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EPA's War on Texas

Floor Speech

Location: Washington, DC

I thank the Speaker for allowing me this time. I am pleased that I can bring up some issues that I think are important.

The title of this is ``The EPA's War on Texas,'' but this is about a lot more than Texas.

I think that most people probably don't realize that a lot of the rules and laws that, especially if they're in business, but even in your own personal life, that seem to touch closest to home, you would think they were done by a vote of this Congress in some form or fashion where we decided that this is good for whatever the rule is for your life or for your business or for the good of our Nation. But, in fact, many of these rules actually come from regulatory agencies. These agencies are given rule-making power, and those rules actually have the power of law.

And so a body of employees of the United States--and a few of them are political appointees, depending on the agency. Some of them are appointed each term by the administration, but most of these people are civil servants who work for civil service and these agencies. There are agencies across this land that take certain sections of our lives and make rules about them--the rule-making authority is given to them by Congress--and the EPA is one of those agencies, the Environmental Protection Agency.

A situation has arisen in Texas which is not only about Texas, but it's about America. The last couple of years I have been talking about the rule of law and the fact that we try to set up a system in this Nation that has basic fairness and that there are certain things that are right and certain things that are wrong. When we do that, we don't expect one group to impose its will upon another group inappropriately; but what has happened to Texas, I would argue, is an overstepping of a regulatory agency.

To talk about this, I'm going to have to start off by giving you--so that you understand it not only affects the lives of Texans, but it directly affects the lives of 13 other States immediately, and potentially every State in this Union.

In the last 4 years we have been having an ongoing debate and discussion, both at committee level and on this floor, about the effect of carbon emissions upon the environment. There has been an ongoing debate as to whether or not there is such a thing as global warming. That term now, because the globe doesn't seem to be warming up very much, has turned to climate change, and also because of some kind of falsely manipulated facts concerning global warming, the term has gone to climate change.

But there are those good-meaning people in this Congress who believe that carbon emissions are the new deadly medicine for this country; and if we don't do away with them, it's going to destroy our ability to live on this planet. Al Gore and others are the lead folks on this, and they think it's very important. That debate has been going on now for 4 to 6 years in this Congress, and an attempt has been made to pass what's called cap-and-trade legislation. In fact, by one vote, I believe it was, cap-and-trade, under the Democratic administration of the last session of Congress, was passed out of this House. Cap-and-trade went nowhere in the Senate, and so it never became law. But its purpose was to cap the emissions and tax folks accordingly. That's very simplified; it's much more complex than that. But basically this Congress, made up of the Senate and the House, rejected as a unit the concept of cap-and-trade.

The Environmental Protection Agency decided that even though pretty much America had spoken that carbon emissions were not something that they wanted to impose harshness upon folks about, they decided, well, we don't care what they want, we want the carbon emissions.

So they, starting in December, I believe, of last year, they started issuing new regulations about carbon emissions. And then they started passing them on through the Clean Air Act to the various States.

Now, I'm telling you this because it's going to have a direct effect on your life. Every Member of Congress here and every person that might be watching this discussion someplace else will see that when you start talking about what is maybe happening in Texas, you have to realize that as you watch the price of gasoline go up at your pump, you have to realize that there can be a direct relationship between what's going on in the market and what happens to the prices for the American consumer.

Here's what has happened in Texas. When they created the Clean Air Act, they gave the EPA the ability to promulgate rules and standards for air quality. But the act specifically says that the local authority and the States have a better means of policing up this act than the Federal Government. So the implementation of the rules, of the standards set by EPA, will be done by the States rather than the Federal Government, and each State is to come up with a plan.

And that bill was passed, I believe, in 1974 or 1976, something like that. Anyway, it was in the 1970s, and it had nothing to do with carbon. It had to do with noxious gasses and other really bad things that were getting into our air and reducing the air quality, and the standards were important.

And each State had the ability to structure their permitting system to fit the needs of their State and then submit that permitting system to the EPA for approval. And the EPA would say, Yeah, I think that's a good system, or, No, we don't think it is a good system.

One of the things that happened when they put together this Clean Air Act and set these emission standards was what they call a grandfather clause. And companies that were already in existence long before the time of the passing of this act were grandfathered out of the act. So basically some of these big refineries, electricity power plants, manufacturing facilities, automobile plants had been around long enough that they would be grandfathered in some certain areas on these emission standards and the requirement for permitting under the law. That was just the way this act was written.

