With the death of the Senate climate bill, the spotlight moves back to the EPA and its impending regulation of greenhouse gases. The agency's controversial "Tailoring Rule" will phase in regulation of these gases, beginning in Jan. 2011. That is, if it can get the states to cooperate. Texas, for one, is taking an "over my dead body" approach. In an Aug. 2 letter to the EPA, the Texas attorney general, together with the head of the Texas Commission on Environmental Quality, minced no words in expressing the Lone Star State’s position: "On behalf of the State of Texas, we write to inform you that Texas has neither the authority nor the intention of interpreting, ignoring, or amending its laws in order to compel the permitting of greenhouse gas emissions."
The letter decries the EPA's asserted attempt to achieve "centralized control of industrial development" through greenhouse gas regulation and to force states to "pledge their fealty" to this regulatory regime. It points out the EPA's acknowledgement of the absurd results of applying the Clean Air Act to greenhouse gases, and goes on: "In order to avoid the absurd results of EPA's own creation, you have developed a 'tailoring rule' in which you have substituted your own judgment for Congress's as to how deep and wide to spread the permitting burden." The letter also proffers additional constitutional and statutory grounds for the state's refusal to comply.
The EPA had asked states to inform the agency by Aug. 2 whether each state's laws and regulations would allow greenhouse gas permitting, and, if not, whether the state would promulgate the needed revisions. Nonetheless, to ensure that permitting moves forward despite defiant or reluctant states, the EPA has proposed rules, currently under Office of Management and Budget review, allowing the agency to impose a federal implementation plan if it deems a state's rules insufficient.
Texas also filed a lawsuit challenging the Tailoring Rule on Aug. 2, joining ranks with a coalition of five states led by Alabama that filed a similar suit July 30.
Read the Texas letter here.