Texas, other states resist EPA strategy targeting coal, mercury and haze
by Mark Lisheron
March 07, 2016
A pair of court actions this week, less than a month after an historic halt to the Clean Power Plan by the Supreme Court, shows the breadth of assault on affordable energy by the Environmental Protection Agency.
The same Supreme Court that brought a temporary stop to the agency’s efforts to direct the energy grids of individual states, chose on Thursday not to block the EPA’s Mercury and Air Toxic Standards rule.
And on Monday, Attorney General Ken Paxton announced the state of Texas was suing the EPA to resist its imposition of rules directed at coal burning power plants to reduce haze in wilderness areas.
Each of the three decisions involves a different set of regulations, the Clean Power Plan by far the most damaging to the ability of states to determine how best to serve the public’s energy needs.
Each of the cases is different in specifics, sharing in common the EPA’s regulatory overreach and President Obama’s commitment to bring to an end to coal as an American energy source.
The state’s latest lawsuit is one of nearly two dozen filed against the EPA over the past 15 years.
“These most recent actions show why the Supreme Court is so important in restoring some of the balance in the way the EPA operates,” Daniel Simmons, vice president for policy with the Institute for Energy Research, told Watchdog. “And it shows you how surprising the court’s stay in the clean Power Plan was.”
It's going to take the election of a president not named Clinton or Sanders to slow the EPA, Simmons says.
The surprise to legal scholars and energy experts came from the Supreme Court’s decision for the first time to stop an agency from following through on regulations before a lower court had the opportunity to consider and rule on them.
This was not the case with the Mercury and Air Toxic Standards rule, even though more than 20 states, including Texas, are part of a lawsuit arguing the EPA never considered the costs to utilities — and ultimately ratepayers — for complying with it.
The Supreme Court agreed with the plaintiffs last June, telling the EPA to determine the cost of the supposed health benefits in its case in lower court.
This is a critical part of the EPA’s larger strategy to direct states by department rule rather than congressional action, Simmons said. The EPA announced its mercury rule in 2011, expecting a legal challenge, but also knowing some power plant operators would decide on what fuel to burn in advance of the ruling, he said.
“What the EPA must do, then, is sow seeds of doubt so that people concerned about the rules don’t invest in those technologies,” Simmons said.
Michael Nasi, general counsel for Balanced Energy Texas, an energy provider and consumer coalition, was not at all surprised at the Supreme Court’s mercury rules ruling. Nearly all of the coal plant shutdowns or modifications needed to meet the EPA rules have already been carried out, Nasi said.
“They have a vision of no coal plants on the power grid,” Nasi said.
‘Stealth weapon in the war on coal’
Paxton’s Regional Haze lawsuit, filed this week in the Fifth Circuit Court of Appeals in New Orleans, follows a familiar pattern. The EPA announces a rule. Texas announces how it plans to comply with it. The EPA rejects the plan. Texas takes the EPA to court.
“Texas already has a plan that meets the standards of the Clean Air Act,” Paxton said in a statement on Monday. “However, once again, the Obama Administration is misinterpreting and misusing federal agencies to force through a radical agenda based more on the beliefs of his environmentalist base than on common sense.
“The steps Washington is demanding we take are extraordinarily expensive, will result in a less-reliable electric grid and ultimately have no significant effect on visibility in Texas.”
In its detailed study of the rule and its history the Institute for Energy Research concluded Regional Haze was “Obama’s stealth weapon in the war on coal.”
“What makes it different is that it isn’t even an environmental issue or a health issue, it’s an aesthetic issue,” Simmons said. “It doesn’t save lives.”
Regional Haze first made its way to court when the National Parks Conservation Association and Environmental Defense Fund in 2008 sued the EPA to get better views in national parks and wilderness areas.
Environmental groups followed with lawsuits against the EPA in at least 11 other states including Texas, Oklahoma, Louisiana, Arkansas and New Mexico. These suits, part of something the National Center for Policy Analysis calls a “sue and settle” (Please see pages 8-10 of their report on Regional Haze) strategy, prompted EPA to press states for compliance.
The cost of that compliance is the shutting down of coal plants in those states at a cost of billions of dollars, an estimated $2 billion in Texas alone, according to the Heartland Institute. The costs, the states argue, will not appreciably clear the skies in our parks.
Nasi, who has fought on a broad legal front for Balanced Energy Texas, said this EPA regulatory push comes at a time when compliance costs are hidden by the low cost of natural gas.
The EPA won’t rest until it shutters every coal plant in the country, according to Nasi.
Without the low-cost constant of coal, it will be consumers who pay the cost to retire old plants and pay for new ones. And if or when natural gas prices go up, consumers will pay for that, too, Nasi said.
Expect more court actions like those this week, last month and at least 15 years past, Simmons said. States have little choice when regulatory policy is being created and enforced by an unfettered EPA, he said.
“The only way to get some of this territory back is the election of a new president not named Hillary Clinton of Bernie Sanders,” Simmons said. “It will have to a president really willing to dig in and go to battle for affordable energy.”