Texas joins challengers to EPA's 'tailoring' rule

The state of Texas stepped up its legal campaign against U.S. EPA's climate program this week, asking a federal appeals court to review the agency's plans for the regulation of greenhouse gases from stationary sources under the Clean Air Act.

The "tailoring" rule, which is intended to limit greenhouse gas permitting to the largest emitters, is "arbitrary and capricious and is contrary to the Clean Air Act," Texas Gov. Rick Perry (R) claimed in a lawsuit filed with the U.S. Circuit Court of Appeals for the District of Columbia on Monday.

By raising the thresholds for regulation from 100 or 250 tons to 75,000 or 100,000 tons of greenhouse gases per year, the agency intends to spare nonindustrial sources such as schools, hospitals and apartment buildings. EPA also decided that the regulations for stationary sources will take effect in January, when automakers must comply with the first-ever greenhouse gas standards for cars and light trucks.

Critics of federal climate regulations say EPA has no authority to change the emissions thresholds set by the Clean Air Act. But even if a court would agree, experts say, it may be difficult to find a plaintiff who is both harmed by the rule and willing to sue over it.

In its lawsuit, Texas says it has standing for a lawsuit because the tailoring rule would require the state to reinterpret or revise its state implementation plan (SIP) by Jan. 2, 2011. The state refuses to change its air pollution laws to comply with climate regulations it considers illegal, wrote Texas Attorney General Greg Abbott (R) and Texas Commission on Environmental Quality Chairman Bryan Shaw in a Monday letter to EPA officials.


"In order to deter challenges to your plan for centralized control of industrial development through the issuance of permits for greenhouse gases, you have called upon each state to declare its allegiance to the Environmental Protection Agency's recently enacted greenhouse gas regulations -- regulations that are plainly contrary to United States law," they wrote to EPA Administrator Lisa Jackson and Al Armendariz, administrator of the agency's Dallas-based Region 6 office (Greenwire, Aug. 4).

The White House Office of Management and Budget is currently reviewing an EPA rule that would allow the agency to install federal implementation plans if states do not comply with regulations.

Texas' lawsuit is one of 17 court challenges to the tailoring rule, which was finalized in early June. The challengers include businesses, trade groups, states and small-government advocacy groups that oppose the climate regulations, as well as environmental groups, which are questioning the agency's decision on when pollutants become "subject to regulation" under the Clean Air Act.

Click here to read the petition.

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