Power provider loses appeal of EPA oversight

DALLAS — The largest power generator in Texas lost an appellate court challenge Monday over federal supervision of state clean-air regulations.

Dallas-based Luminant Generation Co. filed a lawsuit challenging how the U.S. Environmental Protection Agency responded to state plans for implementing new clean-air standards. But in a 29-page ruling, a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans ruled that the EPA acted within its powers in partially rejecting the state plan.

The so-called “state implementation plan” is a state’s plan for implementing requirements of the U.S. Clean Air Act.

Luminant and other electric power generators have been involved in an ongoing fight over efforts to implement more stringent clean-air standards that could mean trouble for some of the generators’ coal-fired power plants. The EPA has been pressing states, including Texas, to implement more stringent air pollution standards that reflect federal standards.

The Texas Commission on Environmental Quality put forth plans that would give air polluters latitude for excessive emissions resulting from unplanned, unavoidable malfunctions. But the EPA said the state would need to require polluters to prove that they had done all they could to prevent the polluting incidents.

Luminant can ask for a rehearing by the full 5th Circuit Court, but “we are still reviewing the court’s opinion and assessing our options,” spokeswoman Ashley Barrie said.

Meanwhile, environmentalists hailed the ruling as a victory that would require tougher clean-air efforts and allow enforcement suits to proceed, said Bruce Nilles, senior director of the Sierra Club’s Beyond Coal campaign.

Texas has 19 coal-fired power plants — more than any other state — and plans to build nine more. It is one of the few states still adding coal-fired plants and releases more air pollutants than any other state. Most other states are building generation plants that use sources other than coal, particularly natural gas.

Faced with a growing population, few new energy sources and hot summers, Texas has been vocal in its opposition to the regulations since the new rules were announced in July. The state has asked a federal appeals court to review the rules.