Texas Rules Favored for Concrete-Crushing Plant

     HOUSTON (CN) – Houston cannot block construction of a concrete-crushing plant approved by state regulators, the Texas Supreme Court ruled.
     Hoping to move its concrete-crushing plant to a new Houston location, Southern Crushed Concrete applied to the Texas Commission on Environmental Quality in 2003 for an air quality permit.
     During the review by state regulators, however, a school sprang up near the proposed site. The proposal took another hit in May 2007 when the city of Houston passed an ordinance requiring concrete-crushing plants to get a municipal permit.
     While Texas law prohibits such operations within 1,320 feet of a school, the city’s ordinance reaches farther with a 1,500-foot embargo.
     State regulators nevertheless granted Southern Crushed its requested air quality permit in August 2008, finding it would not violate Texas’ location requirements.
     Houston found, however, that site would not meet the location restrictions in its ordinance and it refused to grant Southern Crushed a municipal permit.
     Southern Crushed then challenged the constitutionality of Houston’s law, seeking an injunction against its enforcement and an order that state statute pre-empts it.
     Houston prevailed both before the trial court and the 14th Court of Appeals, which held that the city ordinance is neither pre-empted nor unconstitutional.
     The Texas Supreme Court reversed Friday after finding that the state permit is all Southern Crushed needs to go ahead with its plant.
     Texas law forbids a city from restricting an act authorized by the Texas Clean Air Act, or state regulators, according to the ruling.
     “The city counters that the ordinance does not make unlawful an act authorized by the commission, arguing that the permit merely removed one government-imposed barrier to operations but did not affirmatively authorize anything,” Justice Debra Lehrmann wrote for the nine-judge court on Friday. “We disagree. As Justice Brown noted in his dissent in the court of appeals, the city effectively argues that ‘the permit the commission issued to [SCC] ‘authorizing the construction and operation of’ a concrete-crushing facility is not actually that.’ The city’s argument is inconsistent not only with the permit language, but also with Texas law, which defines permit to mean ‘an authorization by a license, certificate, registration, or other form that is required by law or state agency rules to engage in a particular business.'” (Emphasis in original.)

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