Green Group Sues Texas Agency Over Greenhouse Gas Emissions

A national environmental group argues in a recent lawsuit that Texas regulators should consider greenhouse gas emissions when reviewing proposals for new coal-fired power plants and other facilities in the state.

Public Citizen filed the complaint in the Travis County District Court, asserting that the state should follow the precedent set by the U.S. Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007).

In Massachusetts the high court ruled that the U.S. Environmental Protection Agency had the authority to regulate carbon dioxide as a pollutant under the Clean Air Act.

"Texas leads the nation in the emissions of global warming gases," Tom Smith, director of Public Citizen's Texas office, said in a statement. "If we were a nation, we would rank seventh in emissions among the countries on earth."

According to the Global Climate Law Blog published by the Howrey Law Firm in Washington, the lawsuit is the broadest attempt so far to force a state to control greenhouse gases through the permits granted for power plants, refineries and similar industrial facilities.

The suit likely is timed to coincide with Congress' consideration of climate change legislation and the United Nations' climate change conference to take place in December in Copenhagen, Denmark.

According to the complaint, the Texas Commission on Environmental Quality issued permits for coal-fired plants without taking into consideration the carbon dioxide emissions. This action allegedly contributed to the state's ranking as the nation's largest carbon dioxide emitter, accounting for 677 million tons of this pollution in 2007.

Under the plain language of Texas' Clean Air Act, carbon dioxide is both an air contaminant and an air pollutant. The statute requires the CEQ to regulate carbon dioxide and to allow adversely affected people to challenge such emissions from proposed power plants, the suit says.

Existing agency rules eliminate all opportunities for people facing significant harm to present facts about carbon dioxide, global warming and climate change in permit proceedings for fossil-fuel-fired power plants. The current rules "even block the collection of information about carbon dioxide emissions in Texas," the complaint says.

The CEQ refuses even to allow consideration of the dangers of global warming and climate change in permit proceedings for coal and petroleum coke power plants in the state, Public Citizen says.

The suit is seeking a declaratory judgment to force the agency to allow parties to present testimony and other evidence on carbon dioxide, global warming and climate change in contested case hearings.

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Public Citizen is represented by Charles Irvine and James Blackburn Jr. of Blackburn Carter in Houston and David Kahne, both in Houston.