AUSTIN, Texas - Saying that climate change must be considered when new coal plants and other facilities are approved, Public Citizen today sued the Texas Commission on Environmental Quality (TCEQ)
in the Travis County District Court to require the commission to
regulate global warming gases. This case seeks to extend to Texas law
the precedent set by the U.S. Supreme Court in Massachusetts  v. EPA,
which held that carbon dioxide is a pollutant under the federal Clean
Air Act and that the U.S. Environmental Protection Agency (EPA) must
regulate it.

“Texas leads the nation in the emissions of global warming gases. If
we were a nation, we would rank seventh in emissions among the
countries on earth,” said Tom “Smitty” Smith, director of Public
Citizen’s Texas office. “The time has come for the TCEQ to take its
head out of the sand and begin the process to regulate CO2 emissions
from Texas sources. Because the agency will not do so on its own, we
are seeking to have a Texas court order it to do so.”
 
In the past four years, 11 coal plants have applied for permits under
the EPA’s New Source Review program, which requires companies to
install modern pollution controls when building new plants or expanding
existing facilities. If they were all to be built, they would add 77
million tons of CO2 to Texas’ already overheated air. Six permits
already have been granted for plants that will produce CO2 emissions of
42 million tons per year. Another five are in the permitting stages,
and they would add 35 million tons of CO2 per year.

The issue of global warming has been raised by opponents in permit
hearings in all but one of the six power plant cases, but the TCEQ has
said it would not consider global warming emissions in the permitting
process. Beginning this month, hearings will begin on permits for the
remaining five plants.

Texas law gave the TCEQ the authority to regulate climate change
emissions in 1991. In May 2009, the Texas Legislature passed a series
of laws that would give incentives for new power plants that capture
carbon dioxide, allow the TCEQ to regulate the disposal of CO2
emissions, set up a voluntary emissions reduction registry and develop
a “no-regrets” strategy for emissions reductions to recommend policies
that will reduce global warming gases at no cost to the state and its
industries. 

  Smith noted that the TCEQ is undermining even the inadequate
mitigation strategies that several coal plant builders are proposing.
The NU Coastal plant promised to offset 100 percent of its CO2
emissions, but the TCEQ refused to make that promise part of the
permit. Tenaska is promising to separate 85 percent of the carbon it
emits, but it is not in the draft permit from the TCEQ. The Hunton coal
gasification plant will separate 90 percent of its CO2, but the TCEQ
classified it as an “experimental technology” so it wouldn’t set a
precedent for other coal plant applications. NRG is promising to offset
50 percent of its emissions.

“Without the TCEQ putting these limits in the permits, there will be
no guarantee that the power plant builders will keep their promises,”
Smith said.

“The TCEQ steadfastly refuses to allow any discussion or
consideration of CO2 or climate change issues during permit
proceedings,” said attorney Charles Irvine of Blackburn & Carter,
who is representing Public Citizen in the case. “The State Office of
Administrative Hearings administrative law judges have deferred to
TCEQ’s position that CO2 is not a regulated pollutant and therefore not
relevant during contested case hearings. As a result, all evidence and
testimony submitted on these issues has been repeatedly stricken in
multiple coal plant cases. We now ask the court for a declaratory
judgment to force the agency to follow the broad mandates of the Texas
Clean Air Act and recent Supreme Court decisions.”

In 2007, the U.S. Supreme Court in Massachusetts  v. EPA recognized
that CO2 is an air pollutant within the definition in the federal Clean
Air Act. Public Citizen contends that the Texas Clean Air Act’s
definition of “air contaminant” similarly must include CO2.
Specifically, the state law says that:

“ ‘Air contaminant’ means particulate matter, radioactive material,
dust, fumes, gas, mist, smoke, vapor, or odor, including any
combination of those items, produced by processes other than natural.”
[Texas Health and Safety Code § 382.003(2)]

“So any gas created by non-natural processes - including CO2
generated by a power plant - under the plain language of the definition
is an air contaminant,” Irvine said.

READ the lawsuit.