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EPA's Bad Science to Blame for State's Latest Challenge

An Oct. 4, 2011, editorial by Bryan W. Shaw, Ph.D., Chairman, Texas Commission on Environmental Quality.

The state of Texas is again being forced to take legal action against the federal EPA, this time to stop enforcement of the new Cross-State Air Pollution Rule (CSAPR). EPA apologists continue to demonstrate a lack of basic understanding of the rule and a dangerous, misguided belief that CSAPR should be accepted without the scrutiny of law, science, and common sense.

When the EPA puts forward a regulation that is not based on facts, doesn’t follow its own rules and will have significant adverse impacts to this state, Texas has the right and the obligation to its citizens to pursue legal remedies. Texas must protect Texans from the real, immediate harm this rule will inflict. Blame EPA’s insistence on using bad science and flawed legal arguments for Texas’ need to stand up and challenge EPA’s actions yet again.

Let’s be very clear about the facts. The last-minute inclusion of Texas in the sulfur dioxide portion of the rule is based on modeling that says an Illinois monitor, located across the street from a steel mill, shows a theoretical reading that is slightly above attainment. Actual data from 2009 forward shows that this monitor is meeting the federal air quality standards today. And even if the feds relied on their own computer simulated modeling predictions, that monitor would be in attainment in 2014 without any reductions from CSAPR. So does Texas’ tenuous link to this monitor justify the state’s inclusion in CSAPR? No.

The EPA stridently insists the law doesn’t go into effect until March 2013, and this gives companies plenty of time to comply. This is patently wrong, so let’s clear the air on this misrepresentation as well. Fines, and even criminal penalties for noncompliance, will be based on how plants operate starting January 2012. March 2013 is merely the due date for the paperwork that demonstrates compliance. And since installing equipment to achieve compliance can take years, companies will have to depend on “credits” being available for purchase at a reasonable, predictable cost… an enormous gamble to take in the real world.

The EPA continues to throw out theoretical numbers showing impressive health effects from these initiatives, but federal legislators are growing increasingly short-tempered over the EPA’s refusal to provide the data and studies to back these projections.

And while the EPA and its defenders cast doubts that these rules will really cost jobs and impact the state’s supply of electricity, both the PUC and ERCOT have testified repeatedly that the power grid will be negatively impacted by CSAPR. Luminant was forced to make a business decision to comply with this rule, leading the company to announce that it will need to lay off 500 employees and shut down two of its units. Other companies are facing similar business decisions and their impacts will be felt throughout Texas.

The State of Texas cannot ignore the flaws of this rule. It would be irresponsible to simply accept that there are Texans who will lose air conditioning during the hottest hours of the hottest months next summer because an EPA computer model shows an air monitor in Illinois may exceed the standard.

While individuals can reach different conclusions based upon the same set of facts, defenders of the EPA should seriously consider the consequences of blindly endorsing bad law just because it comes out of Washington, D.C.