How Texas can get more time on EPA rules

Photo by flickr: SeƱor Codo

Last Friday, the U.S Environmental Protection Agency formally published its Clean Power Plan, a set of regulations requiring a 32 percent reduction in carbon dioxide emissions from American power plants by 2030. Almost immediately, a coalition of states (including Texas, naturally) filed suit challenging the legality of the rule.

The legal challenge to the Clean Power Plan will take years to resolve. In the meantime, states are supposed to submit their own emissions-reduction plans to the EPA by September 2016. Failure to submit a plan could result in the federal government imposing its own plan, in what amounts to a takeover of Texas' independent electrical system.

All of this has put Texas in a tight spot. The state Legislature isn't set to meet until 2017, after EPA's deadline. And state environmental regulators don't have authority under existing state law to do what EPA is asking, even if they wanted to.

But there is a way for Texas to buy more time to respond properly to the Clean Power Plan without risking its independence or its economy. Along with the rule, the EPA published a memo Friday indicating that if a state is unable to complete a full emissions-reduction plan by the September 2016 deadline, it could apply for an extension if it met several basic requirements. The extension, which would push back the deadline until September 2018, would give the Legislature time to examine its options and would not compromise any political or legal challenges the state wanted to make against the Clean Power Plan itself.

To qualify for an extension, a state's initial filing has to do three things. First, it has to identify what sort of plan the state is considering and include a description of progress made toward preparing the plan. The EPA notes the state "need not commit in their initial submittal to any one plan approach, and ... may identify more than one approach." Nor does the submission have to include "technical data or quantitative analyses." In other words, the submission can be very general, and nothing in it ultimately commits a state to pursue that particular course.

Second, a state seeking an extension must explain why it needs more time. This is an easy one for Texas: the Legislature won't meet until after 2016, and without legislative action, it's simply not possible for the state to put together a viable plan to meet the Clean Power Plan targets.

Finally, the state must provide opportunities for public comment on the plan approaches it is considering, including input from vulnerable communities. The higher electrical prices induced by the EPA's regulations would disproportionately impact low-income Texans. Communicating these risks to the general public, and hearing about the real-world impact, is something the state should do regardless of whether it seeks an extension.

Opting for an extension would not undermine Texas' legal challenges to the Clean Power Plan, nor would it prevent efforts in the halls of Congress to repeal the rule. If anything, the extra time granted by an extension would allow the state to get a better sense of how those fights are likely to be resolved before it commits to a specific approach. And avoiding the immediate imposition of a federal plan would keep Texas in control of its own energy destiny.

Josiah Neeley

Energy policy director, R Street Institute