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Texas Takes Stand Against EPA – Will Virginia Follow?

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The state of Texas, in a letter of August 2, 2010, declared “…we write to inform you that Texas has neither the authority nor the intention of interpreting, ignoring, or amending its laws in order to compel the permitting of greenhouse gas emissions.” Although Virginia has initially replied in writing that it would go along with the EPA, that decision from the Department of Environmental Quality (DEQ) was couched carefully and said that the Attorney General will make the final decision. That decision is pending.

This dispute will impact agricultural operations either now or in the future. Texas is telling the Obama Administration’s EPA it is violating the law. One of my friends said to me, “This is the best letter I have ever read regarding telling EPA it is wrong and is acting illegally.”

In the last year, EPA has decided to ignore Congress and has undertaken a program to regulate greenhouse gas (GHG) emissions from large sources throughout the country. EPA has issued at least five regulations. One may already cover your agricultural operation, and that is the Greenhouse Gas Reporting Rule of September, 2009. This rule requires operations emitting 25,000 metric tons of CO2 and CO2 equivalent per year to report the emission levels annually to EPA.

This reporting regulation will generally cover manure management systems. Some in the cattle industry believes the rule might require reporting from operations with no more than 180 head of beef cattle. EPA believes the rule covers cattle operations with 29,300 head or larger. Dairy operators have advised me the reporting rule would cover dairy operations of 4,000 head or larger.

EPA  told the states that, by August 2, 2010, they had to agree to regulate greenhouse gases in the exact manner and regulations prescribed by EPA. Otherwise, EPA will take over a state’s air permitting system to regulate new sources under what is called EPA’s PSD and Title V regulations. This means EPA  would require permitting of new stationary sources or major modifications if the source emits 75,000 tons per year of CO2. By 2016 EPA will seek to regulate smaller sources, which means: Agriculture, look out. More job killing delay and regulation ahead.

The Attorney General’s letter states it believes EPA is out of line:

To encourage acquiescence with your unsupported findings, you threaten to usurp state enforcement authority and to federalize the permitting program of any state that fails to pledge their fealty to the Environmental Protection Agency (EPA).

EPA, incredibly, is promulgating rules to regulate CO2 without going through lawful processes. Texas is saying it will not be a party to such unlawful acts. EPA realizes that under its present PSD rules it does not have the personnel to regulate new stationary sources being proposed for attainment areas which emit 250 tons per year.

Another section, Title V of the Clean Air Act, is triggered if a stationary source emits 100 tons or more per year. These numbers are in the statute! EPA is saying it has the authority to change the statute! Even EPA says regulating new facilities emitting these small amounts would be considered “absurd.”
So in May of this year, EPA decided to issue the Tailoring Rule. The rule simply ignores the statute.

EPA simply issued a Tailoring Rule which will only regulate large sources of GHG emissions of 75,000-100,000 tons. The two permitting programs are complicated and there is not room to discuss them here. Needless to say, EPA is simply breaking the law and Texas  has called EPA’s hand. EPA is saying to Texas and other states it will regulate all greenhouse gases starting on January 2, 2011.

Texas states in its letter “EPA has shown no intention of following the Clean Air Act procedures…” Texas goes on to say EPA is demanding a loyalty oath from the state of Texas and Texas refuses to take that oath nor will it be forced to “pledge allegiance” to the EPA rules. Texas officials make it very clear that “Texas will not facilitate EPA’s apparent attempt to thwart these established procedures and ignore the law.”  Virginia should follow Texas’ lead and stand up to the EPA in the same manner.  Otherwise the consequences could be dire.

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