Texas Attorney General Ken Paxton has asked the U.S. Environmental Protection Agency (EPA) for a stay on a rule in its Clean Power Plan (CPP) pertaining to power generation, on the grounds that it would harm how the state handles electricity and would lead to higher costs and reliability concerns.
In a five-page letter Thursday to EPA Administrator Gina McCarthy, Jon Niermann, who serves as chief of the environmental protection division in Paxton's office, said the rule -- specifically, the Final Rule on Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units -- "represents a significant expansion of EPA's power without a legitimate legal basis."
Niermann added that the state has been successful with its Electric Reliability Council of Texas, a non-profit corporation that provides power to 24 million customers and manages about 90% of the state's electric grid.
In his letter, Niermann followed some of the same legal arguments that 15 other states have made -- that the Clean Air Act (CAA) prohibits the EPA from regulating hazardous air pollutants (HAP) at national standards under more than one section of the law.
The plaintiffs said Congress in 1990 expanded Section 112 of the CAA to include source categories for HAP, but said EPA could not also regulate source categories under Section 111(d), a rarely-used part of the law where EPA was granted the authority to require states to invoke HAP standards.
"Under this plain reading, EPA's proposed rule under Section 111(d) is clearly invalid because it seeks to regulate emissions from power plants, which are a source category already regulated under Section 112," Niermann said.
On Aug. 13, attorneys general for 15 states filed an emergency petition in federal court, urging it to intervene and postpone the CPP's deadlines (see Daily GPI, Aug. 14). They argued that the EPA exceeded its authority and gave states insufficient time -- 13 months -- to design and submit plans on how they would replace coal-fired generation with cleaner alternatives, including natural gas.
The Obama administration unveiled the final version of the CPP earlier this month (see Daily GPI, Aug. 3). The plan -- which embraces renewables, solar and wind power, but not so much natural gas -- calls for states to reduce emissions by 32% below 2005 levels by 2030. States will be required to submit a final plan to reduce their emissions by September 2016, but may request a two-year extension.