Texas Proposes New GHG Emissions Rules

In response to the standoff between the U.S. Environmental Protection Agency (EPA) and the State of Texas over EPA’s promulgation of new rules regulating stationary-source greenhouse gas (GHG) emissions, the Texas Legislature enacted House Bill 788 to provide the Texas Commission on Environmental Quality (TCEQ) with GHG permitting authority. On October 23, 2013, the TCEQ proposed rules to implement HB 788. The new rules, once promulgated, will for the first time empower the TCEQ to issue permits and other forms of authorization for GHG emissions in Texas. The TCEQ has estimated that there may be as many as 1,800 existing sites at which emissions could trigger GHG review in the future.

While the State of Texas continues to challenge EPA’s GHG rules in court—so far unsuccessfully, although the U.S. Supreme Court has accepted certiorari on one challenge—the stage is now being set for Texas to issue GHG permits. If the Supreme Court affirms EPA’s authority to regulate GHG emissions through the Clean Air Act (CAA)’s programs for the permitting of new and modified stationary sources, then TCEQ’s GHG permitting rules will govern future GHG air permitting in Texas. On the other hand, if the Supreme Court ultimately rules against EPA and finds that the Agency lacks authority to use the CAA’s permit programs to regulate stationary sources of GHGs, Section 2 of HB 788 also allows the TCEQ to repeal these rules. A Supreme Court ruling is expected before the end of the Court's current term in June 2014.