Bill Would Overhaul How Pollution Permits are Fought in Texas

Photo by Mose Buchele for StateImpact Texas.

Seated at center, State Sen. Troy Fraser (R-Horshoe Bay) hears testimony on his bill to end contested hearings at the TCEQ.

Update, April 16, 2013: The Senate Natural Resources Committee voted 6-3 in favor of the bill, SB 957, today. Senators Nichols, Seliger, Eltife, Hegar, Estes and Fraser voted in favor of the bill, while Senators Duncan, Ellis and Uresti voted against it. Two Senators were absent. The bill now heads for to the Senate floor.

Original story, March 20, 2013:

It’s a familiar story. A landfill, a power plant, or maybe a factory wants to open in Texas. Members of the surrounding community protest, fearing the environmental impacts. Their challenge goes before an administrative law judge, who passes his or her decision back to the Texas Commission on Environmental Quality (TCEQ).

Now, a bill at the state capitol would dramatically change that process.

Under Senate Bill 957, authored by State Sen. Troy Fraser, R-Horshoe Bay, contested hearings for permits issued by the the Texas Commission on Environmental Quality would end. The hearings, although only applied in about one percent of permit applications, according to both supporters and detractors of the bill, have been a standard way for people to fight permits issued at the TCEQ.

They operate something like a trial. Companies and protesters give evidence, and cross-examine each other in front of an administrative law judge at the State Office of Administrative Hearings. Business groups say the hearings are used as a blunt instrument by environmentalists to drag out the permitting process and delay new development. Environmental groups and some property owners say the hearings serve as the best check against improper permitting in a state as industry-friendly as Texas.

Eric Allmon is an environmental lawyer who once represented a family in Colorado County that didn’t want sludge poured on a property nearby.

“It was only through a contested case hearing that we were able to show exactly how deficient the application was, at which point the application was withdrawn,” Allmon told StateImpact Texas after a State Senate Natural Resources Committee hearing on the bill Tuesday.

More often, protestors arrive at settlements with companies.

‘Opportunity to be Heard’ or ‘Abuse of the Process’?

That’s what happened in Castroville, Texas, where a coalition of residents and environmental groups took the City of Castroville to a contested hearing over plans to pump waste water into the Medina River.

Photo by Mose Buchele

John Hall and Birdy Wagner fought used a contested hearing to fight a city's plan to dump waste water in the Medina River.

“In our case there was a lot of negotiation, a lot of people came to the table,” Birdy Wagner, who fought the plans and also testified against SB 957, told StateImpact Texas. “It gave us a lot of opportunity to be heard.”

In the end, the City agreed to reduce waste discharge into the river.

“What we’re always asking for is not the minimum quality standards that the TCEQ rubber-stamped, we wanted the city to build a better quality plant. And that’s better for Texas period,” Wagner said.

But, that’s exactly the problem, according to others.

“You have a lot of people say ‘the value of this process is it brings people to the negotiating table and we get to reach agreement on what is a better permit.’ Well yes it does that,” Steven Minick, Vice President of Government Affairs for the Texas Association of Business told StateImpact Texas.

“But the problem is you end up with a permit that exceeds what the law requires me to do as a property owner, and that to me is an abuse of the process.”

Of Competition and Constituents

Minick and lobbyists for other business groups voiced support for the plan to overhaul the system. They said the bill would still allow protestors to offer evidence against a TCEQ permit. But, Minick concedes, the new system would strip some of the “trial like” elements to the process. The bill would also make hearings optional.

All that, he says, will make Texas more business-friendly.

“We know for a fact that others states have figured out in Texas it takes forever to get a permit,” said Minick. He says that puts the state at a disadvantage.

The tension between giving voice to constituents, and making Texas ever more competitive was on display at the hearing Tuesday. Lawmakers were reminded repeatedly of instances when their own constituents used the contested hearing process to challenge polluting projects in their districts.

State Sen. Glenn Hegar, R-Katy, said he’s seen some companies head across the border because it can issue permits faster than Texas.

“We lose specifically to Louisiana or to another state because we cannot get certainty quick enough,” he said from from the dais.

But he also heard testimony against the bill from local politicians from within his district.

One of them was Michael Wolfe, Mayor of Hempstead, Texas, where residents are fighting a landfill project through a contested hearing.

“My major concern is that you will hear the mindset of the people who are against this Senate bill and the almost 6,000 residents of our city,” Mayor Wolfe said. “At this point I haven’t currently talked to a single representative who is for it.”

At another point in the hearing State Sen. Hegar asked Cyrus Reed of the Lone Star Sierra Club, if he understood how the permitting process could hinder the state’s competitiveness.

“It may be advantageous to some industries to move to China cause they don’t have the same environmental regulations we do. But we don’t want the environmental regulations that China has,” Reed replied.