AUSTIN – The Texas Public Policy Foundation praised last Friday’s ruling by the Washington, D.C. Circuit Court of Appeals, which enjoined the U.S. Environmental Protection Agency (EPA) from implementing its Cross-State Air Pollution Rule (CSAPR) until the D.C. Circuit has completed its review of the legal challenges against the rule. The highly controversial rule had been slated to take effect yesterday.

“The Cross-State Air Pollution Rule is riddled with procedural and substantial errors and is without environmental justification,” said TPPF’s Kathleen Hartnett White. “The EPA is fabricating benefits to human health to force an energy policy that suppresses coal regardless of economic consequences. We are relieved that the D.C. Circuit has intervened at the last minute to make the save.”

The rule, issued by EPA in July 2011, would place severe restrictions on sulfur dioxide and nitrogen oxide emissions from power plants in 27 states – emissions which have already been reduced by more than 50 percent over the last 20 years. The new rule mandates further reductions of 20 percent to 46 percent within the next two years. Texas has sued to block the implementation of the rule in one of more than three dozen lawsuits.

“CSAPR would harm electric reliability in many parts of the country, with no state more at risk than Texas,” White said. “Because of the unprecedented short lead time for power generators to meet these aggressive limits, they would have been left with no realistic alternative but to shut down older power plants. Texas’ grid operator ERCOT concluded that if Texas had another hot summer in 2012 such as we had in 2011, rolling blackouts and power outages would be likely.”

“Texas utilities have already announced more than 1,000 job losses and the closure of multiple coal mines and power plants if CSAPR had come into effect on January 1, 2012,” White continued. “EPA’s purpose in including Texas is to reduce particulate-matter pollution in one county in Illinois by imposing stringent limits on emissions from Texas power plants. However, the area in Illinois and the state of Texas both officially satisfy the federal air-quality standard in question.”

The Texas Public Policy Foundation has been especially active in raising public awareness on CSAPR and other regulations among EPA’s unprecedented barrage of new rules. In May, the Foundation discussed CSAPR in its legislative briefing on “The Approaching EPA Avalanche.” Since the rule was announced, Kathleen Hartnett White has published commentaries in The Dallas Morning News, National Review Online, The Daily Caller, and many Texas newspapers that highlighted the costs of the rule, as well as the scientific errors and exaggerated claims of environmental benefits. Mrs. White has presented to organizations across the country about the dangers of the rule.

“In its proposal, the EPA requested comments on Texas but did not include Texas in the rule nor provide any information about specific Texas requirements,” White said. “By pulling Texas in at the last hour, the EPA flouted the constitutional due process guaranteed in the Administrative Procedures Act for all rulemaking.”

Among many errors, EPA’s projected emissions impacts from Texas rely on 2005 data, which assume the continued existence of 19,000 tons of nitrogen oxide emissions that Texas has eliminated through subsequent state regulation.

The D.C. Circuit Court of Appeal’s issuance of an administrative stay is a rare occurrence in cases involving EPA’s regulatory authority under the Clean Air Act – and a potentially significant one. A stay requires the plaintiffs to demonstrate both imminent and irreversible harm, as well as a likelihood of prevailing on the merits of their complaint. Besides issuing the stay, the D.C. Circuit ordered the parties to prepare a briefing schedule for the Circuit to begin its review in April.

Kathleen Hartnett White is director of the Armstrong Center for Energy and Environment at the Texas Public Policy Foundation. She was commissioner and chairman of the Texas Commission on Environmental Quality from 2001 to 2007.

The Texas Public Policy Foundation is a non-profit, free-market research institute based in Austin.

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