Energy Firms Score Another Free Pass as Texas Seeks to Duck More EPA Rules

In 2015, the U.S. Environmental Protection Agency issued the Startup, Shutdown and Malfunction Rule (SSM). The rule requires industrial facilities in Texas and 35 other states to follow specific air pollution guidelines when starting and shutting down plants or when a malfunction occurs. Previously, plants were able to leverage a loophole to release unlimited pollutants during startups, shutdowns and malfunctions without legal penalties under the Clean Air Act.  

States had 18 months to submit their plans to comply with the SSM rule, but within that time period, Donald Trump became U.S. president, and some states — including Texas — still had not filed their plans. In January of this year, the U.S. EPA began a process to roll back the SSM rule for Texas. On April 7, the Sierra Club and several other advocacy groups filed litigation to stop the EPA from reopening the SSM loophole in Texas. 

States including Texas, as well as industry groups, previously challenged the SSM rule. That case was headed for oral arguments in the D.C. Circuit Court in 2017 when the Trump administration asked for a stay so its attorneys could buy time to study the rule. Texas is the first state the EPA has carved out of the original SSM rule, said Andrea Issod, senior staff attorney with Sierra Club’s Environmental Law Program. 

Why Texas?

There are a couple of things going on here: the rollback of environmental protections by the Trump administration and business-as-usual in Texas.

The current administration has rolled back several key environmental protections. These shifts in policy affected the Clean Power Plan to reduce emissions from the U.S. energy sector, as well as many others that addressed environmental issues including clean air, clean water and habitat restoration.

The SSM rule is another offensive against the Clean Air Act in a long line of this White House’s attacks. As with many of the Trump administration’s rollbacks, the arguments for rescinding these regulations are generally not clearly laid out and lack legal reasonableness.

Case in point: As of March 14, the administration has only won legal attempts at environmental rollbacks in a handful of cases. When compared with previous presidents, the success rate is abysmal: 5 percent during this administration compared to an overall 69 percent success rate of President Trump’s predecessors.

The Lone Star State continues to chip away at EPA rules

Further, fighting environmental regulation is par for the course in Texas. For over a decade, I worked in the state as an advocate for clean air, energy, and water policy. The only change we saw after November 2016 was that Texas would be on the same side as the decision-makers in Washington.

During the Barack Obama administration, Texas went on a lawsuit rampage, and 27 of the 49 cases focused on objections to environmental regulations. Texas won six of those 27 cases. Four of those wins were in the 5th Circuit Court of Appeals, a notoriously conservative court where Texas prefers to have its cases heard and where the state is hoping the SSM loophole case will be heard, as opposed to the D.C. Circuit, where environmental litigation stands a fairer chance, explained Issod of the Sierra Club.

Yes, we’re in the middle of a crisis, but lax EPA rules come at a bad time

The Trump administration has been on a roll rescinding environmental rules since coming into office. But the timing of the litigation and rule reversals are particularly cruel considering the climate risks U.S. citizens face. During extreme weather events, such as hurricanes and floods, industrial facilities often must be shut down.

But before the deployment of the SSM rule, the loophole allowed industrial facilities to release unlimited pollutants into the air. Typically those who live near such facilities already suffer from poor air quality, and levels of pollution could be 10 times the amount normally allowed. The Texas state government’s resistance to the SSM rule meant that vulnerable, low-income communities located near refineries in Houston were made more so in the aftermath of Hurricane Harvey, to use just one example. 

Many people in those communities are already suffering from pollution-related illnesses, such as asthma, making them more at risk to complications from COVID-19. Allowing this loophole would exacerbate an already serious problem. Add that to the fact the hurricane season starts in little over a month, and meteorologists are predicting a more active than normal hurricane season this year. With no clear indication of how long the pandemic will last, a busy hurricane season need not be worsened by a loophole that allows more air pollution.

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