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The U.S. Environmental Protection Agency is proposing to change the rules regarding permits issued to so-called minor air polluters, giving states the power to decide how much notice and public comment residents receive before such permits are approved or denied.
For Texans, this rule change could limit their right to have a say in the type of pollution permits typically issued to concrete batching plants and rock crushers, but increasingly used by large data centers coming to Texas.
It would give the state’s environmental regulator, the Texas Commission on Environmental Quality, the power to rewrite its own rules, which could include reducing opportunities for protests and challenges before permits are issued.
If EPA makes a change, any subsequent changes that TCEQ attempts to make will go through its own rulemaking process where people can provide input.
The EPA says the changes are aimed at “reducing administrative burdens, responsibly expediting permitting, and supporting U.S. economic development and energy dominance” by putting state agencies “most familiar with local issues” “in the driver’s seat.”
“Each state will have the option to decide what is best for their community,” said EPA spokeswoman Carolyn Horan. “Our proposals do not change emissions standards or weaken environmental protections. EPA’s aviation permitting partners will continue to be required to meet all applicable statutory and regulatory requirements to best preserve human health and environmental protection.”
But Texas environmentalists say the proposal could serve to strip residents of one of the few tools they have to challenge industrial development in a state where regulators are already criticized for weak enforcement.
EPA is scheduled to hold a virtual public hearing on the proposal on July 22nd. Interested participants must register by July 19th, but EPA is accepting written comments until August 21st.
Advocates say the timing is especially important as Texas is experiencing an unprecedented surge in data centers to power its artificial intelligence boom, with many applying for light pollution source permits for diesel generators and certain gas turbines to power their facilities.
“Our concern is that if the EPA says states can set their own rules, and given TCEQ’s already reluctance to provide strict oversight, they may respond by adopting their own rules that eliminate the public participation requirement,” Air Alliance Houston Executive Director Jennifer Hadaiah said.
“If this rule passes, the voices of communities across Texas and other states will be silenced,” Kathryn Guerra, director of the Public Citizen Watchdog Campaign and a former regulator at the EPA and the Texas Commission on Environmental Quality, said in a social media video.
Horan, the EPA spokeswoman, said that claim is false and that the agency is not excluding people from the process.
The permit is intended to ensure the facility complies with federal regulations for six air pollutants regulated by the Clean Air Act, which is meant to protect human health and the environment, as well as other pollutants linked to asthma, heart disease and cancer.
The proposal would not apply to major polluters such as large oil and gas refineries and chemical plants, which require federal permits to operate. Instead, it focuses on facilities considered to be minor sources of air pollution, such as concrete batching plants, rock crushers, metal recyclers, dry cleaners, auto repair shops, and backup generators powering AI data centers.
TCEQ did not respond to requests for comment on this concern or whether it would consider changing public participation rules if the EPA were to pass.
History of citizen participation in Texas
A 2022 study by the Texas Sunset Advisory Committee on TCEQ’s effectiveness concluded that TCEQ commissioners had become “reluctant” to regulate the industry and recommended that the agency be made more transparent, including giving the public more notice about meetings and the period during which people can submit comments.
The review led to lawmakers calling for reforms in the 2023 legislative session, and ultimately enacting new public participation rules, following years of pressure for greater involvement from communities living near industrial facilities.
Now, advocates worry that the EPA’s proposal to transfer authority to states could put these new rules at risk of setbacks.
“Texas generally does not exceed federal requirements,” said Silas Reed, conservation director for the Lone Star Chapter of the Sierra Club.
Yvette Arellano, founder of the environmental watchdog group Fenceline Watch, worries that the rule “will undermine the public’s, community’s right to know, transparency, and access to information for the communities that are hardest hit. We’re talking about low-income, low-resource, under-resourced communities that are largely minority neighborhoods.”
Opponents of the EPA’s proposal focus on the fact that multimillion-dollar data center projects, which often include dozens or even hundreds of individual diesel generators, would still be subject to these smaller permits.
Starting in 2024, at least 38 data centers in Texas have received small power permits for on-site power, and more than 2,100 diesel backup generators have been authorized to be installed across the state, Floodlight reported.
As data center developers race to meet AI’s growing power demands, they are increasingly adopting a “home generation” strategy, with some projects proposing their own natural gas power plants to power data centers instead of or in addition to connecting to the state grid.
For example, the Vantage data center outside San Antonio received a permit to emit 99.8 tons of nitrogen oxides annually, a pollutant linked to respiratory illnesses and premature death.
“We are already concerned that TCEQ is awarding a large number of these small permits in a very quick manner without considering the cumulative impacts, and this (EPA proposal) will only make the situation worse,” Reed said.
Advocates also worry that developers could hide the cumulative impact of these projects by applying for permits in stages, starting with relatively small applications and then expanding.
Minor source permits can have major impacts
For residents, the permitting process is often the first sign that these facilities are coming to their area.
Hadeia, executive director of Air Alliance Houston, said these opportunities are especially important in Houston. In Houston, zoning laws provide little separation between residential and industrial development.
“Houston is a city without zoning,” she said. “There is minimal, minimal protection between my home and a metal recycler that is literally 400 meters from my home. The only protection we have is what is written on the permit and the opportunity to participate in the process.”
Reed said states are still free to maintain or even strengthen their own public participation requirements.
“When there’s pressure on authorities and companies, they tend to get better permits,” Reid said. “When things are done in the dark, with only registration and approval processes that the public cannot assess, it tends to create more contamination and make the problem worse.”
Disclosure: Air Alliance Houston, Floodlight and the Sierra Club are financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization funded in part by contributions from members, foundations and corporate sponsors. Financial supporters play no role in The Texas Tribune’s journalism. See the complete list of them here.
