Texas Battles EPA Over Carbon Dioxide Rules

Texas and the Environmental Protection Agency are locked in a battle over carbon dioxide emission rules that could test the balance of power between the federal government and the states.

As he took the EPA to court, Texas Atty. Gen. Gregg Abbott questioned the federal government’s authority to mandate state actions.

“Once again the federal government is overreaching and improperly intruding upon the state of Texas and its legal rights,” Abbott said.

The dispute centers around new rules from the EPA that force states to cut emissions from cars, light trucks and new large industrial plants. While a dozen states joined Texas in an initial suit to challenge the new regulations, Texas was the only state to refuse to implement the rules while the court battle was pending.

That prompted the EPA to try to seize control of Texas’ permit process for emission allowances. A ruling in late December by the U.S. Circuit Court of Appeals for the District of Columbia Circuit temporarily delayed the EPA from acting. The ruling ensured that there will be a continuing series of court battles over the issue that will probably end up in the Supreme Court.

The new regulations stem from an earlier so-called “endangerment ruling” that allowed the EPA to regulate carbon dioxide as a pollutant.

In December 2009, the EPA declared that carbon dioxide and other greenhouse gases posed a threat by contributing to global warming, setting itself up to regulate the emissions. That ruling set off a firestorm as critics said that the link between carbon dioxide emissions and climate change was unproven and the cost of the regulations would be staggering.

The announcement of the EPA declaration was made with great fanfare. The administration chose the first day of the Copenhagan global warming conference to announce the decision, signaling to world leaders that Obama was determined to cut greenhouse gases either through legislation or regulation.

The route via legislation failed when the cap-and-trade bill, which passed in the House,
remained mired in the Senate last year as Democrats from Rust Belt states bailed from supporting the measure with polls showing little public support. Now with a Republican-controlled House, the bill has no chance of passing in the 112th Congress.

With the legislative route to curb greenhouse gases blocked, the EPA flexed its muscles on the regulatory end by moving to take over Texas’ emission permitting process.

The move came even though Texas has been successful in its pollution control efforts.

According to state officials, the Texas clean-air program achieved a 22% reduction in ozone and a 46% reduction in nitrous oxide, compared to 8% and 27% reductions nationally.

Texas Gov. Rick Perry cited both Texas’ progress against air pollution as well as the cost of the regulations to the state when reacting last summer to the EPA rules.

“Washington’s latest attempt to intrude on the state’s authority not only undermines Texas’ successful clean air programs, but it will cost the state tens of thousands of jobs,” Perry said. “Texas has a common-sense approach to permitting that has dramatically improved air quality while helping create jobs and grow our state economy. Yet the federal government continues to place a target on the backs of hardworking Texans.”

Underlying the battle is the legal question of where to draw the line regarding the balance of power between the federal government and the states.

While the 10th Amendment says that powers not explicitly granted in the Constitution to the federal government are reserved for the states, the growth of centralized government aided by court decisions has largely muted the states right issue.

Perry is a strong advocate for restoring the 10th Amendment back to what the Founding Founders intended.

In 2009, Perry caused a stir when he not only supported a resolution in the Texas legislature reaffirming the state’s 10th Amendment rights, but suggested that the state has the right to secede from the United State.

“I believe that our federal government has become oppressive in its size, its intrusion into the lives of our citizens, and its interference with the affairs of our state,” Gov. Perry said at the time. “I believe that returning to the letter and spirit of the U.S. Constitution and its essential 10th Amendment will free our state from undue regulations, and ultimately strengthen our Union.”

The battle with the EPA is the latest challenge by Texas to the federal government over the scope of mandates coming from Washington. Last year, Texas joined 20 states challenging Obamacare and also filed a legal brief supporting Arizona’s tough immigration laws.

The 10th Amendment is obviously taken more seriously in Austin, Tex., than it is in Washington, D.C. The Texas Public Policy Foundation, an Austin-based free-market think-tank, last year opened a Center for Tenth Amendment Studies.

In the center’s initial report, Ted Cruz, former state solicitor general, wrote:

“Today the expansion of the federal government proceeds at an unprecedented pace. The current administration has launched what many Americans see as an inevitable federal takeover of healthcare. It has undertaken environmental regulatory actions of historic sweep, seeking to regulate manifold areas of traditional state jurisdiction, and smothering less-favored industries in regulatory uncertainty. It has unleashed the greatest explosion in federal spending and borrowing in our history.

“These policies not only endanger our economic future—they also erode the constitutional constraints that were meant to shield local self-government and individual liberty from the dangerous accumulation of power in Washington. That is why the balance between state and federal powers matters. That is why the 10th Amendment matters. The 10th Amendment is more than a legal construct. It is an expression of the American tradition of self-governance.”