So Texas had a lot of--Texas is the largest energy producing and energy manufacturing State in the United States and has the largest refinery capacity in the United States. I used to be able to name the refineries in Texas, but I'm afraid I'd fall way short today. But needless to say, there are a multitude of refineries and chemical manufacturing facilities just in the Houston area alone and in Corpus Christ and in other parts of our State, both great, gigantic refineries and midsize and small refineries and manufacturing facilities. And they're all dealing with, basically, the petrochemical industry. The oil and gas industry is the base product that they are refining, manufacturing things from and so forth.

So in Texas, looking at what it would take not only to clean up the industries that would fall under the act, which would be the newly permitted industries, but also would start to police up the grandfathered--the folks that could get out under a grandfather clause--police up those facilities, too.

The people in Texas got together and they came up with a concept called flex permitting, and here's the way it works:

Let's just take a refinery. Baytown has a gigantic refinery that I have visited. They passed a rule that says there's lots of sources of emissions from some form or fashion inside of a refinery--comes from a little thing the size of a faucet to great big smoke stacks can be emitting something into the air. So what we want them to do is take that site and reduce their emissions down to the standard that is required by EPA. And so we're going to let them, so long as their site reduces emissions and meets the goals set up by the Clean Air Act--not every individual place that emits will have to have a permit, but just one permit to cover the whole site. And then as the site reduces its emissions, it all falls under one permit, and it's called a flex permit. So it allows the refinery to go in, fix this first and then fix this second and this third and this fourth; and find the big bad ones first and fix those, and then work down to fix the plant.

And by the way, there is a recent letter from the EPA saying that Texas has met and exceeded the standards under this flex permitting.

But then along comes greenhouse gasses, and they passed the rule about carbon emissions. And they say, Now you have to put that under your permitting systems.

And the other 13 States plus Texas were kind of taken aback by this. But Texas said, No way. We don't think you should be imposing carbon emission standards on

us when the Congress refused to impose these standards. And they, as I understand it, started contesting this in the court.

So here's where the rub comes in. The EPA then announces to Texas, We don't approve your flexible permitting system, and every industry in your State is now out of compliance, and you are going to have to have a new permitting system, and we're taking over how that's going to work--even though the act says Texas, or any State, shall be people who administer there.

Now, you may say, Well, that's not too bad. There's a kicker here. Texas created this permitting system in 1994, and since that time, they have been asking EPA to tell them yes or no. Do you approve it or you don't approve it? And tentatively, they sort of said, Well, we'll approve it, but we're going to study it and look at it.

Fifteen years this flexible permitting system has been in place.

And now as the dispute over carbon emissions comes along, to batter Texas into compliance, they have depermitted the whole State. They've announced they depermitted the whole State. Now, the State went to court and at least got a stay on that temporarily.

But think about that. If you had something that you were doing that the government said, Now we'll have to approve that to do it, and you say, Fine, here's what we're doing; would you please approve it or disapprove it, and they waited 15 years to do it, and then when they announced they're disapproving it they say, Oh, by the way, we plan to go back and fine you for the last 15 years for carbon emissions--that's what I understand it's going to be--something is wrong with this picture.

I'm joined by my good friend and fellow judge, Louie Gohmert from Texas, and I'd like to hear his take on this. And if I got anything wrong, he can tell me about it.


And you know, this flex permit's whole purpose was to use common sense and meet the environmental standards without shutting down facilities and losing jobs. That's why they came up with the flex permit. It allowed them, if they met the standards, to do the repairs and fixes in integral parts and not stop until the whole thing is in compliance and have a permit for every faucet in the building that needs to be adjusted or fixed. But rather let them fix the problem as it goes along.

And we are the model for meeting the air quality act, the model. I mean most States aren't in as good of compliance as the State of Texas under the flex permit system. And yet exactly as my colleague has pointed out, because of this carbon emissions dictatorship and because they're saying you will do as I say or else, the position that's being taken by this czar from the EPA, Texans are sort of the kind of people that just bow up when people say that like that, so we said ``no,'' and we are in this fight. And I think we are in the fight to win. Because I think anybody would say it would be totally unfair for EPA to sit and ponder their duty to approve a plan and spend 15 years looking at it and not do anything with it, and it's meeting its standards, and all of a sudden, bingo, because of this they're taking over our permitting.

I am very pleased to be joined by a gentleman that is probably the most knowledgeable man in Congress about the workings of this particular act, Mr. Joe Barton, former chairman of the Energy and Commerce Committee and a ranking member of the Energy and Commerce Committee, and now our Texas expert on all things energy and all things environmental. Mr. Barton, I yield you so much time as you choose to use.


