Two Environmental Groups Seek to Participate in Texas-EPA Air Pollution Lawsuit

On Friday, August 27, Environmental Defense Fund (EDF) and Environmental Integrity Project (EIP) filed a motion to intervene in the lawsuit brought by Attorney General Greg Abbott and the State of Texas against the federal Environmental Protection Agency (EPA) regarding the EPA’s June 2010 disapproval of a portion of Texas’ air permitting program.

The motion was filed in the U.S. Court of Appeals for the 5th Circuit in New Orleans. EDF and EIP are asking to intervene on the side of EPA and, if allowed, will argue that the agency properly disapproved the Texas Flexible Air Permitting program.

“Governor Perry wants people to think that Washington is picking on him,” said EDF energy program director Jim Marston. “The truth is he wants Texas to get a special pollution pass that no other state gets. All other 49 states follow the Clean Air Act, and it’s time that politicians and polluters in Texas follow it, too. Our intent is to make sure this lawsuit considers the facts and science surrounding this issue and that re-election campaigns aren’t waged in the courtroom.”

The issue under contention stems from an action taken by EPA in June to formally disapprove the state’s Flexible Air Permitting rules as part of the state’s Clean Air Act implementation plan. On June 30, EPA disapproved the state’s implementation plan submittal, stating that the Texas Commission on Environmental Quality’s (TCEQ) Flexible Air Permitting program failed to meet minimum federal Clean Air Act standards.

EPA’s long anticipated action came after the Agency put all affected industries on notice in 2007 – under the previous administration – and took public comments last year. EPA took the action after nearly a decade’s worth of communication between the federal Agency and the TCEQ failed to resolve the issues.

“The EPA’s June 30 action to disapprove this program came as no surprise to anyone,” said EIP senior attorney and Texas program director Ilan Levin. “After being forced by an industry lawsuit to finally make a decision on whether the Texas Flexible Air Permitting rules measure up to minimum Clean Air Act standards, the EPA came to the only conclusion it could. Texans deserve the same air quality protections that residents of other states enjoy.”

EDF and EIP have been deeply involved with air quality issues and TCEQ’s permitting program for the last decade. During that time, the organizations have urged TCEQ and EPA to address numerous failings in the Texas air pollution program, including the state’s failure to comply with several basic federal Clean Air Act requirements. The groups have documented several failures of the Texas air pollution program, including state policies that allow companies to skirt federal requirements.

Flexible Air Permits – which assign pollution caps to entire facilities instead of regulating individual emission sources like boilers and flares – represent just one of the state’s shortcomings when it comes to air pollution. Flexible Air Permits issued by the TCEQ make it more difficult to enforce air pollution laws that protect citizens from harmful pollution and air toxics.

For more information about the Texas-EPA air permitting issue, please download our 6-page PDF fact sheet packet. And you can watch a short video about the how Texas air quality challenges are affecting residents near polluting facilities.

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