Abbott asked to challenge new EPA rule

By Jessica M. Karmasek | Aug 25, 2011


AUSTIN, Texas (Legal Newsline) - The Texas Railroad Commission asked Attorney General Greg Abbott in a letter Tuesday to challenge the federal Environmental Protection Agency's recently adopted Cross-State Air Pollution Rule.

The EPA adopted the CSAPR on July 6. The rule, effective Oct. 7, requires 27 states, including Texas, to significantly reduce power plant emissions that cross state lines and contribute to ozone and fine particulate pollution in other states, beginning in January 2012.

"The Commission firmly believes that the rulemaking process employed by the EPA was legally flawed, and that the rule, particularly as it focuses on Texas, is unsupported by credible and accurate technical data and analysis and will have serious adverse economic consequences for Texas without demonstrable environmental and health benefits," chairwoman Elizabeth Ames Jones and commissioners David Porter and Barry T. Smitherman wrote.

The commission questions the legal validity of the notice of proposed rulemaking issued by the EPA because the adopted version, it says, is much broader in scope than the rule as initially proposed.

In its letter to Abbott and Jon Niermann, assistant attorney general for the state's Environmental Protection and Administrative Law Division, the commission says the EPA also did not properly analyze the cost of compliance nor adequately assess the impacts of the rule on the state.

"Texas relies on electricity generated by lignite its citizens mine, the regulation of which resides at the Commission," it wrote.

Under the CSAPR, Texas is expected to reduce sulphur dioxide, or SO2, emissions in the state by 47 percent from last year's levels -- second only to Ohio. In addition, of the states included in the CSAPR SO2 reduction requirements, about 25 percent of all reductions are expected to come from Texas.

Texas' total lignite power generation capacity is about 9,500 MW, according to the commission.

"If CSAPR requires any of those units to shut down or run half time, Texas will not have enough power to keep the lights on," it wrote.

The commission says it is concerned about the timing and the expected emission reductions themselves.

"The timing of the new requirements -- Jan. 1, 2012 -- is unreasonable because it does not allow enough time to implement operational responses to ensure reliability," it wrote. "Many coal-fired power plants may be forced to limit or shut down operations, possibly resulting in reductions in the safety margins of power operation of this state.

"The CSAPR will put at risk the economic future of power generation and those dependent on affordable electricity in Texas."

The commission is asking Abbott's office to bring legal action and seek a stay of CSAPR's effectiveness.

From Legal Newsline: Reach Jessica Karmasek by email at

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