ATTORNEY GENERAL OF TEXAS 

August 19, 2010 

GREG ABBOTT 

Hon . Lisa Jackson 

Administrator 

U .S . Environmental Protection Agency 

1200 Pennsylvania Avenue, '.V .W . 

VJashington, DC 20460 

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~010 AUG 20 AM 6 :20 

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; Application for a Stay of the Tailoring Rule, 75 Fed. Reg. 31,514 (June 3, 2010) 

Dear Administrator Jackson : 

The State of Texas hereby requests that you stay the Prevention of Significant Deterioration and 

Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg . 31,514 (June 3, 2010) ("Tailoring Rule") 

pending resolution of the State of Texas' petition for review of the Rule, which is currently, 

pending in the United States Court of Appeals for the District of Columbia Circuit . Perry v. 

EPA, No . 10-1222 (D.C. Cir. filed Aug. 2, 2010) . Texas' request that EPA stay the Tailoring 

Rule is independent of any other request that EPA reconsider or stay the Tailoring Rule, and the 

grounds set forth in this letter are in addition to those set forth in General Abbott and Chairman 

Shaw's letter to you of August 2, 2010 . 

Texas has an undisputed right to address air quality management resources issues, including 

newly-regulated pollutants, on a prospective basis. EPA may not step in unless and until the 

states have been given full and fair opportunity, to do so. In contravention of these fundamental 

principles, the Tailoring Rule requires that Texas and other states reinterpret or revise their state 

implementation plans (`'SIP") on or before January 2, 2011 . If Texas does not do so, EPA has 

indicated that it will limit its approval of the Texas SIP and impose a federal implementation 

plan ("FIP"). Texas strongly disputes the legal and policy basis for the Tailoring Rule and 

EPA's assertion that it may adopt a FIP if Texas fails to revise immediately its SIP . In any 

event, it would not be possible for Texas to comply with EPA's unlawful and unprecedented 

deadline . 

Texas' and the public's interests would be best served if the D .C . Circuit had the opportunity to 

review the Tailoring Rule before it went into effect. Texas should not be forced to choose 

between forfeiting the authority to operate its PSD program and spending significant resources, 

administrative and otherwise, to meet EPA's unlawful deadline. Moreover, EPA assiduously 

and correctly avoided ascribing any environmental benefit from the Tailoring Rule, so staying 

the Tailoring Rule until after Texas has had a full and fair opportunity to litigate its petition for 

review would likewise not adversely impact public health or welfare . 

POST OFFICE BOX 12548, ALSTIN, TEXAS 'P871 1-2549 TEL:(SII) 463-2100 WEB WWW.TEXASATTORNEYGEkERAL-GOV 

An F_qua! F.mplayme.nt Opporturtuy EerPoyer Prin1ed on Retycfed Poprr 
1 . EPA's Requirement That Texas Reinterpret Or Revise Its SIP By January 2, 

2011, Is Impracticable And Unlawful 

The Tailoring Rule revises EPA's Part 51 Regulations, which set forth the requirements for 

approvable SIPs, despite EPA's failure to propose this change in its Notice of Proposed 

Rulemaking, Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring 

Rule ("Tailoring Rule Proposal"), 74 Fed . Reg. 55,292 (Oct. 27, 2009) . In its haste to 

surreptitiously rewrite the Clean Air Act, EPA violated its own regulations : 40 C .F .R . § 

51 .166(a)(6) gives states, including Texas, three years to submit revised SIPs following EPA 

changes to the minimum standards for approvable S1Ps : 

Amendments . (i) Any State required to revise its implementation 

plan by reason of an amendment to this section, including any 

amendment adopted simultaneously with this paragraph (a)(6)(i), 

shall adopt and submit such plan revision to the Administrator for 

approval no later than three years after such amendment is 

published in the Federal Register . 

(iii) Any revision to an implementation plan that an amendment to 

this section required shall take effect no later than the date of its 

approval and may operate prospectively . 

EPA even purported to bypass Clean Air Act § 110(k)(5), 42 U .S .C . § 7410(1c)(5), which 

unambiguously provides states with a minimum of 18 months to revise their SIPs following SIP 

call authorized by the Clean Air Act. See 75 Fed . Reg. at 31,583 . 

EPA's regulation allowing states three (3) years to revise their SIPs serves several purposes. 

First, it helps enforce the states' undisputed right to the first opportunity to address air quality 

management resources issues, including newly-regulated pollutants under the PSD and Title V 

programs, on a prospective basis . The Clean Air Act recognizes that "air pollution prevention . . 

. and air pollution control at its sources is the primary responsibility of States and local 

governments," not of EPA . Clean Air Act § 101(a)(3), 42 U.S .C . § 7401(a)(3) . The Clean Air 

act "places primary responsibility on the states for [SIP] revision." Concerned Citizens of 

Bridesburg v. EP.4, 836 F .2d 777, 781 (3d Cir . 1987). EPA's role is limited. The Agency is not 

"a roving commission to achieve pure air or any other laudable goal," Michigan v. EPA, 268 

F.3d 1075, 1084 (D.C . Cir. 2001), and its powers to revise SIPs are limited to those expressly 

enumerated in Clean Air Act § l 10, see Concerned Citizens of Bridesburg, 836 F .2d at 797 n.12 

Finally, 40 C .F.R. § 51 .166(a)(6) reflects EPA's long-standing recognition that SIP revisions 

take significant resources, and that states (and EPA) have the responsibility to ensure ample 

opportunity for the public to participate in the SIP revision process. 
EPA's threat to impose a FIP on Texas as of January 2, 2011, is similarly unlawful . See 75 Fed. 

