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Houston Chronicle: Texas needs to stop suing the EPA and start complying with clean air laws.

August 1st, 2010

This is getting tiresome. The state of Texas, which has been fighting for years to avoid complying with national standards on noxious emissions, is once again putting its energies — and our precious tax dollars — into suing the federal government instead of cleaning up our air.

This past week, for the second time in six weeks, it sued the Environmental Protection Agency. Last time, it was because the EPA announced it was taking over permitting authority from the Texas Commission on Environmental Quality for several plants because they were not compliant with Clean Air Act requirements.

The TCEQ grants permits to state facilities, but they must be in compliance with federal regulations, which the EPA oversees. After repeated warnings, the EPA granted the state agency an extended grace period to comply. When that expired, the TCEQ had still not fulfilled its requirements, so the EPA, which could have simply denied the permits, chose to try to work with the TCEQ to achieve compliance. No dice. The state sued.

This time around, the bone of contention is another long-running feud, the issue of “flexible permits,” by which plants report a facility’s entire pollutant emissions as a whole, under one cap, rather than calculating each individual emissions source inside that plant, as required by the Clean Air Act.

There are fewer than 140 such plants, all built before the Clean Air Act of 1990, but they include some of the state’s largest refineries and power plants. With generous overall caps, and essentially automatic renewal, these permits were finally declared invalid by the EPA.

That should have come as no surprise to the state. For years, under the three most recent administrations, new flexible permits were refused. Even during the industry-friendly Bush years, the EPA sent flexible permit holders a notice reminding them of their obligation to comply with federal requirements. Plus, the EPA has consistently offered to work with states and individual companies to achieve compliance. Again, no dice. The state sued.

There are times when bringing suit is an appropriate response when states’ rights are threatened. But in this instance, the law, and common sense – not to mention Texans’ right to breathe clean air – dictate otherwise. Of course, it’s an election year, so it’s pretty much obligatory for those seeking to change the balance of power to accuse “big government” of trampling on the rights of Texas. Gov. Rick Perry, true to form, calls the EPA’s actions a “power grab” and “federal overreach.” But the evidence suggests only that the state is wasting our tax dollars by stubbornly defending a status quo that is not only illegal but is continuing to pollute the air we breathe. That’s not a good deal.

State Sen. Rodney Ellis of Houston put it well when he told the Chronicle: “I’m all for states’ rights, except when the state is wrong, and neither the facts nor the law are on the state’s side. More lawsuits won’t fix Texas’ broken air permitting system or clean the nation’s dirtiest air. Families that I represent simply want to breathe clean air.”

We wholeheartedly agree with his sentiments. Enough with the lawsuits.