EPA Imposes 54th Clean Air Act Federal Takeover of a State Program (previous 3 presidents imposed 5 total among them)

EPA Region 6 today announced that the agency would take over Texas’s Regional Haze program under the Clean Air Act.

This is the 54^th such federal takeover, or “federal implementation plan” (“FIP”), imposed by the Obama Administration. For comparison’s sake, consider that the previous three presidential administrations imposed a total of 5 Clean Air Act federal takeovers. Moreover, the EPA promulgated a final agency action last summer that threatens another 36 state programs with Clean Air Act federal takeovers, if States do not radically alter their air quality strategies to control emissions due to malfunctions and other uncontrollable events.

All told, EPA has threatened or imposed 90 federal implementation plans—or 18 times the sum of the previous three administrations. And Obama still has a year left.

EPA’s 54^th FIP is typically absurd. The rule was proposed on December 16, 2014, and would affect 14 power plants and cost more than $2 billion. These costs are senseless compared to the “benefits” which are literally invisible. The purpose of the rule, known as Regional Haze, is to improve the view at National Parks. After years and thousands of man hours of work, Texas officials submitted a Regional Haze compliance plan in March 2009. Texas’s plan met all of EPA’s then-current criteria for approval. Despite being required by the Clean Air Act to process Texas’s plan within two years of its submission, EPA Region 6 stalled for years, during which time it changed the criteria for approval. In this fashion, EPA ‘moved the goalposts’ on Texas. The agency sat on Texas’s submittal while it changed the rules of the game. Ultimately, EPA ruled on Texas’s plan almost three and a half years past its Clean Air Act deadline.

Below, I’ve listed the affected power plants, their utilities, and the counties in which they are located. It is the second grouping—those that have to install “scrubber” retrofits—that will bear the brunt of the costs. Each retrofit would costs about $250 million.

• The following power plants would have to perform sulfur dioxide “scrubber” upgrades: Luminant’s Sandow 4 unit (in Milam County); Luminant’s Martin Lake Units 1-3 (Rusk County); Luminant’s Monticello 3 (Titus County); NRG’s Limestone Units 1-2 (Limestone County)
• The following power plants would have to perform sulfur dioxide “scrubber” retrofits: Luminant’s Big Brown Units 1-2 (Freestone County); Luminant’s Monticello Units 1-2 (Titus County); International Power’s Coleto Creek 1 (Fannin County); Southwest Power Co.’s Tolk Station Units 172B & 171B (Lamb County)

Despite these tremendous costs, the rule would in no way impact visibility; the “benefits” are literally invisible. This is the ultimate example of an all pain, no gain regulation.

Notably, Texas’s Regional Haze FIP was promulgated pursuant to a “sue and settle” agreement negotiated between EPA and WildEarth Guardians, an environmental special interest group.

Lastly, without going into detail, it is the case that EPA Region 6 is trying to break new legal ground with its regulatory takeover of the Texas program. Thus, the agency is trying to grossly expand its prerogatives under the Regional Haze program relative to the States. Simply put, this is a power grab.