The EPA’s War on Texas
The agency punishes the state for challenging its anticarbon rules.
The Environmental Protection Agency’s carbon regulation putsch continues, but apparently abusing the clean-air laws of the 1970s to achieve goals Congress rejected isn’t enough. Late last week, the EPA made an unprecedented move to punish Texas for being the one state with the temerity to challenge its methods.
To wit, the EPA violated every tenet of administrative procedure to strip Texas of its authority to issue the air permits that are necessary for large power and industrial projects. This is the first time in the history of the Clean Air Act that the EPA has abrogated state control, and the decision will create gale-force headwinds for growth in a state that is the U.S. energy capital. Anyone who claims that carbon regulation is no big deal and that the EPA is merely following the law will need to defend this takeover.
Since December 2009, the EPA has issued four major greenhouse gas rule-makings, and 13 states have tried to resist the rush. The Clean Air Act stipulates that pollution control is “the primary responsibility of states and local government,” and while the national office sets overall priorities, states have considerable leeway in their “implementation plans.” When EPA’s instructions change, states typically have three years to revise these plans before sending them to Washington for approval.
This summer, the 13 states requested the full three years for the costly and time-consuming revision process, until the EPA threatened economic retaliation with a de facto construction moratorium. If these states didn’t immediately submit new implementation plans to specification, the agency warned, starting in 2011 projects “will be unable to receive a federally approved permit authorizing construction or modification.” All states but Texas stood down, even as Texas continued to file lawsuits challenging the carbon power grab.
Two weeks ago, EPA air regulation chief Gina McCarthy sent the Texas environmental department a letter asserting that the agency had “no choice” but to seize control of permitting. She noted “statements in the media” by Texas officials and their “legal challenges to EPA’s greenhouse gas rules,” but she cited no legal basis.
And no wonder. The best the EPA could offer up as a legal excuse for voiding Texas’s permitting authority last Thursday was that EPA had erred in originally approving the state’s implementation plan—in 1992, or three Presidents ago.
… The takeover was sufficiently egregious that the D.C. circuit court of appeals issued an emergency stay on Thursday suspending the rules pending judicial review. One particular item in need of legal scrutiny is that the permitting takeover is an “interim final rule” that is not open to the normal—and Clean Air Act-mandated—process of public notice and comment. So much for transparency in government.
The EPA claims its takeover is a matter of great urgency, but Texas is being pre-emptively punished for not obeying rules that don’t exist today because the EPA hasn’t finalized them.
… The EPA concedes that some 167 current projects will be affected, and many more in the future. Our guess is that all of them will be delayed for years and many will simply die. This is precisely the goal of a politically driven bureaucracy that wants to impose by illegal diktat the anticarbon, anti-fossil fuel agenda that the Obama Administration has been unable to pass by democratic consent.
There is no legal basis for what the EPA is doing. All they have is brute force, intimidation, and an unlimited supply of legal resources. Once again, the administration is engaged in actions that perfectly fit the definition of tyranny (“arbitrary or unrestrained exercise of power; despotic abuse of authority”).
And the Journal is right in asserting that it’s all about stopping development — and growth, and wealth creation, and ultimately, whether the President or his apparatchiks admit it or not, human progress.
It all gets back to the question of how a bunch of supposedly bright people can get so swept up in causes — stimulus, the environment, “green” energy — that they end up inarguably harming the economy, employment, and real people. Do they really believe in the causes, or are they just using them a shield to cover up their true intent to harm the economy for the purpose of getting some kind of twisted revenge for all the alleged evils U.S.-based capitalism has perpetrated? For some current and past administration members (e.g., Van Jones), it’s clearly the latter.
As to those who haven’t owned up to it, including our president, even if you wish to still give them the benefit of the doubt, the thought expressed by Glenn Reynolds yesterday applies: “I don’t think so (that he’s trying to wreck the economy), but I’m scratching my head trying to figure out what he’d do differently if he were. . . .”