Texas faces real harm from EPA’s Invisible Haze rule

William Yeatman

Texas recently got a temporary reprieve from an ineffective, staggeringly costly mandate imposed by the U.S. Environmental Protection Agency. The U.S. Court of Appeals for the Fifth Circuit late last month put a halt on the EPA’s new air visibility plan rule.

Texas went to court after EPA rejected the state’s own air visibility improvement plan and imposed a federal plan in its stead. The state’s utilities were facing the prospect of having to commit billions of dollars in unnecessary investments before the legal challenge ran its course. By the EPA’s own admission, its plan would cost $2 billion more than the state’s plan. Thus, Texas “demonstrated a strong likelihood of success on the merits, because they are likely to suffer irreparable injury,” the judge explained.

It’s a pity the state had to fight the federal government over a rule that costs billions to achieve nothing. At issue is an air visibility plan that doesn’t make the air visibly better. The agency projects its preferred plan will improve the view over Texas’s plan - at most - by an amount well short of what it claims is even perceptible. The EPA uses a so-called “deciview” metric to measure air visibility improvement. According to the EPA, one deciview is the minimum possible change in visibility perceptible to human beings. Yet the agency concedes that its federal plan would improve visibility over the Texas plan by less than half a deciview.

Worse, the costs could lead to rolling blackouts. The federal rule would impose $2 billion in controls across 14 Texas coal-fired power plants. However, with natural gas prices at historic lows, most utilities will choose to retire generating units rather than spend billions on compliance. In an affidavit to federal court, Brian Lloyd, executive director of the Texas Public Utility Commission, said the expected loss in generating capacity due to the federal visibility rule threatens to degrade the electric grid and trigger “rotating outages.”

Texas isn’t alone. The EPA has also imposed federal visibility “improvement” plans on 14 other states. All told, these federal plans would cost about $5 billion, yet not one of them would achieve a perceptible improvement in visibility.

Why would the EPA impose such a costly regulation for an invisible improvement in visibility? The aim is to reduce coal-generated energy – not just with the haze rule but with other regulatory actions. In 2012, for example, the EPA put forward its Mercury and Air Toxics Standards, which by the agency’s own estimate, imposes $10 billion in annual compliance costs on the coal power sector. The EPA’s justification for this ultra-expensive regulation was to protect any subsistence fisherwomen who might consume more than 200 pounds of self-caught fish from the most polluted bodies of inland fresh water. Despite this dubious explanation, the mercury rule is projected to force the retirement of 17 percent of all coal-fired power plants in the U.S.

Congress should pass a law stipulating that states, not the EPA, are the primary decision makers under the Regional Haze program and that courts should defer to states. The next U.S. President can make a difference, too, by issuing an executive order subjecting new regulations to greater White House review and scrutiny.

Meanwhile, the Fifth Circuit ruling is only a temporary hold, pending the court’s review of the dispute itself. The people of Texas and other regulated states must await a decision on their future access to affordable energy, all for the sake of visibility rules that won’t visibly help Texas or any other state.

William Yeatman is a senior fellow at the Competitive Enterprise Institute in Washington, D.C.

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