Big Oil Lawsuit Challenges Houston’s Right to Enforce Air Laws

Clean air laws are under attack in Houston.

As Houston Public Media reported on Monday, oil and gas companies have a lawsuit before the Texas Supreme Court challenging the City of Houston’s right to enforce the Texas Clean Air Act. If the Court decides that only the Texas Commission on Environmental Quality (TCEQ) can enforce the law, Houstonians will lose much of their clean air protections.

Right now in Houston, it is the City of Houston, rather than the TCEQ, that enforces most of our clean air laws. The City conducts inspections, investigates citizen complaints, and issues enforcement actions.

Authority for this work is found in the City Code of Ordinances, which has adopted wholesale the provisions of the Texas Clean Air Act. (See Chapter 21, Article VI.) The Texas Clean Air Act explicitly provides for enforcement at the municipal level. (See Section 382.111(a)(1)(B).) The Texas Commission on Environmental Quality also explicitly provides for local government authority in its State Implementation Plan (SIP). Texas’s SIP, which implements the requirements of the Federal Clean Air Act, states that “a city or town may enact and enforce ordinances for the control and abatement of air pollution not inconsistent with the provisions of the TCAA and the rules or orders of the Commission.” (See Section V: Legal Authority.)

Now polluters are challenging the City’s right to enforce Texas’ air laws. If the Supreme Court takes away this right, the TCEQ will have to step in for the City of Houston.

Big polluters are no doubt counting on a more lax regulatory environment under the TCEQ. The TCEQ is a massive agency, with a 2015 budget of more than $356 million. Fully $55 million of that is dedicated to enforcement and compliance, funding 51,642 inspections and investigations each year (11,177 air sites; 28,600 water rights sites; and 11,865 water facilities). (See General Appropriations Act 2014-15.) This sounds like a lot, but there are tens of thousands of regulated facilities throughout Texas. A TCEQ Central Registry query for regulated entities in Harris County alone returns 62,602 entries.

In Houston, if you call the TCEQ with a complaint about a facility, you are likely to be referred right back to the City of Houston. I have personally been told by TCEQ that, “The City of Houston handles enforcement issues within its borders.”

If the City of Houston loses the right to enforce clean air laws, Houstonians can expect enforcement to slow and air quality to decline. We don’t want that to happen. The City of Houston has asked Air Alliance Houston to submit a “friend of the court” brief to the Texas Supreme Court supporting the City’s right to enforce clean air laws in Houston. We will be joined on this brief by our colleagues at American Lung Association and the Environmental Integrity Project.

Together, we call on the Texas Supreme Court to defend clean air in Texas.