Can Texas Thwart the EPA?

Each week State Rep. Lyle Larson, (R) San Antonio, sends out an update on bills being heard in committee in his Weekly Recap.  One of the bills Larson is sponsoring is HB 3188.

HB 3188 This legislation would allow Texas agencies like the Texas Commission on Environmental Quality (TCEQ) to refuse to administer federal Environmental Protection Agency (EPA) greenhouse gas regulatory programs. We believe environmental management is the sole responsibility of the states, as evidenced by the Tenth Amendment to the Constitution. This bill would put the power back in our hands.

Meanwhile, in the US House of Representatives, the budget debate is being slowed down by five policy issues, one of which is the EPA's regulation of greenhouse gases.

Greenhouse gases and EPA: Rep. Ted Poe, R-Texas, pushed through an amendment to block the Environmental Protection Agency from regulating the greenhouse gas emissions that cause climate change. Poe's proposal passed 249-177, with 13 Democrats backing his effort. Obama and Democrats in the Senate aren't budging. "Neither the White House nor the Senate leaders are going to accept any EPA riders they have in their bill," Reid told reporters recently.

So if Larson's bill becomes law, will it stand up in court?  How much power does the EPA have over the states?

 First a brief history of the EPA.  The EPA was created in 1970 by Richard M Nixon by executive order to comprehensively regulate environmental pollutants.  Since the EPA is an executive agency, its policies change as presidential administrations change.  The agency is charged with administering over 30 environmental laws and executive orders.

In 2007, another Texan tried to temper the EPA's control of greenhouse gases, George W. Bush.  

The Bush administration contended that 

the EPA has discretion to decide when and how to best respond to international environmental threats.

However, in the Supreme Court case, Massachusetts v the Environmental Protection Agency 

The petitioners claimed that human-influenced global climate change was causing adverse effects, such as sea-level rise, to the state of Massachusetts. In a 5-4 decision, the court ruled in favor of Massachusetts et al, finding that EPA has the authority to regulate CO₂ and other greenhouse gases.

The EPA [under the Bush Administration] argued that it was not given the authority under the Clean Air Act to regulate CO₂ or other greenhouse gases. The Court challenged the EPA’s refusal to regulate CO₂ as an air pollutant under the statute. The Court found that CO₂ fits within the statute’s broad definition of an air pollutant. Further, the Court stated that “EPA identifies nothing suggesting that Congress meant to curtail EPA’s power to treat greenhouse gases as air pollutants.” In its case, the EPA argued that regulating CO₂ would require regulating fuel economy standards, which – according to the EPA – is under the purview of the Department of Transportation. The Court countered the EPA by recognizing that multi-agency efforts can indeed overlap when addressing an issue as important as global climate change: “The fact that DOT’s mandate to promote energy efficiency by setting mileage standards may overlap with EPA’s environmental responsibilities in no way licenses EPA to shirk its duty to protect the public health and welfare.” Protecting public health and welfare is a duty mandated by the Clean Air Act.

When the Obama Administration took over the Oval Office, the EPA began to move on regulating green house gasses.  In December 2010, the EPA tried to force Texas into compliance by overstepping the Texas Commission on Environmental Quality to enforce the new regulations after the state agency refused to comply.  

Last month, when Texas did not implement the new rules, EPA released a plan to seize control of greenhouse permitting in the state. But the agency must wait at least a week so judges can make a decision on Texas' legal bid to stave off federal intervention, the U.S. Circuit Court for the District of Columbia ruled Thursday.
The temporary delay "should not be construed in any way as a ruling on the merits" of the state's lawsuit, the order (pdf) said.
It is a small setback for EPA, which has promised a smooth transition as Texas and more than a dozen other states challenge the new climate regulations in court. But while the other challengers are going along with the new rules while their lawsuits move through the courts, Texas has refused, saying that EPA has shut the state out of the process by ignoring the usual procedural steps.

If a court stay only lasts for so long, how do you slow down the EPA?  Take away its money.

House Republicans Propose Cuts to Climate Change Programs for 2011
On February 19, 2011, the House of Representatives passed a continuing resolution, H.R. 1, that would fund the federal government for the rest of fiscal year 2011.  Because a budget for fiscal year 2011 was never approved, the government is being funded during fiscal 2011 by continuing resolutions that are based on the 2010 budget.  The current continuing resolution expires on March 18, 2011.  H.R. 1 would cut EPA’s 2011 funding by $3 billion from 2010 levels, to $7.3 billion.  It would restrict EPA from using any funds to regulate or limit GHG emissions, and it removes all funding for states to develop, and EPA to consider, GHG permits.  The continuing resolution would also cut $60.3 million from various other EPA climate change programs and would bar the government from using appropriated funds to make contributions to the Intergovernmental Panel on Climate Change.  Finally, H.R. 1 would prevent EPA from implementing its Clean Air Act waiver for E-15 gasoline during fiscal year 2011.  To be implemented, the resolution must go to the Senate, where majority Democrats have opposed the environmental provisions of the continuing resolution and promise to rewrite the resolution, which then must be approved by the President.

So would a state law hold up to Supreme Court scrutiny?  Based on precedent, the Supreme Court has already decided that the EPA has the authority to enforce green house gas emission regulations.  But what about the money?  Right now neither the Senate nor the President are going along with the House on cutting funding to the EPA.  The budget process is pretty much at a stand still and threats of a government shut down are looming large.  I guess it comes down to who blinks first.