TCEQ chairman defends state agency’s fight with EPA

The chair of the Texas Commission on Environmental Quality on Thursday defended the state agency’s position in its battle with the federal Environmental Protection Agency over the use of “flexible permits” for industrial facilities.

Bryan W. Shaw, appointed as one of three commissioners of the TCEQ by Gov. Rick Perry in November 2007 but not confirmed by the Texas Senate until May 2009, was the keynote speaker at a Clean Air Forum sponsored by the Greater Houston Partnership (the region’s chamber of commerce) at the University Hilton at the University of Houston.

Shaw, an associate professor in the Biological and Agricultural Engineering Department at Texas A&M University who studies air pollution from agricultural sources and indoor pollution, told the luncheon audience that the agency “needs to be cognizant of the need we have for environmental improvement and the tools we have to make that happen.”

He said that TCEQ in recent years has been successful in “integrating views from various stakeholders” — including the manufacturing industry and environmental and citizens groups — to help achieve a cleaner environment while maintaining a strong economy, which he pointed out are both parts of the agency’s mission statement.

“A strong economy has a lot of good health impacts as well,” Shaw said, pointing to increased life expectancy of Americans since the Industrial Revolution with advances in nutrition and health care.

But, alluding to the nation’s current economic crisis, Shaw said “We need to protect those who are least able to contend with the hard times.”  He said the state’s environmental regulatory regime should be based on “the use of science, following the law, and a healthy dose of common sense.”

Turning to the controversy with the EPA over flexible permits, Shaw said the state enacted the program as a way of incentivizing the operators of aging industrial facilities that had no federal legal requirement to do so to either build new plants or install new equipment to bring them into compliance with federal regulations.

He said the flexible permit program has been “a very effective program for getting reductions,” and said that there are a couple of federal facilities in the state that have flexible permits.

While Shaw admitted that the EPA has long had concerns with the program, he said the view that such permits allow companies to “circumvent federal law” is false.

When the EPA decided last year that the program was not in compliance with federal regulations, he said, TCEQ tried to work with the federal agency to find out what the presumed deficiencies were and address them. He said that over time, it became apparent that federal officials were adamant that “We don’t want to have a flexible permit program.”

Shaw said that is where “the conversation shifted, and it’s a fundamental shift” away from good environmental policy. Under the flexible permits plan, the state has been able to achieve signficant reductions in emissions, he said.

He said the EPA’s current stance is “not only bad for the economy, bad for jobs, it’s also bad for the environment.”

“We need the best tools available, and not to handcuff ourselves,” he said.

Shaw also addressed the controversy over a 2007 U.S. Supreme Court decision that found the EPA must regulate so-called “greenhouse bases” from carbon-based fossil fuels under the Clean Air Act.

“The Clean Air Act is a poor vehicle for regulating greenhouse gases,” he said. Since those ages are “ubiquitous and spread uniformly around the globe,” any effort to control them strictly within the United States would be futile, he said.

Shaw said the effort, which is supposed to begin Jan. 1, would create “artificial incentives” to producers of alternative, non-carbon-based fuel sources. This would cause manufacturing and energy companies that are based on carbon sources to move overseas, where labor costs are lower and environmental laws are less strict, subjecting citizens of those countries to worse conditions.

“It will disable our economy and make us less well-situated to drive new technologies and new energy sources,” he said.

Shaw said he hasn’t yet seen the EPA’s new guidance by which greenhouse gases are to be regulated, which are to go into effect Jan. 1. But, he said, the EPA has already changed the threshold set by Congress for Texas’s State Implementation Program, changing the definitions set in 1993 to include greenhouse gases. This, he said, is against the law.

“We’re hoping to work with the EPA. We hope that some of the people there will say we need to stop and look at his further,” he said. But, taking a more pessimistic tone as he wrapped up his remarks, he said “We don’t see any obvious solutions on the horizon.”

[Read coverage of a January 2011 radio event featuring EPA Region 6 Administrator Al Armendariz here.]

During a brief question-and-answer session, Elena Craft of the Austin office of the Environmental Defense Fund asked Shaw what TCEQ’s answer for controlling greenhouse gases is.

“We need to have a more defined, science-based approach on how to provide incentives to industry” for reducing those emissions,” he said.

Another questioner asked Shaw what effect he saw the Republican takeover of the U.S. House in Tuesday’s midterm elections would have on the environmental debate.

Shaw said “it depends,” but that it was likely that the Obama Administration and congressional Democrats would show less emphasis on a cap-and-trade program and “less push from the EPA” on state agencies and industry.

“I’m hoping that we’ll see a more common-sense, genial approach,” he said, that would “get us out of this recession so we can pave the way to more environmental improvements.”

UPDATE: On August 13, 2012, the Fifth U.S. Circuit Court of Appeals rejected the EPA’s disapproval of Texas’ flexible permits program, saying it was not supported by the Clean Air Act.

On March 12, 2013, the Houston Chronicle reported on a thaw in relations between the TCEQ and the EPA’s Region 6, under its new administrator, Ron Curry.

NOTE:  An earlier version of  this post included a question from Elena Craft to Shaw about why he said he hadn’t seen EPA guidance on greenhouse gas regulations when, she said, she had sent it to him a couple of weeks earlier. Craft later wrote this reporter to say that the guidance she was referring to came from the White House’s Council on Environmental Quality.

Click on the links to read coverage of Texas Sunset Advisory Commission “Environmental Town Halls” held in Houston and Beaumont.

RELATED: EPA administrator addresses TCEQ fight in Houston event

Copyright © 2010 Ken Fountain. All rights reserved.

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About Ken Fountain

I'm a journalist and writer in Houston, Texas. My areas of specialty inxfcgclude law and courts, local government and industry and environmental issues. You can follow me on Twitter at @twitter.com/kenfountain and email me at kenfountain1 (at) gmail (dot) com.

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