I thank you for coming here. Joe Barton really has been dedicating his life to these types of issues for his long tenure in Congress.

But I always wonder if sometimes people back home are sitting around saying so what does this mean to me. Well, I am speculating, okay, I am only speculating, but let me say something that I think everybody agrees.

The last time we had a spike in the price of gasoline, it started, I think, everybody points to how it started, it started when they had a refinery fire in Illinois.

And all of a sudden, the speculators said, whoa, we've got to reduce refining capacity in the oil and gas industry right now. They shut down about half that plant in Illinois. And all of a sudden, we started to see the futures start to move on oil. And that was the kickoff of $5 gasoline in some parts of the country. Why? Because the speculators say, well, if refinery capacity is reduced, gasoline is going to be in more short supply. Futures, I can buy now, sell later. I can make money off this commodity. And the price started up. Other things happened then, speculators, all of that can be talked about. But it started. Everybody says that there was a fear of reduced refining capacity because right about that same time we had the hurricanes, which reduced refining capacity over in New Orleans.

Now, what's happened since this whole thing started right here which could reduce--remember that Texas has the largest amount of refineries anywhere in the United States. Joe, Mr. Barton, if I could ask you, what percentage of the refining is in Texas? It's a pretty good percentage of the national refining. Do you know?

Mr. BARTON of Texas. About two-thirds.

Mr. CARTER. Two-thirds. Two-thirds of the refining capacity is in Texas. And all of a sudden as this dispute between EPA and Texas rises its ugly head, and we see that the EPA is taking over this permitting, and industry itself is saying, look, we just want to know what to do. We are at a loss of what to do. And we are willing to work. Industry is saying to them, tell us what the new permit is. Tell us how to do this. What's going to happen? And there's a lawsuit pending, and all this stuff. Now the speculators, I think, are starting to say, oh, the price may be going up again. You tell me. Has the price of gasoline gone up in the last 3 months? Does it look like it's going to continue? I'm not saying this is the cause, but I think I can argue it's one of them.

What Texas does with industry is the perfect example of government and industry working to fix a problem together. That's what we thought we were going to get from the Obama administration when he started out. Instead, we have government working against industry in this present administration, and because of that we start to see it at every level. And by the way, if you think it's just in this particular area, just a little fact: Last year, the Federal Government issued a total of 3,316 new rules and regulations, an average of 13 rules a day. Seventy-eight of the new rules last year were major rules. A major rule is a rule that will result in an annual effect on the economy of $100 million or more, a major increase in cost or prices for consumers, or significant adverse effect to the economy. And we had, just last year, 78 of those rules, plus an additional 3,000-plus more rules that were passed.

I bring this all up, and I will yield to my friend in just a moment, because I want to talk about one of the solutions that we are looking at. It's a little known thing that is now coming to the forefront. It's called the Congressional Review Act. Back in 1996 under the Contract With America Advancement Act of 1996, as part of the Small Business Regulatory Enforcement Fairness Act, they created the Congressional Review Act, this is Public Policy Law PL 104-121. It allows the Congress to review every new Federal regulation issued by the government agencies and by passage of a joint resolution overrule that regulation. The process is the Federal agencies shall--note that word, that means they have to, although I don't think they all do--submit to each House of Congress and to the Comptroller General a comprehensive report on any major proposed rule. Congress has 60--that's legislative--days to pass a joint resolution of disapproval of any rule. The Senate must--must--vote on the CRA resolution of disapproval if 30 Members of the Senate approve having a vote. Only 30 Members are necessary to have a vote in the Senate.

So this is a tool where we can, in our small way, be a part of this fight on behalf of Texas. And we will be following this procedure that is set out in this act, and we will be attempting to have, and will have, a vote on this House floor on this rule. And I think when people hear the ``taint fair'' factor in this particular rule, it's going to be a strong vote.

I now yield the time to Mr. Gohmert that he wishes to take.


Mr. CARTER. Reclaiming my time, I believe the Governor pointed out that of the million new jobs created in America in the last 5 years, 3 years, something like that, 850,000 of them were created in Texas. We are a dynamic economy; and we are a dynamic economy because we have had the foresight of all working together to make jobs, to improve the environment by using logical, commonsense methods of doing this regulation.

Mr. BARTON of Texas. If the gentleman would yield, common sense, we are beginning the redistributing process now, and the State of Texas is going to gain four additional congressional seats which means our population between 2000 and 2010 has increased approximately 3 million people. My question to you: Would people be coming to Texas if the quality of life was decreasing, if the environmental quality was decreasing, or would they be coming to Texas because it is a better place to live and it has economic opportunity?

