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Earthjustice: EPA's haze plan for Texas 'a sham rule'

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Earthjustice: EPA's haze plan for Texas 'a sham rule'

Environmental groups assert that the U.S. Environmental Protection Agency's new plan to address regional haze in Texas will actually cause emissions to rise, setting up another chapter in the long-running fight to force a handful of coal-fired generators to install emissions controls in the state.

On behalf of several environmental groups, Earthjustice complained to a federal district court that the EPA's federal implementation plan will allow the generators at issue to release more emissions than they did in 2016. The EPA issued the plan Sept. 29, after attempting to delay a consent decree requiring the agency to issue the plan by that date. But the final version was vastly different from the proposed version crafted by the Obama administration in December 2016 that was generally supported by environmental groups.

The December plan would have applied specific technology requirements to certain power plants in Texas in a way that Earthjustice said would have cut haze-causing pollution by more than 190,000 tons compared to recent emissions levels.

The new plan, issued by the EPA's new leadership under the Trump administration, adopted an intrastate trading program that would not require any individual power plant to reduce its emissions and, according to the environmental groups, will cause emissions to increase 74,813 tons above 2016 levels. The groups therefore asked the court to force the EPA within 30 days to issue a plan more in line with the December proposal.

The agency's new plan "attempts another end-run around this court's order," and "creates out of whole cloth" a new proposal that was specifically requested by industry, Earthjustice argued.

"EPA's ... action is a sham rule that flagrantly violates notice and comment procedures mandated by the Clean Air Act," Earthjustice added. "Instead of finalizing a rule that was contemplated by the proposal — a proposal that was the subject of extensive notice and comment (including a public hearing) — EPA has issued a drastically different rule that has never been subject to notice and comment."

Texas failed to submit its own plan to address regional haze 10 years ago — a fact the court acknowledged in denying the EPA's latest request to delay the implementation of the consent decree. The EPA has also missed by five years a court-ordered deadline to take final action on a federal implementation plan, although the parties to the matter have mutually agreed to a number of extensions.