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By W. Gardner Selby June 7, 2010

Staples says EPA regulation of greenhouse gases endangers Texas farms, dairy plants and cattle operations

Todd Staples, the state agriculture commissioner, this year joined Gov. Rick Perry and Attorney General Greg Abbott in objecting to the U.S. Environmental Protection Agency designating half a dozen greenhouse gases as endangering public health.

Staples says on his campaign website, which we visited in late May, that he’s fighting the December "endangerment" finding because the consequences would be disastrous for Texas farmers who, he implies, would suffer from government monitoring and regulation of gases emitted by animals and equipment.

"Companies that will be endangered in Texas include 575 dairy facilities, 58 swine operations (and) 1,300 corn farms," Staples says. "No industry is more threatened than the cattle industry. If this rule is implemented, an estimated 28,000 beef cattle operations in Texas will fall under EPA regulation."

Milk, pigs, corn, cows – the feds whuppin' all these grown-in-Texas products? We wondered if Staples plows a straight row.

Cody McGregor, Staples’ campaign manager, said the commissioner, a Republican seeking re-election, derived his Texas figures from a July 2008 letter written by the U.S. Department of Agriculture in response to the EPA’s draft advance notice to regulate greenhouse gases.

In its letter, the USDA said that if greenhouse gas emissions were regulated under the Clean Air Act, numerous farms then not required to seek gas-emission permits would be so burdened. The 1970 act directs the EPA to establish air quality standards; the law requires the agency to concentrate on major polluters, which are defined as those that emit more than 100 tons of unhealthful pollutants a year.

The  USDA letter says that even "very small agricultural operations" would fall in that category: "For example, dairy facilities and farms with over 500 acres of corn may need to get a Title V permit. It is neither efficient nor practical to require permitting and reporting of (greenhouse gas) emissions from farms of this size. Excluding only the 200,000 largest commercial farms, our agricultural landscape is comprised of 1.9 million farms with an average value of production of $25,589 on 271 acres."

O June 23, 2009, Staples sent a letter to Lisa Jackson, the EPA administrator, objecting to the greenhouse gas endangerment finding. That letter says that based on the USDA’s herd and acreage estimates, Texas in 2007 had approximately 575 dairy facilities, 28,000 beef cattle operations, 58 swine operations and 1,300 corn farms that met the "regulatory threshold."

So, Staples aired his Texas estimate nearly a year ago based on the USDA’s assessment of the impact of EPA plans to regulate greenhouse gases drafted about a year before that.

Presuming his math is solid, we wondered if the nearly 2-year-old concerns shared by USDA still hold. To our queries, Staples did not say precisely why or how the EPA's permitting will endanger the Texas operations he tallies.

In Washington, EPA spokeswoman Catherine Milbourn looked over the information provided by Staples’ campaign. She said the analyses reflect expectations about the EPA’s plans that are no longer valid because the EPA effectively excused farms from complying with the requirements cited in the USDA’s letter. EPA spokesman Brendan Gilfillan followed up with an e-mail: "These types of doomsday scenarios are simply untrue. EPA issued a rule that would specifically ensure small businesses and farms are shielded from clean air act permitting for" greenhouse gases.

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The EPA’s May 13 final "tailoring rule," a descriptive reflecting the agency's decision not to impose the same pollutant thresholds on greenhouse gases that were spelled out for pollutants in the Clean Air Act, specifies the types of entities that will initially have to toe the line on greenhouse gas emissions. An accompanying fact sheet states: "Facilities responsible for nearly 70 percent of the national (greenhouse gas) emissions from stationary sources will be subject to permitting requirements under this rule. This includes the nation’s largest (greenhouse gas) emitters—power plants, refineries, and cement production facilities. Emissions from small farms, restaurants, and all but the very largest commercial facilities will not be covered by these programs at this time."

At this time? The fact sheet says the EPA is committing to additional rule-making by July 2012 which may discuss "whether certain smaller sources can be permanently excluded from permitting." Permits for smaller sources of any type won't be required until at least April 30, 2016, the agency says.

