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Houston Argues for Right to Regulate Industrial Pollution

Arguing before the state Supreme Court Wednesday, Houston lawyers defended the city’s right to enforce statewide pollution regulations using fines and criminal charges when state environmental regulators aren't doing the job..

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Two ordinances passed by the city of Houston to regulate air pollution reflect the spirit of the Texas Clean Air Act and state environmental regulations and should be allowed to stand, lawyers for the city argued on Wednesday before the Texas Supreme Court. 

The ordinances, passed in 2007 and 2008, require industrial polluters to register with the city and follow state emission guidelines, at risk of being fined. The local rules are necessary, attorney Robert Higgason argued on Houston's behalf, so the city can plug gaps in environmental enforcement left by the Texas Commission on Environmental Quality.

“The point of all this is to protect the public and the environment, to have clean air, and the TCEQ, for the Texas Clean Air Act, envisions that it be vigorously enforced,” Higgason said. “This is what the statute makes reference to — cities being allowed to enact and enforce their own ordinances to achieve the goal of the Texas Clean Air Act.”

BCCA Appeal Group, a coalition of industrial facility owners including ExxonMobil, the Dow Chemical Company and ConocoPhillips, has sued to strike down the ordinances, arguing Houston is exceeding its authority under state law. 

“The Legislature has already addressed what cities can do to address this problem...and they’ve turned what should be an administrative and civil regime, that should be consistently applied, into a local criminal statute,” BCAA attorney Evan Young argued. “To convert it from something very different from what the Legislature intended degrades and erodes the meaning of the act.”

Gov. Greg Abbott has stepped into the fight, submitting a brief in support of BCAA arguing that Houston's more stringent penalties could have "devastating" consequences for small businesses like dry cleaners and auto repair shops.

Higgason told the court Abbott's concerns are unfounded and don't speak to the actual content of the regulations.

“His brief is really addressed to what we might think of as low-hanging fruit,” Higgason told the court. “Those small businesses were under the city’s regulations before the 2007 amendments that are at issue here. That brief, I’m sorry to say, really just misses the whole point of this case.”

Higgason repeatedly argued that it was incumbent upon cities like Houston to enforce the clean air act where the state agency is unable to do so. “If the TCEQ is letting something go, and not enforcing its own standards, there’s something wrong with that,” Higgason said.

Justice Eva Guzman, a former Harris County district and appellate judge,  challenged his stance, asking if local actions might compromise the TCEQ’s right to use discretion in enforcement. She said the TCEQ’s sluggish ability to respond to air pollution violators was not necessarily Houston’s concern.

“When cities exercise their own discretion, that discretion could or could not be consistent with what the TCEQ would have done under their regime,” Guzman said. “It seems to me like that defeats your argument.”

Young emphasized that Houston was indeed allowed to enforce the state’s regulations — so long as it used the state’s preferred method of civil enforcement actions in civil courts.

In contrast, the Houston ordinances allow polluters to be charged in criminal courts, with convictions leading to a range of penalties including fines up to $2,000 per violation for repeat offenders.   

“If we’re going to have a statewide, uniform comprehensive regulatory regime that actually gives predictability, it is essential that the TCEQ be involved in that decision-making,” Young said. “If a city wants to enforce the regulations in court, it can do that — by bringing a civil suit.”

Young said the Legislature had specified what actions the city is allowed to take, and done so with the “unmistakable clarity” necessary to invalidate the Houston ordinances. The First District Court of Appeals, however, 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."

Justice Paul Green appeared to concur with Young’s analysis, expressing skepticism that the city’s enforcement policies and the state’s enforcement policies might be cumulative.

“An enforcement action in a municipal court is not a civil suit,” Green said. “It doesn’t appear to me that any of that is consistent with what the Clean Air Act provides for.”

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.

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