Court Tames Houston’s|Efforts to Tackle Smog

HOUSTON (CN) - A Houston law that lets the city prosecute industrial air polluters without input from state regulators is preempted by the Texas Clean Air Act, the Texas Supreme Court ruled.

With its numerous oil refineries, petrochemical plants and culture of car lovers who live with daily gridlock on the sprawling city's freeways, Houston has long ranked alongside Los Angeles as having some of the nation's worst air pollution.

Though stricter Clean Air Act enforcement by federal regulators has improved the city's air quality, it still does not meet federal safety standards.

Not content to let federal and state regulators take the lead on Houston's air quality, former Houston Mayor Bill White spearheaded an amendment in 2007 that gave teeth to the city's air-quality regulations.

The law authorized the city to charge owners of industrial plants, gas stations and dry cleaners an annual fee of $100 up to $3,000 depending on the size of the business, the Houston Chronicle reported in March 2008.

In passing the ordinance, the city sought to bolster what it perceived as the state's lax enforcement efforts through its regulatory agency, the Texas Commission on Environmental Quality.

The agency is run by three commissioners who are appointed by the state's governor to guide policy and make the final decisions on permitting and enforcement disputes.

Two of its commissioners were appointed by longtime Gov. Rick Perry and another by Perry's successor, Gov. Greg Abbott.

Environmentalists complain the arrangement means the commissioners kowtow to the business-friendly climate fostered by the state's Republican leadership, and point to the commission's position on climate change as proof: it doesn't consider greenhouse gases to be detrimental to the environment.

The BCCA Appeal Group is a nonprofit whose members, including Exxon Mobil and Dow Chemical Company, operate plants and refineries in Greater Houston. The group sued Houston in 2008, seeking a court declaration that the ordinance is invalid under the Texas Clean Air Act, water code and the state's constitution.

The trial court found Houston's ordinance violates the Texas constitution, but the First Texas Court of Appeals reversed and rendered judgment for the city. The BCCA Appeal Group appealed to the Texas Supreme Court, which heard arguments in September 2015.

Texas air-quality rules are geared toward civil and administrative penalties, not criminal, and the state often reaches "voluntary remediation and compliance" with polluters, according to the 37-page order written by Justice Paul Green and issued April 29.

A city can sue an air polluter for civil penalties but only if the city joins the commission as a "necessary and indispensable party" to the lawsuit. And under Texas law, a city can seek criminal penalties from a company only if the alleged violation is submitted in writing to the commission, before referral to a prosecuting attorney.

"The statute grants the Texas Commission on Environmental Quality 45 days to determine whether a violation actually exists and whether administrative or civil remedies would adequately and appropriately address the violation instead of criminal prosecution," Green wrote.

"A local government may proceed with criminal prosecution only if (1) the commission makes no enforcement mechanism determination during those 45 days, or (2) the commission decides that administrative or civil remedies would not adequately and appropriately address the violation and issues written notice recommending criminal prosecution."

Houston's law differs by allowing prosecutors to bring criminal charges against air polluters without state authorization.

The high court found the ordinance differs too much from the intent of the state Legislature's drafting of Texas's air-and-water-quality rules and that it's preempted by Texas law.

"By authorizing criminal prosecution even when the commission determines an administrative or civil remedy — or even no penalty at all — to be the appropriate remedy, the city effectively moots the commission's discretion. That is impermissible," Green wrote in the ruling, which was joined in full by all but one of the court's nine justices.

Justice Jeffrey Boyd disagreed that the Houston law is entirely preempted by state law because it allows the city to prosecute air-quality offenders without a green light from the commission.

"I do not agree that the laws are inconsistent because the prosecution provisions can be reasonably construed to permit the city to pursue criminal prosecutions only when doing so is consistent with the state-law requirements," Boyd wrote in a 17-page partial dissent.

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