EPA Region 6 Changes the Rules of the Game to Trump States on Regional Haze

EPA is not a monolith; in addition to the agency’s headquarters in D.C., there are 10 regional offices located in large cities across America. Of course, each of these 10 offices implements the same enabling statutes that empower EPA as a whole. Nonetheless, despite this inherent similarity, different offices have developed different functional expertise, through a combination of internal dynamics, external stimuli, and bureaucratic inertia.

For example, Philadelphia-based Region 3 over the last decade invented a new (highly dubious) Clean Water Act pollution metric, known as “conductivity,” to stifle surface coal mining in Appalachia. And San Francisco’s EPA Region 9 office colludes best with the major environmental special interests, due to the simple fact that many of these green groups have headquarters in northern California. The purpose of this post is to draw your attention to the pioneering statism perpetrated by EPA Region 6, regarding a Clean Air Act regulation known as Regional Haze.

Congress created the Regional Haze program to protect and improve visibility. Because it is an aesthetic regulation—rather than a public health measure—the Congress delegated an unusual degree of power to the States vis a vis the EPA, relative to all other regulatory programs established by the Clean Air Act. Simply put, States are supposed to call the shots on Regional Haze. However, during the Obama administration, EPA Region 6 has innovated a means by which the agency can trump the states’ rightful authority on Regional Haze.

Idiomatically speaking, Region 6’s inventive Regional Haze strategy is to move the goalposts. Here’s how it works.States must submit their Regional Haze plans to EPA for approval. To this end, EPA promulgates regulations and guidelines to aid States in formulating their Regional Haze programs.

If a State submits a plan that is eminently approvable (because it comports with the agency’s regulations and guidelines), but which is nevertheless insufficiently stringent for EPA’s preferences, then Region 6 stalls. That is, Region 6 will refuse to act on the state’s submission rather than approve it. Then, during the ensuing years of delay, the agency will update its regulations and guidelines, and thereby change the rules of the game. Finally, Region 6 will hold the States accountable to the agency’s updated interpretation. Thus, it can get its way on Regional Haze, even though the State is supposed to be in charge by congressional design.

A recent EPA proposal will serve to demonstrate my point.

On April 4, 2008 and March 31, 2009, Texas submitted the two components that comprise its Regional Haze plan. In crafting these plans, Texas relied on two EPA documents:

• 1999 implementing rules (64 FR 35715)
• 2006 implementing guidelines (Office of Air Quality Planning and Standards, Guidance for SIP Submissions to Meet Current Outstandiung Obligations under §110(a)(2)(D)(i) for the 1997 Ozone & PM2.5 NAAQS, at 9-10 (15 August 2006))

Texas finished submitting its Regional Haze program to EPA in March 2009; the plan was, way back then, perfectly approvable, pursuant to the rules then on the books. Region 6, however, failed to lift a finger. Last December 16th, EPA finally got around to addressing Texas’s Regional Haze plan, well more than five years after it was submitted (and three years after the agency’s statutory deadline*). In the ensuing years, the agency had:

• promulgated two updates to 2006 implementing guidelines (in 2009 and 2013: Office of Air Quality Planning & Standards, Guidance on SIPs Required Under §§110(a)(1) and (2) for the 2006 24 Hr PM 2.5 NAAQS at 5 (25 September 2009); Office of Air Quality Planning & Standards, Guidance on SIP Elements under Clean Air Act §§110(a)(1) and 110(a)(2) (13 September 2013));
• and, updated its interpretation of the 1999 implementing rules (a change which was first announced in the December proposal).

Thus the rules of the game were changed, but only after Texas made its submission. EPA then applied the new rules to Texas’s submission, even though state officials could not have known about them [i.e., the rule updates] when they wrote the plan, because they did not yet exist. And based on these new rules, the agency rejected the state’s plan. In its stead, EPA Region 6 proposed to impose a federal plan that would cost ratepayers more than $2 billion. Whereas the costs are tangible, the “benefits” of Region 6’s proposal are literally invisible. They would engender a visibility “improvement” that is imperceptible to the human eye.

Texas is only the latest victim of EPA Region 6’s Regional Haze stalling strategy. Other States subject to Region 6’s jurisdiction, including New Mexico, Oklahoma, and Arkansas, already have been subject to this trick in the context of an EPA disapproval of their Regional Haze compliance strategies. To wit, in a May 2010 letter, the New Mexico Environmental Department addressed Region 6’s stall tactics. The letter cited the state’s “fundamental concerns regarding the workability of the [state submission review process],” due to the agency’s failure to act. It further bemoaned “a never ending cycle of SUP submissions without approvals.”

*The Clean Air Act stipulates that EPA must judge state compliance plans within two years of submission.