Public Citizen lawsuit seeks to require Texas Commission on Environmental Quality to regulate greenhouse gases
On Tuesday, the environmental group Public Citizen filed a lawsuit against the Texas Commission on Environmental Quality (“TCEQ”) seeking to require it to regulate carbon dioxide and other greenhouse gases. The lawsuit is believed to be the broadest attempt so far to force a state to control greenhouse gases through the permits granted by a state for power plants, refineries, factors, and similar industrial facilities. Public Citizen’s filing is most likely timed to coincide with Congress’ consideration of landmark climate change legislation and the December 2009 United Nations Climate Change Conference in Copenhagen.
Public Citizen’s complaint contains arguments similar to those successfully advanced in the 2007 Supreme Court decision Massachusetts v. EPA, in which the Court found that greenhouse gases, including carbon dioxide are air pollutants covered by the Clean Air Act and that the Administrator was required to determine whether emissions of greenhouse gases cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. The Public Citizen complaint makes additional arguments based on Texas law. For example, while the Texas Clean Air Act says the TCEQ shall regulate contaminants that threaten public health, safety and welfare “by all practical and economically feasible methods,” Public Citizen alleges that during permit disputes Texas rules bar any discussion of carbon dioxide or global warming and “block the collection of information about CO2 emissions in Texas – which are immense, increasing, and dangerous.”
Texas was poised as a prime target for Public Citizen as it apparently tops the list of states in man-made greenhouse gas emissions and would rank seventh in the world, if it were a separate country. Additionally, Texas Governor Rick Perry has hotly opposed regulating CO2 or other greenhouse gases either at the state or national level.
A ruling requiring regulation of carbon dioxide and other greenhouse gases would likely immediately impact ongoing disputes over new coal-burning power plants, the largest industrial source of CO2 in Texas.
According to Public Citizen, opponents to new coal-burning power plants in Texas have repeatedly been barred from raising legal arguments about the proposed plants’ CO2 emissions, with state administrative judges citing the lack of state or federal regulations. “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,” said Tom “Smitty” Smith, director of Public Citizen’s Texas office.
