How Texas Lawmakers and Industry Have Weakened Citizens’ Rights to Fight Pollution – The Texas Observer

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At the behest of the industry, legislators have chipped away at the environmental permitting process in Texas, stacking the deck against concerned people protesting industrial projects.

Steam is released out of the Valero Refinery in Houston in 2018.

Steam is released out of the Valero Refinery in Houston in 2018. Elizabeth Conley/Houston Chronicle via AP

In 2008, Chase Power Development LLC, a Houston-based energy company, made plans to build a coal-fired power plant in the coastal Texas city of Corpus Christi. The Las Brisas Energy Center would be a 1,320-megawatt power plant producing electricity for 650,000 homes, one of 17 coal-fired power plants proposed for construction in the state. Then-Governor Rick Perry supported the plans for a statewide coal buildout, ordering state regulators to fast-track the permit approval process required to get them up and running. But Chase Power had a problem.

Residents of Corpus Christi were already inundated with smog and noxious gases from refineries and ship traffic and, despite the city council’s support of the project, many residents weren’t keen on more air pollution. With the help of medical and environmental groups, they urged the Texas Commission on Environmental Quality (TCEQ) to reject the proposal. In 2009, due to public outcry, TCEQ forwarded the case to an independent court for consideration and a judge recommended that the permit be rejected. TCEQ approved the Las Brisas permit anyway, but the project fizzled when a district judge found that the proposed plant failed to meet requirements of the federal Clean Air Act.

In the aftermath, Chase Power complained about the “regulatory obstacles” that scuttled its Las Brisas project, but those so-called obstacles represent the few tools residents have to combat a massive industrial development in their community. Over the past five years, those tools have become less useful as companies and industry-friendly legislators work to erode their power.

In Texas, when a company seeks to build a refinery, a natural gas export terminal, a landfill, or another large-scale industrial project, it must submit an application to TCEQ for air or water pollution and waste. Filing an application triggers a notification, usually in a local newspaper, alerting residents that concerns about the project can be submitted to the agency. When interest is high enough, a public meeting can be held. In rare cases, a judicial hearing is convened, as was the case with Las Brisas, where a judge hears arguments and makes a recommendation to the agency. Texas created the system in 1999 as a way to balance economic growth in the state with the concerns of residents who would be forced to live near big polluters.

But industry players say the environmental permitting process can delay large projects, prompting lawmakers and trade groups to try to dismantle it in virtually every legislative session for the last 20 years. Since 2015, legislators have successfully shortened the duration of hearings and comment periods, along with making it more difficult for opponents to effectively argue their cases. The result is a process that increasingly favors industry over the public by limiting the public’s ability to voice their concerns.

“In many cases this is going to be the only opportunity for people impacted to weigh in,” says Ilan Levin, associate director of the Environmental Integrity Project. “These industries have been successful in really tightening up not just the rules but the state’s policy … and not [letting] people participate. It’s a bad trend.”

Numbers provided by TCEQ indicate the agency fielded 8,920 waste, water, and air permit applications last year. Of those, 788 applications, or 9 percent, were subject to independent hearings—the projects most in danger of being sped along by erosions to the permitting process.

Environmental advocates point to a conflict between residents and a mining company in Comal County, northeast of San Antonio, as an example of how the changes have weakened public participation in industrial projects. In 2017, Alabama-based Vulcan Materials proposed building a 1,500-acre rock quarry between Bulverde and New Braunfels to extract and crush limestone. Residents quickly expressed concern over anticipated dust and heavy truck traffic and the possibility of groundwater contamination in the region, where rainfall refills the Edwards Aquifer. At a 2018 public meeting, residents implored TCEQ to reject Vulcan’s application for a permit. “Vulcan can’t be trusted to protect our natural resources or our health,” one resident told the commission.

The proposal was heard a year later in what is known as a “contested case hearing,” a legal proceeding overseen by an administrative law judge with the State Office of Administrative Hearings. The hearing represented the residents’ last opportunity to stop the mine through the state permitting system. But in September 2019, the judge ruled against them, recommending that TCEQ allow the project to go forward.

Eric Allman, an attorney who specializes in environmental permitting and represented some of the landowners in Comal County, said that residents had a strong case against Vulcan, but the company had the law on their side.

