EPA Claims Authority for GHG Permitting in Texas

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On December 21, 2010, EPA Assistant Administrator Gina McCarthy issued a letter to Texas Commission on Environmental Quality(TCEQ) Chairman, Dr. Bryan Shaw, stating that the EPA intends to take over permitting for greenhouse gas (GHG) sources as of January 2nd , 2011. The letter states that the “EPA [has] no choice but to resume its role as the permitting authority, in order to assure that businesses in Texas are not subject to delays or potential legal challenges and are able to move forward with planned construction and expansion projects that will create jobs and otherwise benefit the state’s and nation’s economy… EPA intends to promulgate a partial disapproval of Texas’ PSD program and a Federal Implementation Plan (FIP) to take effect by January 2nd, 2011.”

Background: EPA issued a final State Implementation Plan (SIP)Call for 13 states, including Texas, on December 13, 2010. The SIP Call required that these states submit a corrective SIP revision, or risk the EPA taking over permitting authority for GHG sources by issuing a FIP. Texas had a SIP revision due date of December 1st, 2011, but EPA had cautioned that the EPA was also “planning additional actions to ensure that GHG sources in Texas can be issued permits as of January 2nd, 2011.”1

In response to the final SIP Call, Texas filed a Petition for Review on December 15, 2010, in the United States Court of Appeals for the Fifth Circuit on the final SIP Call.2 The petition states that the GHG SIP Call is arbitrary and capricious, contrary to the CAA, causes direct harm to Texas’ permitting authority, and imposes a construction moratorium on GHG sources.

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