Reg. at 31,526 (announcing EPA's intention to "ensure" all sources of greenhouse gases will be 

permitted under the final Tailoring Rule on January 2, 2011, by moving "quickly to impose a 

[FIP] for PSD through 40 CFR 52.21 ") . Clean Air Act § 110(c)(l ) specifically requires that EPA 

first make a finding that a state has failed to make a required submission, such as a SIP revision, 

and then to allow the state additional time to correct any of EPA's perceived deficiencies . As 

described above, EPA may not consider a FIP until after the three-year period for SIP revisions 

described above and then only if Texas defaults in submitting a revision at the end of that threeyear period . 

Beyond being unlawful, EPA's deadline of January 2, 2011 for states to reinterpret or revise their 

SIPs is impracticable . As we explained at length in our letter of August 2, 2010, Texas would be 

unable to reinterpret its SIP to effect the Tailoring Rule . Instead, Texas would need to revise its 

SIP, a process that it would be difficult, if not impossible, to complete in the approximately five 

(5) months remaining before EPA's January 2, 2011 deadline . 

2. A Stay Is Necessary To Preserve Texas' Ability To Operate Its PSD Program 

During The Pendency Of The Petition For Review 

By imposing the unlawful five-month timetable for Texas to revise its SIP, the Tailoring Rule 

threatens Texas' ability to maintain its PSD program and issue permits to sources in its state . If 

EPA follows through on its threat to issue a FIP for Texas on January 2, 2011, Texas will lose its 

ability to operate its PSD program . EPA's attempt to use this deadline to allow the Agency to 

promulgate a FIP long before Texas could reasonably be determined to have defaulted on its 

obligations is contrary to EPA's past practice and state primacy. If EPA were not to implement a 

FIP on January 2, 2011, the Tailoring Rule would create a cloud on any permits issued by Texas 

between that time and the time at which EPA chose to act because of EPA's suggestion that any 

later adoption of the Tailoring Rule through a FIP or SIP revision would apply retroactively . In 

either case, the Tailoring Rule will adversely affect Texas' ability to manage its air quality 

resources and to ensure "that economic growth will occur in a manner consistent with the 

preservation of existing clean air resources." Clean Air Act § 160(3), 42 U.S .C 3 7470(3). 

Texas is confident that the D.C . Circuit will ultimately vacate the Tailoring Rule, but during the 

pendency of this suit, the Tailoring Rule's vitiation of Texas' statutory right to operate its 

permitting program will cause the State irreparable harm . 

3. A Stay Will Serve The Public Interest By Allowing Meaningful Judicial 

Review Of The Tailoring Rule Before It Enters Into Force 

Texas has petitioned the D .C . Circuit for review of the Tailoring Rule, as have numerous other 

petitioners . Texas and the other Petitioners will raise significant challenges to the Tailoring 

Rule's lawfulness as to the emission rate thresholds it sets for PSD and Title V applicability, 

EPA's plans to require SIP revisions or reinterpretations by January 2, 2011, and whether the 

Tailoring Rule is a logical outgrowth of EPA's Notice of Proposed Rulemaking . A stay is 

particularly apt given EPA's decision to predicate an economy-wide rule on the rarely- 
appropriate "absurd results" doctrine, which EPA has invoked because, unlike every other 

regulated pollutant, EPA has purported to find that regulation of greenhouse gases under the PSD 

program would produce results plainly inconsistent with congressional intent. See 75 Fed. Reg . 

at 31,542 (quoting United States v Ron Pair Enters., 489 U.S . 235, 242 (1989)). 

While Texas and other States would be harmed if the Tailoring Rule were not stayed, no party 

would be harmed by staying the Rule. EPA has appropriately not represented that the Tailoring 

Rule would have any positive effects on public health or welfare. Staying the Tailoring Rule 

will not harm Texas' sister states . If another state is lawfully able to reinterpret its SIP to 

conform to the Tailoring Rule's requirements, it can do so without the Tailoring Rule's revisions 

to the Part 51 Regulations . In the event one of Texas' sister states revises its SIP to incorporate 

the Tailoring Rule, it can submit the revision for EPA's approval, subject to judicial review in 

the Court of Appeals where the state is located. 

Texas strongly disputes the legal and policy basis of each of EPA's actions regulating 

greenhouse gases under the Clean Air Act, including the Tailoring Rule, Texas' objections will 

be resolved in litigation now pending in the United States Court of Appeals for the District of 

Columbia Circuit . In order to maintain the status quo regarding the proper allocation of powers 

between the States and EPA, and in light of EPA's inability to ascribe any public health or 

welfare benefits to the Tailoring Rule, EPA is obligated to stay the Tailoring Rule until Texas' 

challenge is resolved. Texas may seek immediate relief from the D.C . Circuit if EPA denies or 

fails to respond to this request on or before August 24, 2010. 

Sincerely, 

Jon Niermann 

Assistant Attorney General 

cc : J . Reed Clay, Jr., Office of the Solicitor General of Texas 

David B . Rivkin, Jr., Baker & Hostetler LLP