****FOR PRINT*** Abbott sues EPA over air pollution rule

Jessica M. Karmasek Sep. 23, 2011, 7:26am


AUSTIN (Legal Newsline) - Texas Attorney General Greg Abbott on Sept. 22 filed legal action against the federal Environmental Protection Agency over its "flawed" Cross State Air Pollution Rule.

In addition to challenging the rule, Abbott is asking the U.S. Court of Appeals for the District of Columbia Circuit to impose a stay on the regulations that "jeopardize the reliability of Texas' electrical grid, threaten hard-working Texans' jobs, and will burden Texas families with higher electricity prices."

In his 30-page motion for stay, the attorney general explained that when the EPA issued its July 7 Cross State Air Pollution Rule, or CSAPR, the administrator failed to comply with federal laws that require federal agencies to inform the public of rule proposals in advance so that affected parties can participate in the rule-making process.

The rule, effective Oct. 7, requires 27 states, including Texas, to significantly reduce power plant emissions that cross state lines and contribute to ozone and fine particulate pollution in other states, beginning in January 2012.

Because the EPA opted not to include Texas in key aspects of the proposed CSAPR regulations that it published in August 2010 -- and added Texas without notice to the final regulations earlier this year -- the rule violated federal law and should be stayed by the appeals court, Abbott argues.

"Because of the lawless approach advanced by unelected bureaucrats at the EPA, the State's ability to prepare for dramatically reduced power generation was severely undermined -- which is why Texas' electrical grid operator projects that the administration's latest regulations could lead to rolling blackouts next summer," he said in a statement.

"Inexplicably, the administration is determined to advance its aggressive agenda despite the risk of power outages in heat of the Texas summer and unemployment for hard-working coal miners and power plant employees whose jobs are imperiled by the EPA."

Abbott says because the EPA failed to provide Texas the advance notice required by federal law, the state and its electrical generators did not have an opportunity to prepare for -- much less object -- before these regulations were finalized.

Power plant operators in East Texas have said that job losses could have been prevented if the EPA had simply complied with the law, the attorney general argues.

"But worse, Texas' last-minute inclusion in the EPA's job-killing cross-state regulations was based upon a single air quality monitor in Granite City, Ill. -- which was fundamentally flawed not only because a nearby steel mill necessarily impacts that location's air quality, but because that very location actually satisfies federal air quality standards," Abbott said.

"With too many Texans' jobs and access to reliable electricity on the line, the Attorney General's Office is committed to pursuing all available legal options to overturn these regulations and holding the EPA accountable for violating federal law."

Thursday's legal action follows a Sept. 8 action by the state requesting that EPA Administrator Lisa Jackson administratively stay the legally flawed rules, but she did not act on the State's request.

The following state agencies are named plaintiffs in the State's legal action against the EPA: The Texas Commission on Environmental Quality, the Public Utility Commission, the General Land Office and the Railroad Commission.

The Railroad Commission had asked Abbott to challenge the new rule last month.

"The commission firmly believes that the rulemaking process employed by the EPA was legally flawed, and that the rule, particularly as it focuses on Texas, is unsupported by credible and accurate technical data and analysis and will have serious adverse economic consequences for Texas without demonstrable environmental and health benefits," chairwoman Elizabeth Ames Jones and commissioners David Porter and Barry T. Smitherman wrote in their letter.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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