Texas is poised to widen its welcome mat to a wide range of industries.
Claiming that the state's bureaucracy is shooing away businesses, House lawmakers on Thursday night gave initial approval to a bill aiming to quicken regulators' pace of cranking out permits for major industrial projects – by limiting public scrutiny.
Over the objections of consumer groups and environmentalists, the chamber tentatively passed Senate Bill 709, which would scale back contested-case hearings, a process that allows the public to challenge industrial applications for permits at the Texas Commission on Environmental Quality (TCEQ) – such as those allowing wastewater discharges or air pollution emissions.
Texas’ current bureaucracy puts the state at a “serious disadvantage” compared to its neighbors, said Rep. Geanie Morrison, R-Victoria, adding that her legislation would give businesses more certainty.
Already approved by the Senate, the measure sailed through the House by a 92-50 margin after Democrats put up a roughly 90-minute fight, arguing that lawmakers were poised to squelch the voices of their constituents.
“This bill is very, very serious,” said Rep. Sylvester Turner, D-Houston, who saw his and other proposed amendments to soften the bill shot down. “You will have to explain to your constituents why you have taken away their right, why you have enhanced their burden and why you have stripped them of protection.”
Contested case hearings resemble a trial in which companies and their critics present evidence and testimony in front of an administrative law judge in the hopes of swaying regulators, who have the final say. For particularly complicated – and controversial – industrial projects, the process can yield information that the short-staffed TCEQ did not foresee.
Protesters rarely convince regulators or a company to completely withdraw a permit application, but veterans of the process say they often win concessions that shrink a plant or landfill’s effects on the community.
In 2006, for example, Port Arthur residents reached a settlement with Motiva Enterprises, which was seeking to more than double the size of its refinery, now the largest in the U.S. As part of the agreement, the company added flame and sulfur recovery units that curb dangerous emissions.
The legislation only targets TCEQ’s permits. It would give the agency sole discretion over who is an “affected person” who could ask for a hearing; set an 180-day time limit for the proceedings (with potential exceptions); narrow the issues the public could debate; and arguably shift the burden of proof from the company to the public.
Currently, companies at a hearing must bring in experts to prove that a draft permit is acceptable. Under the legislation, a challenged draft would be presumed to meet “all state and federal legal and technical requirements,” forcing the citizen to prove otherwise. Opponents argue the change would limit the facts put before judges.
“In what courtroom in America can you not be able to cross-examine an expert witness?” asked Rep. Borris Miles, D-Houston. “We are taking the rights of citizens away in this bill.”
But industry groups complain that the hearings last too long and can be abused by groups trying to advance policy or business goals by slowing down the permitting process.
Texas has “the most onerous administrative review process of environmental permits in this country,” Christina Wisdom, with the Texas Association of Manufacturers, testified at a recent committee hearing.
On Thursday, Morrison argued that the system put Texas at risk of losing chemical plants and other major projects to Gulf Coast states.
“We want it to be done in a more timely manner, so we can compete with other states,” she said.
Democrats did not buy that argument. “I’d rather have them go to Indiana, Louisiana. I’d rather have them go to Timbuktu, than do what we’re doing here,” Turner said.
Less than 1 percent of permit applications ever draw a contested-case hearing.
Of 1,960 waste, water and air permit applications filed with TCEQ last year, for instance, the commission granted hearings to just 10, according to an analysis of public records by the advocacy group Public Citizen. The agency confirmed those numbers to The Texas Tribune.
The analysis also found that Texas typically processes air quality permits faster than Arkansas, Arizona, Oklahoma, New Jersey, Colorado and even Louisiana.