Texas’ environmental regulators need to get tougher on polluters, group of lawmakers says

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The Texas Commission on Environmental Quality needs to improve how it holds frequent polluters accountable, a state review of the agency’s effectiveness has found.

A commission that looks at how state agencies perform their duties recommended Thursday that the Legislature require the TCEQ to focus enforcement procedures on repeat violators and big offenders. That recommendation — and others — came after a state report earlier this year concluded that TCEQ commissioners have become “reluctant” to regulate industry, often delegating decisions to agency staff or “encouraging industry members to self-govern and self-police.”

Those recommendations and findings came from the Texas Sunset Advisory Commission, a group of 10 state lawmakers and two members of the public who periodically review all state agencies. It’s been more than a decade since the commission last reviewed how TCEQ operates.

TCEQ regulates air, water and land pollution and had a $429 million budget in 2021; it oversees more than 250,000 permits ranging from small-scale landscape irrigation to major petrochemical plants.

The sunset commission also recommended TCEQ review and potentially suspend a regulated facility’s compliance history rating in the event that an emergency event causes death or injury. This would create additional barriers to receiving permits for companies that have had fires or explosions.

The sunset commission called for state lawmakers to pass legislation next session to increase penalty levels for industrial facilities that were not complying with state regulations from $25,000 per day to $40,000. Commission member Nathan Johnson, a Democratic state senator from Dallas, unsuccessfully pushed for that fine to be $50,000 per day.

“I think people wanted to send a message that we were cognizant of the burden upon industry while also recognizing the importance of increasing the penalty after this period of time so that the TCEQ has the power and the tools to actually enforce compliance with its rules,” Johnson said.

The sunset commission report earlier this year also said several transparency problems that have contributed to an overall public distrust of the agency.

Sunset commissioners on Thursday also recommended that TCEQ increase the notice it gives the public about its meetings and increase the period during which people can comment on agency matters to 36 hours after the end of a public meeting.

“One thing we have found working with community members is that they often don’t know anything about the facility until they are at the [TCEQ] meeting,” Adrian Shelley, Texas director of the government watchdog group Public Citizen said. “And when they do it’s too late [to share input]. Even giving the public an extra 36 hours — that is a great step.”

For years, TCEQ has been criticized by Democrats and environmental advocates as being too industry friendly. Since 2021, TCEQ has been ensnared in three different civil rights investigations by the U.S. Environmental Protection Agency following allegations by environmental groups that Texas had discriminated on the basis of race in its permitting of industrial pollution.

Most recently, the EPA launched a civil rights investigation into Texas’ permitting of concrete batch plants after the Harris County Attorney and a legal aid group alleged TCEQ discriminated against racial and ethnic minorities and those with limited English proficiency.

In June, about 100 Houston residents traveled to the Texas Capitol to protest TCEQ’s decision to allow industrial plants, in particular concrete batch plants, to open in their predominantly Black and Latino communities. The EPA has found that batch plants pollute the air with particulate matter, which increases the risk of asthma attacks and cardiac arrest if too much is inhaled.

Residents near such plants — often built in areas populated by communities of color — also complain about the noise and traffic from heavy trucks driving through their neighborhoods.

TCEQ Commissioner Jon Niermann said the agency’s permitting decisions could not be racist because the TCEQ does not choose the location of industrial facilities.

TCEQ Executive Director Toby Baker wrote in a June letter that the agency “questions some of the word choices and opinions” in the Sunset staff’s report but said TCEQ agreed with the call to improve the agency’s transparency, especially in improving its website.

The sunset commission also recommended virtual and in-person meetings for TCEQ meetings. And it directed TCEQ to give the Legislature a report detailing how it will enhance public participation and language access and develop Spanish language versions of its online form through which individuals may submit a complaint.

Environmental advocacy groups across the state including the Sierra Club, Public Citizen, and Air Alliance Houston have said people distrust TCEQ due to “their poor transparency, a lack of meaningful public input, and a spotty environmental enforcement record.”

They said in an email that “the Sunset Staff and Commissioners missed an opportunity to make bold recommendations and changes that would regain public trust and improve community protection” but support most of “the relatively modest recommendations.”

During the next legislative session that begins in January, state lawmakers will consider the Sunset Commission’s recommendations and propose bills to fix issues identified during the review.

Disclosure: Air Alliance Houston has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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