Sierra Club Sues EPA Over Texas’ Shoddy Haze Plan

Fayette Power Project near La Grange, which produces 72% of Austin Energy’s carbon emissions but only generates 13% of AE’s total power (Courtesy of the Lower Colorado River Authority)

Today, Sierra Club announced it is suing the Environmental Protection Agency for failing to enforce higher air quality standards for Texas and seven other states.

The suit would require stricter standards for Texas’ worst polluting plants in the nation, including Austin Energy’s own Fayette Power Project in La Grange – the 10th worst polluter on that list.

Every 10 years, states are required to submit plans to the EPA to mitigate the health risks from haze under the federal Regional Haze Plan. The Texas Commission on Environmental Quality (TCEQ) submitted a plan a decade ago, which the EPA only got around to reviewing this year, ultimately rejecting it. Instead, the EPA required all Texas coal plants built before 1977 to install scrubbers, which limit sulfur dioxide, a key component of regional haze.

Fayette got a jump on other plants installing scrubbers 10 years ago, in anticipation that the EPA would eventually require them. But sulfur dioxide is only one ingredient in regional haze; another major contributor is nitrogen oxide emissions, and Fayette has an outdated system to curb those emissions. Since a decade has passed, TCEQ has now submitted a new plan to the EPA which hasn’t been reviewed yet.

Sierra Club, having reviewed the new TCEQ plan, finds it as inadequate as the decade-old Texas plan. It doesn’t require controls for nitrogen oxide and “really is a ‘do nothing’ plan,” says Josh Smith, an attorney for Sierra Club. But, since EPA took 10 years to issue a rejection of the last plan and has already missed its deadline to accept or reject the new TCEQ plan, it follows that a rejection may be years down the road. That’s why Sierra Club, along with the Environmental Integrity Project and the National Parks Conservation Association, have filed a lawsuit asking the EPA to reject the haze mitigation plan and instead compel all emitting plants in Texas and seven other states to comply with Clean Air Act standards. For Fayette, that would mean updating their nitrogen oxide controls, increasing the overall operating costs.

Sierra Club has had success suing the EPA – in fact, on Wednesday, the EPA announced that they’re going to review its federal nitrogen oxide standards in response to a 2022 lawsuit from Sierra Club.

These multiple lawsuits are necessary because, as Smith says, “Texas has been notoriously litigious, especially around environmental compliance.” When the EPA started requiring scrubbers for all Texas plants this year, TCEQ and other Texas state agencies filed their own petition with the 5th U.S. Circuit Court of Appeals, claiming that the EPA exceeded its authority. Smith says what the new Sierra Club suit is asking Texas to implement is already on the books in other states, and “will have a broader impact on not just power plants, not just coal plants, but also other kinds of facilities, refineries, maybe cement kilns.”

As for how the suit would affect Fayette, the cost of installing controls specific to nitrogen oxide could be $100 million per unit so Fayette could be looking at $200 million to comply with new nitrogen oxide standards. “I wouldn’t want to say definitively one way or another,” Smith says, “but I think it makes it much more economically attractive to retire those units or otherwise try to get out of them. I know that Austin Energy has been trying to do that for the last couple of years. But that kind of investment, both for LCRA and Austin Energy should be sort of a break point.” LCRA declined to discuss with the Chronicle but added that they are filing a response by the Aug. 2 deadline.

More broadly, the suit aims to put pressure on the EPA to start implementing these controls ASAP: “What we want to try to avoid is the massive delay that occurred … such that we are more than a decade past when the plans should have been finalized and implemented and we’re only now close to seeing the light at the end of the tunnel,” says Smith. Sierra Club expects that the EPA probably won’t be able to fully enforce haze regulations in all eight states Sierra Club is suing on behalf of, so Texas is their number one priority: “Texas is far and away the biggest emitter of both sulfur dioxide and nitrogen oxides.”

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