Court orders EPA to meet Texas haze deadline, calls out Scott Pruitt’s stall tactics

"Cooperative federalism" has had plenty of time to take hold, court argues.

The coal-fired Fayette power plant in Ellinger, Texas is owned by the Lower Colorado River Authority and Austin Energy. CREDIT: AP Photo/David J. Phillip
The coal-fired Fayette power plant in Ellinger, Texas is owned by the Lower Colorado River Authority and Austin Energy. CREDIT: AP Photo/David J. Phillip

A federal court denied a motion Thursday to allow the Environmental Protection Agency 15 more months to complete a plan to comply with Clean Air Act standards for reducing air pollution in Texas. The court issued its ruling a week before the September 9 deadline for Texas and the EPA to have a regional haze plan in place.

EPA Administrator Scott Pruitt asked the U.S. District Court for the District of Columbia on August 18 to extend the deadline to December 31, 2018, so that the agency could decide whether to accept a state regional haze plan or to impose a federal plan for Texas. The agency’s Regional Haze Rule requires states to develop plans to clean up pollution and improve air quality at national parks and wilderness areas. If the states fail to act, the EPA will step in with its own plan.

The court’s decision said the EPA has given Texas tremendous leeway in developing a state implementation plan to comply with the rule. And now under Pruitt’s leadership, the EPA wants to let Texas off the hook again in meeting statutory deadlines. Citing “well-founded objections” by environmental groups, the court ruled that the Pruitt EPA “must abide by its obligations to promulgate a federal implementation plan” by the September 9 deadline.

Texas’ coal fired-power plants emit more than 338,853 tons of sulfur dioxide, which creates ground-level smog. Overall, pollution from the plants causes more than 677 deaths and thousands of asthma-related events and hospitalizations each year, with public health costs totaling more than $6.7 billion, according to estimates cited by the Sierra Club.


“The court made the right decision today by smacking down Scott Pruitt’s attempt to make the people of Texas and his home state of Oklahoma wait any longer for a plan to clean up dangerous and ugly air pollution,” Chrissy Mann, a campaign representative with the Sierra Club’s Beyond Coal campaign, said Thursday in a statement. “Dirty Texas coal plants have polluted parks and communities across the region for far too long, and it’s past time for those coal plants to be cleaned up.”

The EPA’s Regional Haze Rule required states to submit their implementation plans to the agency by December 17, 2007 — almost 10 years ago. Texas was one of 34 states that failed to submit a state implementation plan to EPA by the 2007 deadline.

In 2011, after EPA missed a second deadline, the National Parks Conservation Association, Sierra Club, Earthjustice, and several other groups sued the EPA for failing to finalize a Texas haze plan. The groups agreed to several extensions to allow EPA and Texas more time to work through technical analysis and other challenges to develop an effective plan.

“Repeatedly, Texas has been told to clean up its act, yet the state refused to do so,” Stephanie Kodish, director of the National Parks Conservation Association’s Clean Air Program, said Thursday. “For years, EPA was working to develop a federal plan to get the state’s emission under control, and despite the new administration’s effort to abdicate its responsibility to protect the health of citizens and wild spaces in the region, the court said no.”

In its decision, the federal court noted that with only three weeks left before the September 9 deadline, the EPA filed a motion to amend the deadline. It noted the EPA pointed out a “core principle” of the Clean Air Act is “cooperative federalism.” The EPA explained in its August 18 motion that “policy changes legitimately instituted” by the Trump administration “led to a breakthrough in the relationship between EPA and Texas.”


The U.S. District Court for the District of Columbia was not persuaded. “This is not the sort of significant change in circumstance that would warrant relief,” the court said.

Texas has been under the statutory obligation to comply with the Clean Air Act since at least 2007, and the EPA has been working with Texas to meet the requirement for a decade, the court said.

“So there has been quite a period of time during which ‘cooperative federalism’ could take hold,” the court noted. Federal statutes mandate that the federal government must step in if a state’s submissions are late or insufficient, it explained.

The EPA’s request for an extension referred to communication between Pruitt’s EPA and state officials in Texas. The request did not indicate that the state’s plan “is anything other than conceptual at this time, and it does not call for anything to be ‘proposed’ until next March or ‘submitted’ until October 2018,” the court concluded. “These bare bones of a schedule leave the court little assurance that the work will be accomplished.”