollution in downtown Dallas, Texas (Photo by Eric Wallace)
"All other 49 states follow the Clean Air Act, and it's time that politicians and polluters in Texas follow it, too," Marston said. "Our intent is to make sure this lawsuit considers the facts and science surrounding this issue and that re-election campaigns aren't waged in the courtroom."
The issue stems from an action taken by the EPA in June to formally disapprove the state's Flexible Air Permitting rules as part of the state's Clean Air Act implementation plan.
On June 30, EPA disapproved the state's implementation plan submittal, stating that the Texas Commission on Environmental Quality's Flexible Air Permitting program failed to meet minimum federal Clean Air Act standards.
EPA's action came after the agency put all affected industries on notice in 2007, under the Bush administration, and took public comments last year.
EPA took the action after nearly a decade's worth of communication between the federal agency and the Texas Commission on Environmental Quality failed to resolve the issues.
"The EPA's June 30 action to disapprove this program came as no surprise to anyone," said EIP senior attorney and Texas program director Ilan Levin. "After being forced by an industry lawsuit to finally make a decision on whether the Texas Flexible Air Permitting rules measure up to minimum Clean Air Act standards, the EPA came to the only conclusion it could. Texans deserve the same air quality protections that residents of other states enjoy."
Both environmental groups have been involved with air quality issues and TCEQ's permitting program for the last decade, urging the state and federal agencies to address failings in the Texas program, including the state's failure to comply with basic federal Clean Air Act requirements.
The groups have documented several failures of the Texas air pollution program, including state policies that allow companies to skirt federal requirements.
"We are defending our flexible air permitting program because it works," said TCEQ Chairman Bryan Shaw. "EPA is not able to demonstrate how our program is less protective of the environment than the bureaucratic federal approach. EPA's philosophy of more bureaucracy by federalizing state permits will not lead to cleaner air, but will drive up energy costs and kill job creation at a time when people can least afford it."
But the environmental groups contend that Flexible Air Permits, which assign pollution caps to entire facilities instead of regulating individual emission sources like boilers and flares, represent just one of the state's shortcomings when it comes to air pollution.
They contend that Flexible Air Permits issued by the Texas Commission on Environmental Quality make it more difficult to enforce air pollution laws that protect citizens from harmful pollution and air toxics.
"The State of Texas is making a good faith effort to meet the federal government's objections to our flexible permitting program, even though our program does meet requirements of the federal Clean Air Act," said TCEQ Commissioner Buddy Garcia. "It is entirely possible that if the state abandons the innovative flexible air permits, the progress we have made over the last 15 years will all be for nothing."
"Our flexible permits are an integral part of the state's success in cleaning our air," said TCEQ Commissioner Carlos Rubinstein. "Overall state-wide ozone levels have declined 22 percent since 2000. Every area of the state, with the exception of Dallas-Fort Worth, is meeting the current federal ozone standard. And Dallas-Fort Worth is only exceeding the standard by one part per billion."
Meanwhile, Texas is changing the rules for air emissions from pollution control projects and also for oil and gas production facilities.
On Friday, the Texas Commission on Environmental Quality published for public comment a proposed new air quality standard permit for pollution control projects.
Pollution control projects are those projects undertaken voluntarily or as required by any federal or state air statute or rule, which reduce or maintain currently authorized emission rates for facilities authorized by a permit, standard permit, or permit by rule.
Unless a facility is new or modified, owners or operators operating under the existing standard permit would not require authorization under the proposed standard permit.
A public meeting on the proposed standard permit will be held on September 20, 2010 at 10:00 am, at the TCEQ, Building E, Room 201S, 12100 Park 35 Circle, in Austin. Call the TCEQ's Office of Permitting and Registration, Air Permits Division, at 512-239-1250 for copies of the proposed standard permit for pollution control projects.
In addition, earlier this month the TCEQ proposed to replace the current standard emissions permit for the construction and/or modification of oil and gas production facilities with a new standard permit.
The new standard permit requires a single site-wide authorization and also authorization of planned maintenance, start-up, and shut down emissions. It spells out requirements for emissions control and best management practices to ensure that emissions from oil and gas sites do not threaten human health.
The proposed standard permit would also feature variable emission limits based on the height above ground of emission release points and distance from those release points to off-property receptors such as residences, institutions, and public areas.
Beginning January 5, 2012, facilities authorized under the current standard permit must meet the requirements of the new standard permit relating to maintenance, startup, and shutdown emissions. As of January 1, 2015, upon renewal, the owner or operator of an oil and gas production facility would be required to fully comply with this new standard permit.
Copyright Environment News Service (ENS) 2010. All rights reserved.