State environmental regulators don't adequately enforce air pollution laws, the city of Houston believes, and on Wednesday it will ask the state's highest civil court to let it keep trying to do the job itself.
The state Supreme Court will hear arguments in a case challenging a pair of ordinances the city enacted in 2007 and 2008 requiring industrial polluters within Houston to register with the city, and subjecting the polluting companies to fines if they operate without registering.
BCCA Appeal Group, a coalition of industrial facility owners including ExxonMobil and the Dow Chemical Company, sued the city seven years ago, claiming the ordinances improperly preempt state law. The First District Court of Appeals has already weighed in on Houston's side, finding in 2013 that the Legislature had not foreclosed such local regulations with anything resembling "unmistakable clarity."
In its appeal to the Supreme Court, BCCA argues that the city is allowed to enforce air regulations only if it uses the weaker enforcement tools laid out by the state.
But Houston, and a host of environmental groups filing amicus briefs in support of the city, say it is perfectly within its rights to enforce state laws using alternative regulatory strategies, including levying fines where the state won’t.
“The city’s looking for accountability, and this is a streamlined way of trying to do that,” said Rock Owens, who co-authored an amicus brief submitted by the Harris County Attorney’s Office. “There should be something that happens if you don’t follow the law, and the [Texas Commission on Environmental Quality] isn’t in a position where they can provide enforcement. They don’t have the resources, or, frankly, the will.”
Owens said he believes the Houston ordinances simply put some muscle behind regulations the commission laid out. “It’s just a matter of layering — a matter of making the law effective,” Owens said.
But Gov. Greg Abbott, who filed an amicus brief in support of BCCA, argued that Houston already has appropriate avenues for enforcing the state’s air pollution regulations. Abbott said the city’s tougher efforts to combat air pollution are both overzealous and illegal.
He emphasized the potential impact tighter, local regulations would have on small businesses.
“The Governor seeks to raise a concern that has not received enough attention in this case: the devastating consequences that the ordinance will impose on Houston’s small businesses, such as auto repair shops, gas stations, and dry cleaners, if the City is allowed to pursue its aggressive approach to environmental regulation,” the brief stated.
Given how political tides recently have turned against local efforts to police industries, Adrian Shelley, executive director of Air Alliance Houston, said he isn’t optimistic about the city’s chances in front of the state’s highest civil court.
Shelley cited House Bill 40, signed by Abbott in May, which preempts local control over most oil and gas activity, as one reason for his concern.
“I think it needs to be said that there’s a larger trend here — a problematic trend — and that’s bad for public health in Texas,” Shelley said. "We're likely to lose this case."
In the last several years, Houston has become an epicenter for environmental policy debates. Its aggressive anti-pollution policies have been a source of friction with lawmakers who say they want to avoid a patchwork of varying regulations across the state.
In January, AT&T agreed to pay Harris County about $5 million as a result of the company's leaky storage tanks. Two months later, state Rep. Charlie Geren, R-Fort Worth, introduced a bill to limit local governments' ability to prosecute polluters.
Disclosure: ExxonMobil and the Dow Chemical Company are corporate sponsors of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.