Environmental Defense Sues TCEQ To Halt Approval Of New Coal-fired Power Plants

In a move to block state regulators from approving a rash of new coal-fired power plants without properly considering the environmental impacts, Environmental Defense has sued the Texas Commission on Environmental Quality (TCEQ), alleging that the agency has not complied with state law including its own rules.

In its suit, filed October 17 in Travis County District Court, the Texas office of the national environmental group asks for a temporary or permanent injunction to require TCEQ to follow its own rules and authorizing statutes in its permitting process.

The power plants became an issue in this year’s elections when Governor Rick Perry issued an executive order fast-tracking the permitting process and then attended a news conference at which TXU, the state’s largest utility, announced plans to build 11 of the new coal-fired units. The new TXU plants would more than double the company’s annual emissions of carbon dioxide, the leading cause of global warming, from 55 million tons per year to 133 million tons. Perry’s fast-tracking of the permits undermines the ability of the TCEQ to conduct the fair review of the plants required by law.

Any entity seeking to build a new power plant must apply for an air permit from TCEQ and demonstrate that the proposed plant employs “best available control technology” (BACT). BACT is an emissions limitation that requires permit applicants to achieve the maximum degree of pollutant reduction that is achievable from any available production process or technique for controlling air pollution, while taking into account “energy, environmental and economic impacts.”

In its suit, Environmental Defense claims that the TCEQ violated its own rules and authorizing statutes when it did not require applicants for the power plant permits to consider coal-gasification (integrated gasification combined cycle, or IGCC) technology when conducting the required BACT analysis. IGCC technology is a much cleaner alternative for the production of electricity from coal than the older style pulverized coal plants proposed to be constructed in Texas. The suit claims that the applicants are legally required to consider all viable processes, including IGCC, in determining appropriate pollutant emissions limits for their projects. The lawsuit also claims that TCEQ, in violation of legal requirements, recently deleted a definition of BACT from the state regulations.

The suit also alleges that TCEQ violated Texas law by not requiring permit applicants to evaluate the potential cumulative impact their plants may have on the air quality of downwind areas such as Austin or the Dallas/Fort Worth Metroplex, which are already under the gun from the federal Environmental Protection Agency to clean up their air quality. At least one analysis suggests that these and other Texas cities may be negatively impacted by pollutants blowing in from the proposed new power plants, but the TCEQ has not considered these impacts in the coal plant permitting process to date. In many cases, federal law requires that the addition of air pollutants from new sources like the proposed power plants would have to be offset by reductions in emissions from other area sources, including motor vehicles and other businesses.

“The inadequate evaluation of these proposed plants is a systemic problem at TCEQ,” explained Jim Marston, Environmental Defense’s regional director, “and this lawsuit is clearly the most efficient way to approach it. It’s time to find out if these written statutes are really the law or if they’re just guidelines to be ignored when convenient. The health of our families, the economic impact on Texas communities, and the climate of the entire planet are at stake. These laws were passed for a reason, and it’s time to enforce them.”

“We’ll be releasing a report next week outlining a number of quicker, cheaper, cleaner ways to address any short-term electric power capacity concerns state regulators might have, Marston said.”There is absolutely no justification for this rush to build a bunch of dirty plants that we don’t need and that will almost certainly have to be retrofitted to reduce their emissions in the very near future at a staggering cost to ratepayers.”