In the 2015 legislative session, lawmakers passed Senate Bill 709, which restricted contested case proceedings to no more than 180 days after a preliminary hearing. In short, the law said that a hearing can last only six months, even if it would take longer for opponents to fully review documents in a case. Proponents of the bill said the change was needed because environmentalists were tying up big-money projects for years in administrative courts and pushing industry to other states. “We are at a serious disadvantage because of the length of time it takes to get a permit for any major project,” said state Representative Geanie Morrison, a Republican from Victoria who authored the bill’s House companion.

At a hearing on the bill, Hector Rivero, president of the Texas Chemical Council, agreed that the slowdowns were costing the state lucrative industrial development and jobs. The Texas Chemical Council is among the most powerful trade associations in the state, representing ExxonMobil, BASF Corporation, and Dow Chemical Company, among others.

“The biggest barrier for our industries to realize this investment has been the delay in obtaining environmental permits,” Rivero told lawmakers. “The process is being abused by some who simply do not support business growth in our state and are using it as a delay tactic to thwart this investment.” Environmentalists fired back: The state’s permitting process provided a crucial safeguard in preventing pollution, along with giving impacted residents an opportunity to voice concerns. They also pointed out the rarity of contested case hearings—according to TCEQ, of the 788 permit applications subjected to hearings in 2019, only two saw full hearings.

The bill was signed into law, forcing a six-month limit on hearings such as the one in Comal County. Allman says that the accelerated timeline made reviewing documents in the case more difficult. “You don’t know what more would have been discovered if time had been allowed to develop that information,” he says. After an administrative judge ruled against them, Comal County residents resorted to suing TCEQ itself in February, claiming that the agency did not properly vet Vulcan’s application.

More attempts to limit public opposition to industrial developments have been made in subsequent legislative sessions. In 2017, former state Senator Craig Estes, a Republican from Wichita Falls, passed a bill to shorten the period of time the public can make comments on certain air pollution permits from 45 days to 30. Last year, state Representative Kyle Kacal, a Republican from Bryan, proposed a bill to move contested case hearings on environmental permits from the independent State Office of Environmental Hearings to TCEQ, despite the fact that the agency has been notoriously friendly to big industry in the past.

In a statement, Rivero of the Texas Chemical Council said limitations placed on the state’s environmental permitting process have been a boon for business. The 2015 bill alone “has attracted billions in new business investment, state and local tax-base, and created more than 100,000 new high paying Texas jobs,” Rivero says. Council spokesperson Mike Meroney declined to provide examples of industrial projects that would have been lost to other states had the bill not passed. “We’ll let the numbers speak for themselves,” Meroney said.

TCEQ—an agency that has referred to the industry it regulates as “customers” and is loath to punish polluters—has also made life harder for citizens opposing projects. For example, when determining whether a concerned person qualifies as an “affected party” in a case, the agency appears to fixate on whether residents live in very close proximity to the project, even when evidence shows pollution may still affect people farther away.

That was partly the criteria TCEQ used to deny contested case hearings requested by the town of Port Isabel and the colonia of Laguna Heights when two developers proposed building massive liquified natural gas terminals in the Rio Grande Valley in 2017. The agency’s criteria was so strict that it denied Port Isabel’s request even though the city operates an animal shelter and police training facility within a mile of one of the two proposed sites. The agency also failed to translate some public notices or hold public hearings in Spanish, keeping a large population of potentially affected residents in the dark, says Bekah Hinojosa, a Sierra Club organizer based in Brownsville. “There were a lot of flaws in the TCEQ process,” she says. A TCEQ spokesperson says “the public participation process” was followed in the two cases but declined to comment further.

As the state continues to help industrial projects off the ground, more contentious permit applications are in the pipeline. In Austin, a landfill operator near Austin-Bergstrom International Airport wants to extend the dump closer to the airport’s landing strips, a change that pilots say will increase the likelihood of planes striking birds that frequent the landfill. In Caldwell County between Austin and San Antonio, landowners are rallying against a proposed wastewater treatment plant they fear could contaminate their water wells. Environmental advocates say they hope even the weakened state rules will still give project opponents a fighting chance in Texas.

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