Commentary

EPA Flexes Texas

You might have recently noticed a great deal of attention, both local and national, being paid to Texas’ air permitting program – specifically its flexible permitting program.  The importance of this issue, and of EPA’s recent actions regarding Texas’ flex permits, cannot be understated. You know that things have gotten serious when Gov. Perry feels it’s necessary to make a trip to the Ship Channel on a sweltering summer day just before undergoing surgery in order to fire off yet another volley in the fight.

Truth be told, however, is that this fight has been a long time coming. After the Clean Air Act was amended in the early ‘90s, the EPA gave each state the authority to issue air permits to major sources of pollution. States had the authority to figure out how to actually implement such permitting programs as long as they adhered to the federal Clean Air Act. Texas, being home to a huge and diverse mix of heavy industry, created several different permitting tools, each of which was supposed to receive an official blessing by the EPA.

This is where everything started to go wrong. Texas – being Texas – took this permitting authority and as one would expect started to do things its own way, never mind those pesky federal details. The EPA – being the EPA – not surprisingly decided to wait for about fifteen years before finally, officially starting to tell Texas which permitting programs pass muster and which do not.

This is not to say, however, that these permitting woes should be taking anyone by surprise. Air Alliance Houston and several of its partners have been fighting these permitting programs since their inception. Indeed, we have even filed petitions with the EPA in years past trying to budge them towards making some decisions.

And the EPA’s latest actions should in no way be seen as one of President Obama’s agencies edging towards “activism” or needlessly putting a target on a big red state’s back. There are two very important events which are seldom mentioned but are key to understanding just how broken a permitting system Texas has created over time.

Though the EPA had long ago made it plainly known that it was unhappy with Texas and its flexible permits, it was not until a fair notice letter was issued by President Bush’s EPA around three years ago that folks in our state started to raise their eyebrows. This gap between what Texas had done and what EPA would eventually accept created a great deal of uncertainty throughout the state. It was this uncertainty which most likely finally spurred the event which has brought us to where we are today.

The Business Coalition for Clean Air Appeals Group, a legal front representing some of the largest energy interests in our area, filed a lawsuit in 2008 which sought nothing other than a deadline for EPA to make its decisions on Texas permitting. It was this lawsuit, settled by the EPA, which underlies the rush of decisions and actions we are currently witnessing.

Though the EPA definitely helped create the vast permitting problem in Texas, it has chosen to swallow its pride, admit a mistake, and set about fixing this problem. It remains to be seen how genuine a partner in change Texas can be, especially as it seems this issue was immediately eyed by Gov. Perry as a prime “us v. them” example in this election year. But make no mistake; change is coming to Texas' environmental regulation. And whether it comes from Washington or from Austin, we should all be hoping that we fix the cracked foundation upon which our entire environmental house is built.