It may seem like irrelevant due process driving the Texas lawsuit currently before the US Supreme Court but if EPA followed the standard for implementing new rules, like the “cross- state air” effort, then implementation of a transport rule may be underway by now.
“Notice” would have been given to all states and parties prior to the comment period, which would have revealed discrepancies with EPA assumptions and data used in determining their new rules. Then “guidance” from the feds to states for compliance would have been issued so states would have a “how to” guide on why all the changes are required and how to do it. All necessary for state’s to be successful in meeting any requirements.
Texas Attorney General Greg Abbott is arguing on Texas’ behalf before the US Supreme Court this week against a proposed federal rule intended to limit the downwind effects of air pollution across state lines.
EPA did not follow rule implementation procedures required by law for the “rulemaking” process and consequently Texas was unfairly included with no opportunity to prove why EPA was using redundant data, or inaccurate readings in making its conclusions. If any state regulatory authority avoided such details in “rulemaking” they would be sued and lose.
States like Texas were included at the last minute in spite of data showing assumptions of downwind contributions being flawed, wrong, or under the threshold. Even ERCOT did not include Texas power reserve limitations based on this new rule because there were no threshold breaches to indicate Texas inclusion.
Due process is a big part of predictable rule making. If business will indeed be able to adapt to circumstances sustainably, EPA should follow the law so pollution limits can be accomplished and benefits truly realized. If they want to make it impossible for coal or other fossil fuels to continue then say so, but consider how the new rules can be implemented for successful outcomes.
The way EPA went about the “cross-state air rule” was vulnerable to challenge because they did not implement it in a way that is fair to those affected, nor genuine in its purpose. Until Texas challenged, other states acquiesced (probably due to cost) in spite of data redundancies and false projections. Texas, whose TCEQ is the second largest environmental agency in the world, had the resources to disprove federal calculation’s of pollution and particulate matter conclusions.
Texas has more than its fair share of challenges from “cross-state air” blowing our way from Latin American burns and African dust yearly. But expanded federal regulations on air quality problems that originate in another state are a real concern based on EPA “command and control” method’s, manipulation of the facts, and their rationale for doing so.
Texas should make certain that all sources of pollution within the state jurisdiction are regulated to the best of its ability. Source and non-source pollution are increasing as a result of population increases and lifestyles. Changes required should be as inclusive as required by law, for maximum effectiveness.
But EPA was not interested in assisting states to anticipate or collaborate on justification for the various aspects of the rule. It was a “gotcha” approach intended to force rules that Congress would never approve.
Manipulating data and illegally implementing rules by “any means necessary” is not productive or sustainable. Everyone wants clean air, but how we regulate pollutant activity must include due process and adherence to the law, even by the EPA, before state implementation of a “cross-state air rule” can be effectively realized.
I hope the US Supreme Court agrees or the consequences can be exponentially costly with no predictability or real benefits for Texas to come.