Texas’ Clean Air Act Alamo May Win the Environmental War for us All

In the little-followed but hugely important “joint federalism” system through which our environmental laws are implemented, a seismic change may be afoot that could vastly improve environmental compliance and environmental quality in the future.

Last week, Al Armendariz, the head of the Environmental Protection Agency’s Region VI, indicated that unless significant changes are made by July 1, 2010, the EPA will take over Texas’s Clean Air Act program because of failures to follow the requirements of the Clean Air Act. The EPA last week already took control of an important Title V permit in Corpus Christi, and noted specific and severe deficiencies in 39 other Texas permits, indicating that it would take over them as well. This is significant in and of itself since it shows that the EPA is willing to use its over-filing powers as much as necessary to try and correct permit problems in a state air program. But setting a specific date to take over the entire state Clean Air Program is unprecedented.

A general reading of the CAA would not indicate that this is such a big deal. In fact the CAA specifically notes that if a state fails to follow the minimum federal requirements necessary in its state implementation plan (SIP) for the CAA, the federal government must implement a Federal Implementation Plan, and can also take control of all of the CAA program. This was designed as a failsafe to ensure that the states met the minimum standard that the CAA required. But  it quickly became apparent that the EPA didn’t have the resources to follow through on such threats, and since the 1980s, the EPA has instead relied on cajoling and occasional permit disapprovals to try and bring state programs into line. But Texas' behavior with respect to the CAA has been so outrageous that it may have finally forced the EPA’s hand. Starting in the 1990s, the Texas Commission on Environmental Quality (TCEQ) has allowed “flexible” permits in violation of EPA’s recommendation.   These permits allow plants to make significant changes in pollution sources within a facility if the overall pollution doesn’t exceed a certain level.   The problem was that it masked some efficiency upgrades which would require new pollution control equipment and made general monitoring more difficult. Data last year showed that many of these plants were already exceeding their permits by 100 percent.

Though it has taken the EPA more than 14 years (!) to formally disapprove this part of Texas’s SIP, the EPA has indicated for years, from the Clinton through the Bush administration, that this part of the Texas program violates basic provisions of the CAA. But Texas refused to budge.  Instead, it did everything it could to hold onto and do whatever it wished with its air program.

Not surprisingly, the current governor, Rick Perry, and the TCEQ Chair are crying foul, claiming that the EPA is undertaking an “unjustified” takeover of the Texas program.  But the truth is that a second year law student can look at the CAA and see that the Texas SIP program is in violation of it, and that the CAA requires the EPA to take over the program.   (I know because most of my second year environmental law students got that question right on their exams). Now it looks like Texas is going to pay the piper.

But the real importance of this story is not that Texas may finally have to follow the basic provisions of the CAA, but that the EPA is actually going to take over a program because it is not following the CAA requirements. And not just any program. The Texas Commission on Environmental Quality is the largest state environmental agency in the country, and Texas has a large number of significant permits. Taking over this program will not be easy or cheap. If the EPA is willing to actually do this for the first time on the largest state program that it oversees, that means it will be willing to do it for other programs as well. That makes the CAA’s takeover provisions credible for the first time in the CAA history. That, more than anything else, may finally push the group of about 15-20 recalcitrant states to finally toe the line on the CAA and improve the air for all of us.