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Texas Supreme Court Rules Houston Overstepped in Regulating Air Pollution

In a victory for a coalition of large industrial facilities, the Texas Supreme Court ruled Friday that the city of Houston illegally subverted state law by passing two ordinances designed to regulate air pollution.

This flue gas scrubber, installed at a Valero refinery in Houston in 2006, reduces emissions of nitrogen oxide, sulfur dioxide and particulate matter.

In passing two ordinances designed to regulate air pollution, the city of Houston overstepped its authority and illegally subverted state law, the Texas Supreme Court ruled Friday. The ruling is a victory for a coalition of industrial facilities whose emissions were subject to inspection and possible prosecution by the city.

The case pit the BCCA Appeal Group, a coalition of companies including ExxonMobil, the Dow Chemical Company, and ConocoPhillips, against the city of Houston, which sought to penalize companies in criminal court when those companies violated state emission guidelines.

Attorneys for the city of Houston argued that the city was simply trying to enforce the standards set out by the Texas Commission on Environmental Quality, a state agency, by putting in place a parallel enforcement mechanism that would impose fines on the companies even if the Commission chose not to act.

“If the TCEQ is letting something go, and not enforcing its own standards, there’s something wrong with that,” attorney Robert Higgason told the justices in September.

In an 8-1 ruling Friday, the justices made it clear that they disagreed — saying that if the Commission chose not to enforce any given law, that did not clear the way for Houston authorities to do so.

“By authorizing criminal prosecution even when the TCEQ determines an administrative or civil remedy—or even no penalty at all—to be the appropriate remedy, the City effectively moots the TCEQ’s discretion and the TCEQ’s authority to select an enforcement mechanism,” Justice Paul Green wrote. “This is impermissible.”

The polluters are pretty well holding the reins in Texas and the industry is operating with near impunity in the state.— Adrian Shelley, executive director of Air Alliance Houston

If the Houston ordinances, which required polluters to register with the city and set fines for polluters who violated state guidelines, were to stand, that would also mean polluters might be treated inconsistently across the state, the justices said.

The ordinances removed “primary enforcement authority from the agency that can ensure consistent enforcement across the state,” Green wrote.

A request for comment from lawyers for the BCCA Appeal Group was not immediately returned Friday.

The BCCA Appeal Group had a number of high-profile supporters, including Gov. Greg Abbott, who warned that the Houston ordinances would have “devastating” consequences for small businesses like dry cleaners that also deal with chemical emissions.

But Adrian Shelley, executive director of the nonprofit organization Air Alliance Houston, said the ordinances were a necessary example of local control in a state that can’t or won’t enforce its own pollution laws.

“The polluters are pretty well holding the reins in Texas and the industry is operating with near impunity in the state,” Shelley said. “There are simply not enough resources in the state to keep up with all the facilities out there.”

Shelley also emphasized the TCEQ’s historical relationship with city officials. Until 2007, Houston contracted with the TCEQ to monitor polluters with city limits. City officials would regularly refer cases to the state agency, hoping the state would enforce penalties.

“The TCEQ acted in practice as if there were complementary authorities,” Shelley said.

In 2007, Houston officials stopped contracting with the state and passed the ordinances, which set up the enforcement structure BCCA Appeal Group sought to overturn.

Last June, Abbott signed legislation intended to make it tougher for local governments to file civil suits against big-time polluters. The bill was largely aimed at environmental prosecutors in Harris County, which receives about 1,500 citizen complaints about pollution each year.

Read MoreAbbott Signs Bill to Limit Pollution Lawsuits

Jim Malewitz contributed to this report.

Disclosure: Dow Chemical and Exxon Mobil have been financial supporters of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

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