Texas Balking as Federal Climate Rules Loom

Come August, the U.S. Environmental Protection Agency may require Texas to cut 200 billion pounds of carbon emissions over the next two decades. Top Republican officials still won’t confirm whether Texas will flout those rules — an option that some critics call risky.

Texas Attorney General Ken Paxton speaks to media after keynoting a June 2015 event hosted by the Texas Public Policy Foundation regarding impact of the EPA's Clean Power Plan.

Texas’ Republican leadership clearly disdains President Obama’s landmark proposal to combat climate change by slashing carbon emissions, and Attorney General Ken Paxton has announced plans to sue over the rules.

But with the U.S. Environmental Protection Agency planning to finalize its Clean Power Plan in August, top officials still won’t say whether Texas will flout those rules – an option that some critics call risky.

“There’s no decision that’s been made,” Bryan Shaw, chairman of the Texas Commission on Environmental Quality, the agency that would be charged with implementing the rules, told The Texas Tribune on Monday. “It’s difficult to know what to plan for without knowing the rule.”

Shaw made the comment after speaking at a Texas Public Policy Foundation event aiming to poke holes in the federal plan, which, as written, would require the state to cut close to 200 billion pounds of carbon dioxide emissions in the next two decades however it sees fit. 

The EPA suggests Texas could meet that goal through a combination of actions called “building blocks”: making coal plants more efficient, switching to cleaner-burning natural gas, adding more renewable resources and bolstering energy efficiency. Under the proposal, Texas could also adopt a "cap-and-trade" program — a scheme in which companies bid on the right to pollute. 

Environmental and health advocates say limiting the greenhouse gas would help fight climate change, bolster public health and conserve water in parched Texas, and they suggest that opponents are exaggerating the economic burdens. 

Texas Republicans have loudly panned the federal requirement, which they say would increase prices and threaten reliability on the electric grid, and Monday’s discussion at the powerful conservative group’s headquarters provided no exception.

Paxton, who keynoted the event, called the looming rules “an example of the president forcing through what he could not accomplish legislatively” and part of his “war on coal and fossil fuels.” He suggested that they would unleash uncertainty across the Texas economy. 

“You can’t spell unpredictability without EPA,” he told the audience, drawing laughs. 

But asked whether Texas would — or should — refuse to follow the rules, Paxton was noncommittal.

“I leave that up to the Legislature, and what they want to do. My goal is to go and fight them in the courts and win,” he told reporters.

So far, the Legislature, which wrapped up business June 1, has done nothing except reject all proposals instructing Texas regulators to construct a climate plan. Lawmakers aren’t scheduled to meet again until January of 2017, likely giving them little time to submit a plan to the EPA before a deadline.

Under the current proposal, Texas would have one year to comply once the rules are final. Shaw said his agency would struggle to cobble together a plan within that time frame, even though it has had a year to digest a proposal. Shaw said Texas has taken 18-months to a year to implement a “typical” federal rule, and called this one particularly complex.

If Texas ignores the rules — and loses its likely legal challenge — the EPA would construct its own plan for Texas, though the agency has not said what that might look like. 

Critics have called that strategy risky.

“We are an energy leader, both in fossil fuels and renewables, and our plan will look nothing like a one-size-fits-all plan that would likely be imposed on the state,” said Rep. Rafael Anchia, D-Dallas, who led the unsuccessful push to construct a climate plan, in a recent interview. “It’s bad for Texas business and we are abdicating our responsibility.”

The last time Texas refused to follow climate rules, the regulations involved "greenhouse gas permits" needed to build facilities. Without those permits, companies couldn't build large industrial plants, prompting an outcry. 

Texas has fared poorly in its lawsuits against the Obama administration's climate regulations, litigation that has cost the state more than $400,000, according to the attorney general's office. In 2013, the Supreme Court declined to hear the state's appeals in two cases it had lost in lower courts: a challenge to the EPA's “endangerment finding,” which states that greenhouse gases are a danger to public health and welfare, and a challenge to rules that limit greenhouse gas emissions from vehicles.

The Supreme Court also largely struck down Texas' challenge to the EPA's regulation of greenhouse gases from large industrial plants in June of 2014. And the state lost its battle against a different environmental rule, aimed at limiting air pollution that crosses state lines, in the Supreme Court in April of last year.

On Monday, Paxton said, “I’m always worried about risk, but in that particular case, we plan on fighting it in court, and we plan on winning.”

Opponents of the federal rules suggest that this legal challenge would be different, because the rules reach farther than others have, dealing with the makeup of the state's electric portfolio, rather than just the equipment power plants run on – potentially overstepping authority under the Clean Air Act.

“This is unprecedented,” Mike Nasi, an attorney representing the energy industry, said at the conservative event. “Never have we had somebody try to contort the Clean Air Act in such a way.”

The Texas Public Policy Foundation is a corporate sponsor of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.