But What About Texas? Climate Disruption Regulation in Recalcitrant States

Abstract

The State of Texas has had a long history of resistance to federal environmental regulation. For most of the past forty years, Texas’s political leadership has been far more concerned about the negative impact that environmental regulation could have on economic growth than with the effects that pollutants could have on human beings and the global environment. The state’s environmental protection agency, the Texas Commission on Environmental Quality (“TCEQ”), has historically taken the position that its highly qualified staff is capable of achieving the Clean Air Act’s environmental goals with little oversight from the U.S. Environmental Protection Agency (“EPA”). The state’s powerful congressional delegation has often persuaded EPA to look the other way when TCEQ failed to meet the state’s obligations under federal law. Despite frequent complaints from environmental groups that TCEQ was a “toothless lapdog” for the industries that it was supposed to be regulating, EPA has historically handled Texas with kid gloves.That changed rather dramatically during the Obama Administration when a committed EPA Regional Administrator assumed permitting responsibilities for the greenhouse gas (“GHG”) emissions of major stationary sources in Texas after TCEQ’s Chairman and the Attorney General of Texas informed EPA that Texas would have no part of a program that they believed to be wholly unlawful and illegitimate. At the same time that Texas refused to implement EPA’s GHG regulations, it vigorously challenged them in the D.C. Circuit Court of Appeals. Texas ultimately lost all of those appeals, the most recent of which was the Supreme Court’s decision in Utility Air Regulatory Group v. EPA (“UARG”). But by no means is Texas resigned to following EPA’s lead in regulating GHG emissions to avoid climate disruption.This Essay will recount the history of EPA’s efforts to deal with a recalcitrant state bureaucracy and EPA-bashing political leaders as EPA attempted to reduce GHG emissions in a state that emitted more GHGs than any other state. It will then offer some observations on the impact of UARG on the future of GHG regulation in Texas, a state that views UARG as a victory and remains adamantly opposed to regulating GHGs unless required to do so by federal law.