Texas Makes It Tougher to Sue Polluters
Gov. Greg Abbott has signed legislation that could make it tougher for local governments to sue big-time polluters – an effort that largely targets Harris County prosecutors.
House Bill 1794, set to become law on Sept. 1, will set a five-year statute of limitations and cap payouts at about $2 million when counties sue companies that have fouled their water or air. It’s another win for a wide range of business groups in a rough legislative session for environmental advocates.
Rep. Charlie Geren, R-Fort Worth, and Sen. Kelly Hancock, R-North Richland Hills, pushed the bill through both the House and Senate, drawing little debate.
Proponents say that curbing the civil penalties assessed on top of those state regulators issue would bolster economic certainty for companies and allow them to focus resources on cleaning up their messes.
“If someone is remediating the violations they have, I don’t believe they should be assessed these additional penalties,” Geren said in an interview last month. “I don’t believe it’s a setback for environmentalists at all because we didn’t take away any authority from the [Texas Commission on Environmental Quality].”
Environmentalists beg to differ. With other critics, they say state environmental regulators don’t do enough to hold polluters accountable, and that limiting local suits would encourage more pollution that jeopardizes public health.
“It is a terrible bill, and it is designed to protect polluters,” Terry O’Rourke, special counsel with the Harris County attorney’s office, told The Texas Tribune last month. “That’s all it is: It is a polluter protection bill.”
The bill largely aims at Harris County, whose attorneys, Geren contends, have been “abusing” the system.
Home to the nation’s largest petrochemical complex, the county receives about 1,500 citizen complaints about pollution each year, and employs four attorneys to handle environmental litigation and compliance. Smaller counties typically rely only on outside legal help in environmental cases.
Nearly 50 years ago, Texas lawmakers gave local governments the power to bring civil suits against companies for violating environmental laws, and Harris County has often used that authority.
Any lawsuit dealing with state environmental violations requires the state to join in as a "necessary and indispensable party."
In the past five years, Harris County has brought about 10 such cases per year, with penalties averaging about $61,000 per case. But several high-profile environmental cases have resulted in bigger settlements with the county, including a January agreement with AT&T for about $5 million over leaking storage tanks.
Lawyers for the county and the state recently won a $29.2 million settlement from McGinnes Industrial Maintenance Corp. and Houston-based Waste Management Inc. for pollution in the San Jacinto Waste Pits in the eastern half of the county, where wastewater containing dioxin, highly toxic and carcinogenic, has festered for decades.
Such legal battles have become a flashpoint for some Republican lawmakers and business leaders in Texas, who think local governments shouldn’t be leading charges to prosecute over violations of state law.
Under HB 1794, local governments and the state would evenly split the first $4.3 million awarded in a suit, and the state would pocket any amount above that limit.
County officials say the cap on local government collections would make it difficult if not impossible to prosecute the most complex, egregious cases of pollution, because contingency fee lawyers would not sign on for such lower pay.
The counties, not the state, typically initiate such actions.