Texas High Court Strikes Down Houston's Air Pollution Rules

by | May 2, 2016

By Susan Carroll

The Texas Supreme Court on Friday struck down Houston's air quality ordinances, ruling the city overstepped its authority to police polluters and handing industry advocates a major victory.

In an 8-1 decision, the justices ruled that ordinances requiring businesses to pay registration fees and allowing criminal sanctions for emissions violations were inconsistent with state law.

The Business Coalition for Clean Air Appeal Group, which includes giants such as Exxon Mobil and Dow Chemical Company, accused the city in a 2008 lawsuit of creating an "enforcement regime" that goes beyond its role permitted under state law.

In 2014, about 2,800 businesses were registered with the city, which collected nearly $1.5 million through the program that year.

"What the city is trying to do is not consistent with what the Legislature has decided," said Evan Young, an attorney for the coalition. "This ruling sends the message that clear, evenhanded statewide regulation is something the Texas Supreme Court takes seriously."

City Attorney Donna Edmundson issued a statement saying the court's decision "will not dampen the city's efforts" to assist the Texas Commission on Environmental Quality with the enforcement of environmental laws. The statement said the city will employ "other legal mechanisms" allowed under state law to monitor and take action against polluters. A spokeswoman said the city hadn't decided whether to appeal.

Adrian Shelley, executive director of the advocacy group Air Alliance Houston, said the decision was "not the least bit surprising" but dismaying nonetheless.

"It's pretty in-keeping with both previous judicial decisions and the direction in which our state government is moving," he said.He cited the state Legislature's passage of a bill last session that caps the amount local governments can collect through environmental lawsuits, Gov. Greg Abbott's filing of a brief in support of the industry advocates in this case, and a prior legal case that made its way to the Texas Supreme Court.

"There will be more polluters who pollute with impunity," Shelley said. "There will be a little poorer public health in the city as a result."

Frustration with TCEQ

Houston battled smoggy skies for decades and has failed to comply with federal ozone standards. The 10-county area includes the largest petrochemical complex in the country, hundreds of chemical plants and a bustling port.

Under the ordinances, the city collects registration fees from companies in order to investigate potential violations of air pollution laws.

City officials have defended the ordinances since their passage in 2007, arguing they helped fill an enforcement gap created by understaffing at TCEQ, the state agency responsible for monitoring and punishing polluters.

The city said legal mechanisms it could use against polluters include requesting that TCEQ investigate suspected polluters, seeking injunctive relief and penalties in civil court against suspected violators and notifying TCEQ of violations deemed to be criminal in nature.

Former Mayor Bill White pushed for the ordinances after growing frustrated with TCEQ. He and City Council members voted to amend a 1992 ordinance and start requiring businesses to pay registration fees based on their size and emissions. The fees range from $130 for a dry cleaning plant with fewer than six employees to $3,200 for plants emitting more than 10 tons annually of airborne contaminants.

The ordinances also authorized city health officers to seek civil, administrative and criminal sanctions for violations that can be prosecuted in municipal court, with fines of up to $2,000 per day for repeat violators.

Undermining state authority

For years, industry groups have argued that the city ordinances interfere with TCEQ's enforcement authority.

A Harris County district court judge sided with industry advocates and enjoined the city from enforcing the ordinance in March 2011. The city appealed, and in 2013, the First District Court of Appeals overturned the lower court's decision.

Abbott filed a brief in August in support of the industry group, saying the city's ordinance interferes with TCEQ's enforcement powers and could harm mom-and-pop businesses like dry cleaners.

The justices wrote in their opinion Friday that if the TCEQ chose not to take enforcement action against a company, it did not give the city the legal authority to step in.

"By authorizing criminal prosecution even when the TCEQ determines an administrative or civil remedy -- or even no penalty at all -- to be the appropriate remedy, the city effectively moots the TCEQ's discretion and the TCEQ's authority to select an enforcement mechanism," the opinion states. "This is impermissible."

City inspections allowed

Similar ordinances are in place elsewhere in the state, including in San Antonio.

Even without the city ordinances, state law allows city personnel to enter and inspect facilities, Young added. Cities also can contract with TCEQ to help with enforcement under its supervision.

Local governments also can sue polluters in civil district courts, but only with approval of the local governing body and if TCEQ joins as a party.

Young said the industry group "has never tried to undermine the importance of state environmental law."

"What matters," he said, is that enforcement is "done in a safe, efficient, clear, evenhanded way."

(c)2016 the Houston Chronicle