EPA Tries to Cover Its Tracks in Texas by Sending 17 Years of History Down the Memory Hole

Background: The Regional Haze rule is a Clean Air Act regulation whose purpose is to improve the view at National Parks. Because it is an aesthetic rule, and not a public health regulation, Congress intended for States to be the primary decision-maker. In spite of State primacy under the program, EPA since 2009 has imposed federal Regional Haze plans on 15 States, at a cost of more than $5 billion, in order to achieve an “improvement” in visibility that is literally imperceptible. For a primer on the Rule, see my congressional testimony from March.

This week, EPA proposed a “clarification” of its Regional Haze rule that ranks among the agency’s all-time most mendacious issuances.

Normally, a “clarification” of an existing regulatory text is performed through interpretation. In this case, however, EPA says its clarification necessitates amendment of the underlying rule. This is the first big red flag—the agency’s Kafkaesque claim that the Regional Haze rule must be re-written in order to achieve its original meaning.

The second big red flag is the agency’s assertion that its “clarification” reflects the agency’s “long standing interpretation.” The agency helpfully adds a footnote so as to demonstrate just how long standing is its interpretation. And the footnote cites a January 5, 2016 federal Regional Haze plan imposed on Texas (more on that below). So the agency’s “long standing interpretation” is about five months old.  For reference, consider that the Regional Haze rule was published in 1999.  In sum, the agency is asserting that a “long-standing” interpretation is one that has existed for five months out of 17 years.

The third, and biggest, red flag is the substance of the amendment itself, which utterly belies EPA’s contention that its proposal merely reflects a “long standing interpretation” and therefore “do[es] not create new requirements for States.”  As I explain below, the proposal completely contradicts the plain meaning of the original rule as it has been understood by EPA and the states for 17 years.

At issue is how states must collaborate to control their cross-border emissions. The Regional Haze rule requires each state to achieve “Reasonable Progress” every ten years towards a (non-binding) goal of pristine air quality in 2064 at each National Park or Wilderness Area within its borders. Of course, air pollution does not stop at borders. As such, it’s essential for a state with a National Park to coordinate with upwind states whose emissions invariably effect its (i.e., the downwind state’s) compliance.

To this end, the plain terms of the Regional Haze rule require that upwind and downwind states collaborate in order to meet the downwind state’s Reasonable Progress goal.  Section 308(d)(1) of the regulation requires that “For each [National Park or Wilderness Area] located within the State, the State must establish goals … that provide for reasonable progress towards achieving natural visibility conditions.” And Section 308(d)(3)(ii) requires that “Where other States cause or contribute to impairment in a [downwind State’s National Park or Wilderness Area], the State must demonstrate that it has included in its implementation plan all measures necessary to obtain its share of the emission reductions needed to meet the progress goal for the area.” Since 1999, all states and the EPA have interpreted these provisions to require a sequential process. First, downwind states establish Reasonable Progress goals for their own National Parks, and then they consult with upwind States to ensure that they (the upwind states) achieve their fair share towards meeting these Reasonable Progress goals.

EPA’s proposed “clarification” would sweep aside this long understanding shared by both states and the agency itself. That is, EPA’s fake “long standing” interpretation directly contradicts EPA’s actual long standing interpretation.

To be precise, EPA’s “clarification” would forbid upwind states from relying on downwind states’ Reasonable Progress goals to determine their (the upwind states’) contribution to visibility impairment in the downwind states’ National Parks. Instead, EPA wants upwind states to plan for the contingency that the EPA, at some future date, would reject the downwind state’s Reasonable Progress goals. To guard against this unknowable possibility, the EPA’s “clarified” rules would require upwind states to conduct their own Reasonable Progress analysis of the downwind state’s National Parks.

EPA’s Regional Haze “clarification” is remarkably stupid, for a host of reasons.

First, the agency is lying through its teeth when it asserts that its “clarified” rule “do[es] not create new requirements for States.” To date, upwind states didn’t have to perform a Reasonable Progress analysis of National Parks outside their borders. Now they do. Therefore, the revised rule creates new requirements. Period. Again, the agency is lying like a thief.

Second, EPA’s amended Regional Haze rule is supposed to “clarify,” but it invites confusion. Under the new rule, upwind states must somehow predict whether a downwind state’s Reasonable Progress goals are “approvable” by the EPA in the future. Because upwind states are not psychic, they will be incapable of knowing whether a downwind state’s plan is approvable. The same holds true for the downwind state. Obviously, this introduces uncertainty into coordination between the two states.  Neither party would know which version (or if either version) is “approvable” by the EPA. In this manner, EPA rendered uncertain what had been certain.

Third, the revised regulation encourages infighting among the states. Under the old rules, both upwind and downwind states worked towards the same goal—the downwind state’s Reasonable Progress goal. Under the new rules, both states will bring competing goals to the negotiating table.

In sum, the revised Regional Haze rule is a power grab. In effect, the EPA is giving itself an amorphous, ill-defined authority to reject state plans and impose federal plans in their stead.

Although the agency’s desire for evermore power at the expense of states explains why the agency amended the Regional Haze rule, it does not explain why EPA is insisting, with evident contempt for reality, that its “clarification” reflects a “long standing interpretation” that in no way “create new requirements for States.” After all, the agency is empowered to amend the Regional Haze rule, as long as it does so through notice and comment rulemaking. So why is the agency pretending that its revision is nothing new?

The unfortunate answer is that the agency is trying to screw over Texas with an ex post facto rulemaking. Last January, EPA rejected Texas’s Regional Haze plan based in part on the same “clarification” that the agency set forth in this week’s Regional Haze rule revision. Specifically, EPA determined that Texas had failed to perform a Reasonable Progress analysis for Wilderness Area in Oklahoma. Of course, Texas—like all other states—had crafted its plan to address its contribution to visibility impairment in a downwind state (i.e., Oklahoma) based on downwind state’s Reasonable Progress goals. In that rulemaking, EPA claimed that Texas’s plan ran afoul of its “long standing” interpretation (an interpretation that was issued for the first time in rejecting Texas’s plan).

In light of this recent history, EPA was forced into making the patently false claim that this week’s Regional Haze revision reflects a “long standing” interpretation in order to perpetuate a lie. Having advanced this “long standing” interpretation five months ago in the course of imposing a federal plan on Texas, the agency had to maintain its duplicity this week when it rolled out revisions to the Regional Haze rule. If the agency conceded that its “clarification” amounts to a novel construction of the rules, then it would effectively admit to lying five months ago when it imposed a federal plan on Texas.

The upshot is that EPA had to lie today, in order to protect its lie from five months ago. Such is the sausage making in Obama’s EPA.