EPA Would Prefer Settlement in Texas Haze Case, Experts Say

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By Paul Stinson

Aug. 19 — The Environmental Protection Agency would rather work toward a settlement in the Texas haze rule than absorb an unpalatable precedent, an environmental attorney told Bloomberg BNA.

Talks between the federal agency and Texas are under way following the joint Aug. 17 motion to accommodate a 90-day stay of proceedings in order to allow settlement discussions through Nov. 28 ( Texas v. EPA, 5th Cir., No. 16-60118, 8/17/16 .

The court Aug. 19 issued a notice saying the motion was granted.

“I can imagine the EPA saying: ‘We really don’t want any further proceedings in this … it’s not going to end well,’ said Seth Jaffe, an environmental and administrative attorney at Foley Hoag LLP in Boston.

Speaking by phone from Boston, Jaffe took stock of the July stay of the EPA's federal plan for the Texas regional haze rule by the U.S. Court of Appeals for the Fifth Circuit.

“Certainly looked to me like it’s pretty clear what the final decision is going to be,” he said.

EPA Precedent Concerns?

“There are a couple of issues that they could be worried about precedential effect on,” Jaffe said.

A representative of the Texas Association of Business told Bloomberg BNA he echoed Jaffe’s assessment of EPA concerns following the Fifth Circuit decision.

“I would agree with the precedent issue,” said Stephen Minick, the association's vice president of governmental affairs.

“A stay is not very common, and usually signals a very strong argument on behalf of petitioners,” said Minick in an Aug. 19 e-mail.

“I have to assume that EPA is concerned that the legal or procedural basis for the regional haze stay does not become a precedent that other jurisdictions (other federal appeal courts, etc.) adopt, thereby expanding its implications beyond Texas and Oklahoma or the 5th Circuit,” he said.

“It could be that EPA may simply feel that a fight over an issue related to these two states and what some would argue are some small technical differences between the state and federal plan is just not worth the risk,” Minick said.

Asked to identify particular areas of EPA concern, Jaffe specified the federal agency would not want any further discussion of the source specific analysis issue and the time frame as it relates to what’s covered by the rule.

“Also, if their ultimate objective is to force the closure of coal-fired power plants, it is not as if that objective is not also the goal of other, higher-profile EPA regulatory initiatives,” said TAB’s Minick.

Responding to the filing, a Texas representative of the Sierra Club said the organization “has always been open” to resolving disputes outside of litigation, saying it had a “proud” history of settlements “achieved” with power and coal entities.

“Sierra Club has of course reserved its right to continue defending EPA’s haze plan in court if it is not satisfied that a settlement would achieve positive results to clean up pollution from coal-fired power plants in Texas,” Chrissy Mann, senior organizing representative for the Sierra Club’s Beyond Coal campaign, said in an Aug. 17 statement.

Offering up reasons as to why Texas would want to come to the table, Jaffe stressed the presence of long-term incentives for finding a space for settlement even if the federal agency seemed on course for legal defeat.

“You know, the EPA still has a lot of authority,” Jaffe said. “This rule may not have passed muster but they could still be worried that EPA would go back to the drawing board and do something that would satisfy the court but that would still be onerous as far as Texas were concerned.”

“So, even though they won pretty big, there’s certainly reason enough for them to come to the table and talk, so I can understand motivations for both,” he said.

Texas and federal officials highlighted the fruits of cooperation between Texas and the Environmental Protection Agency during a recent environmental conference in Austin, pointing to the progress made in easing a backlog of greenhouse gas emissions permits.

Representatives for the Texas Attorney General’s office and energy companies told Bloomberg BNA they had no comment.

To contact the reporter on this story: Paul Stinson in Austin, Texas, at pstinson@bna.com.

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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