Mr. CARTER. Reclaiming my time, that is exactly what is going on, Mr. Barton. They are all indications. You can stop your new neighbors and ask them why they came, and they will tell you because Texas is where things are happening. It is where you have a tax structure where we can prosper in business, and yet it is a fair tax structure.

You are doing things right so that rather than throwing up roadblocks to new businesses, you are throwing up enhancements to make it easier for new businesses to come and prosper. Not the big monstrous refineries, the little bitty mom-and-pops. Some of those mom-and-pops are a chain of mom-and-pop stores that are all over the State and soon to be all over the Nation. Texas makes sure that we follow basic rules and we don't turn people loose, but we come up with methods where government and industry work together to solve problems.

Mr. BARTON of Texas. If the gentleman would yield for another question, name a State that has one of the more rigid, restrictive, so-called protective environmental regulatory schemes in the Nation?

Mr. CARTER. California.

Mr. BARTON of Texas. The gentleman is correct.

Name the State that has the largest net out-migration from its State to Texas?

Mr. CARTER. California.

Mr. BARTON of Texas. The gentleman is correct again.

So here you have a State that is noted for its State regulatory protection regulations at the State level; and yet that State has one area, the Los Angeles basin, that has been in the worst category for nonattainment for two decades. I wish we had some of our friends from the great State of California on the floor, and they could correct me if I'm wrong, but that particular region has not exhibited any measurable increase in air quality, in spite of the most rigid regulations, and that State has exhibited the largest net out-migration of population to Texas.

I don't think that is serendipity. It is because we have strong environmental protection in Texas. Our air quality is improving. The quality of life is improving; but because of our flexible approach, you still can create jobs in Texas, and there are lots of folks around the country who want to take part in that and become part of that.

Mr. CARTER. As we fight this fight, this fight is not just an oil and gas fight. This is going to affect power plants around the country that are operating under natural gas, coal, oil, any kind of hydrocarbon. This is just the tip of the iceberg of what is going to happen in this arbitrary decision by the EPA against the will of the Congress and the American people.

We have had 2 years of doing things against the desired will of the American people, and the American people spoke in the last election. It is time for us to make commonsense decisions and do what makes sense. It makes no sense to let people operate under a system that works for 15 years and then come in and say implement this immediately. We are not giving you 3 years to implement it. You will do it now. And when we said, no, wait a minute, let's play by the rules, they say, Fine. We never did get around to giving you the official letter approving your flex permit system, so here is your official letter. It is denied. Because you are not doing anything about it, we are going to come in and take over your permitting system.

I don't think the average American thinks that is the way anybody ought to operate. It is not the way that I think anybody ought to operate. I would be surprised if it is not the way that a majority of the people in this House think these agencies ought to operate.

You know, we always hear the idiot, crazy things and they come out in the newspaper and you will see some of them. But just to let you know it is not just in this industry where new regulations are going to be going strange; there is a proposed regulation that is going to be affecting Texas for sure and a whole lot of other States in this unions: they want to regulate dust.

So, if you've got a dusty road, driving up to your ranch house or to your personal house, they want to come in and regulate the dust that kicks up in the summertime, when it's hot, behind your car.

The solution they came up with for this in California--California, the place where they have the drought in the Central Valley, a shortage of water--is to water down your road every day. Take the water you need for the plants and for people, and squirt it on the road to keep dust from going up in the air.

Like Mr. Gohmert said, we used to laugh and say, someday, the government is going to regulate the air we breathe and the food we eat. Lo and behold, they are. It's going on right now.

So this is just the beginning. As Joe said, this is just the beginning of bringing this to the attention of the American people--this regulation, what they're doing to Texas--and of standing up for our fellow Texans, who are standing up for our State's compliance record and standing up for our State's ability to create an environment where people can have a job and where they can pay their own way--and good industry jobs. We're standing up for those people. We're making sure that we don't lose those great jobs in Texas because of this regulatory agency.

This is only the beginning of the fight. There is more to come. We're going to fight, not only this regulation, but many, many more. We'll be bringing them up to let the American people see that the regulators can be dictators.

I just want to correct one thing Mr. Gohmert said. We're no longer having a moratorium on drilling. I was told today by one of my constituents that we're having a permanentorium.

They said, Oh, yes. Where the moratorium's lifted, you just have to get a permit.

So far, there haven't been any permits.


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