Clearing the Air on States’ Rights

When the Environmental Protection Agency concluded last December that greenhouse gases pose a danger to public health, the agency set itself on a path for the first time to regulate the emissions scientists blame for causing climate change.

“I absolutely prefer that the Senate take action,” EPA administrator Lisa Jackson said at the time, referring to everyone’s favored fix to the problem: a comprehensive climate bill stamped by Congress. “And I’m hopeful that they will.”

But, well, that never happened. And it’s hard to imagine now when it will. (Flash forward five months, and Jackson was sitting empty-handed this spring at an awkward Jon Stewart interview clearly booked to celebrate the release of a bipartisan climate compromise in the Senate. Republican Lindsey Graham backed out in the 11th hour.)

Now the EPA is barreling ahead on its own, and the agency is encountering every form of resistance Jackson surely imagined last December. Virginia sued the EPA over the science behind its “endangerment” finding. Alaska Sen. Lisa Murkowski threatened legislation stripping the EPA of its authority to regulate greenhouse gasses under the Clean Air Act.

And Texas this month sent Jackson — by fax, e-mail, U.S. mail and hand delivery — the legal equivalent of a middle finger, a biting six-page diatribe declaring it would take no part in new regulation, or as the letter put it, submit a “loyalty oath from the State of Texas” to the EPA.

“On behalf of the state of Texas,” wrote the state’s attorney general and the head of the Texas Commission on Environmental Quality, “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.”

A legislative solution to climate change would likely get bogged down in court appeals as well (think: health care). But the EPA’s attempt at regulation — which relies under the Clean Air Act on asking states to handle all their own permitting — invites an unsettling question: What exactly will happen if some independent-minded outposts simply refuse to go along, like Missouri voters did recently on mandatory health care?

The challenge of climate change by definition flouts local piecemeal response. Texas may not be interested in the new regime. But what spews from Texas smoke stacks pretty easily wafts across state lines into Oklahoma, Arkansas and Louisiana.

“The ultimate weapon for the EPA is they can disapprove the state’s plan,” said Trip Van Noppen, president of the environmental law firm Earthjustice. “They can take over the [local] permitting program themselves.”

But?

“But they don’t have the infrastructure to do that, they don’t like to do it, and in fact they almost never do it,” he said.

That means the EPA can take away Texas’ right to regulate its own industries, in this case large stationary emitters like power plants and oil refineries. But the EPA doesn’t actually have the regulators to replace them (and would almost certainly not get the money from Congress to hire more).

“I wouldn’t say it’s an empty threat,” Van Noppen said, “but it’s a threat a state might decide to test.”

For its part, the EPA says it is carrying out a legal obligation, not a passing political goal — and one handed to it by a landmark 2007 Supreme Court ruling. That 5-4 decision said the EPA could only avoid taking action on greenhouse gases if it concludes they don’t contribute to climate change.

In a sign it intends to push back against local rebellion, on July 29, the EPA rejected petitions by Virginia, Texas, the U.S. Chamber of Commerce and other industry groups questioning just that — whether the EPA had its science right in the first place in declaring greenhouse gasses a public danger.

If the EPA doesn’t stick to its responsibility, Van Noppen adds, citizens and advocacy groups have a right to sue the agency. And if Texas doesn’t play along, downwind states have a right to petition as well.

At play will inevitably be a bigger question: While Americans value local diversity in arenas like education, do we want to apply the same concept to heat-trapping gasses?

“That’s why it’s important to have a federal law, federal minimum standards,” Van Noppen said, “so we don’t have some states basically sacrificing people’s health to political aims.”