In a May 13 blog post headlined "EPA Greenhouse Gas Rules Likely Target for Suits," Legal Times magazine in Washington notes that the Clean Air Act requires entities that emit 100 to 250 tons of pollutants per year to get government permits to do so. Because greenhouse gases are emitted in much larger quantities than traditional pollutants, the 100 to 250 ton threshold would require permits for small farms, restaurants and apartment buildings, for example. In raising the threshold, the agency is admitting the absurdity of applying the lower limits to more prevalent greenhouse gases, the blog says.

McGregor of Staples’ campaign conceded the EPA's May 13 rule excludes farms. McGregor said, however, that what the EPA says today "can likely change tomorrow." He pointed us to an online analysis of the rule by Washington lawyer Richard Stoll, whose clients include industrial operators including Portland cement manufacturers.

Stoll told us he expects the rule to be challenged in federal court because the pollutant thresholds in the rule are far above what the Clean Air Act mandates. More broadly, Stoll said, the EPA wants Congress to pass laws related to greenhouse gas regulation; one way of touching off such action is to issue rules likely to be tossed in court. "There is a good chance that the DC circuit (court) will throw that regulation out and then all of a sudden EPA is going to be confronted with having to do something about all these farms and everything (else)," Stoll said. "There’s grounds to be fearful here."

However, Stoll said, should the EPA ever get to the point of requiring farmers to monitor and report on localized gas emissions, Congress almost certainly will intervene. "If all of a sudden you’re having farmers worried about monitoring cow farts, Congress will be all over this," he said. "It might not be immediately; it could be a damn mess for a while."

Shannon Goessling, executive director and chief legal counsel of the conservative-leaning Southeastern Legal Foundation, which has challenged the endangerment finding, contends the EPA had another reason for excusing farms and other small businesses from greenhouse gas regulation: The government hopes they will drop their resistance to the endangerment finding.

There's another legal view. Melinda Taylor, former director of the Environmental Law Clinic at the University of Texas School of Law, agreed with Stoll that the EPA wants Congress to step in and take on greenhouse gas emissions. But, she said, it’s also likely the EPA would prevail in court if its May 13 rule is challenged.

Generally, she said, "courts will not substitute their own judgment for that of an agency." Besides, she said, "farmers have always been very successful in making the case they can’t comply with regulations that would be onerous and inordinately costly to them — to the detriment of the environment, I might add."

Phew. Where does all this leave Staples’ statement?

The commish had a basis for his numbers in the 2008 USDA letter.

But his assumption that farms would be subject to the regulations expired when the EPA issued its final rule weeks ago. Since, Staples has neither adjusted nor reasonably explained his outdated complaint.

His statement is False.

Our Sources

EHS Today, online magazine, "An Overview of the Clean Air Act," April 30, 2004

Houston Business Journal, Letters to the editor, "Call to Action," Todd Staples, Texas agriculture commissioner, July 17, 2009 (accessed May 25, 2010)

Legal Times, BLT, the Blog of Legal Times, "EPA Greenhouse Gas Rules a Likely Target for Suit," accessed June 1, 2010

E-mail, Cody McGregor, campaign manager, Todd Staples campaign, May 27, 2010

E-mails (Excerpted), Catherine C. Milbourn, senior press officer, Office of Media Relations, Environmental Protection Agency, statement from spokesman Brendan Gilfillan, May 27, 2010

Foley & Lardner, LLP, newsletter article, "Tinkering, Tailoring: EPA Issues New Rule for Greenhouse Gases Under Clean Air Act," May 14, 2010 (accessed May 27, 2010)

Todd Staples, Texas agriculture commissioner, campaign website, "Policy," (accessed May 25, 2010); letter to Lisa Jackson, administrator, Environmental Protection Agency, June 23, 2009

Interviews, Richard Stoll, law partner, Foley & Lardner, Washington, May 27 and June 2, 2010

Interview, Melinda Taylor, director, Center for Global Energy, International Arbitration and Environmental Law, University of Texas School of Law, May 28, 2010

U.S. Department of Agriculture and other federal agencies, letter on proposed greenhouse gas regulation to U.S. Office of Information and Regulatory Affairs, Office of Management and Budget, July 9, 2008

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Staples says EPA regulation of greenhouse gases endangers Texas farms, dairy plants and cattle operations

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