Energy and Environment Reporting for Texas

Why a Bunch of Kids Are Suing the TCEQ

Photo by Mark Wilson/Getty Images

An oil refinery blow off stack in Texas City, Texas.

Last week, a Travis County district judge ruled in favor of a bunch of kids suing the Texas Commission on Environmental Quality. Three environmentally-minded minors and a young adult argued that Texas’ air should be protected under the public trust doctrine much like Texas’ water, and the Judge agreed.

In 2011, the youths drafted a petition alongside Kids Versus Global Warming, Our Children’s Trust, and other environmental groups in a national campaign to improve air quality in 49 states and the District of Columbia. In Texas, they requested that the Texas Commission for Environmental Quality (TCEQ) adopt a plan to slash carbon dioxide emissions to reduce climate change by making air part of the public trust. (The public trust doctrine says that certain resources should be protected by the government for public use.) When the TCEQ turned them down, saying that the proposed rules were a misreading of the public trust doctrine and would stifle business and industry in Texas, the kids sued.

Some of the children behind the suit are quite young. When the lawsuit was first brought against the TCEQ last July, one was in her mid-twenties, another was a teenager, and the other two were three and five. But Adam Abrams, an attorney at the Texas Environmental Law Center representing the minors, brushes this fact aside, claiming that the minors aren’t simply suing at the behest of their parents, Brigid Shea and Karin Ascot, who are prominent environmentalists.

“They’re not acting as proxies for their parents,” Abrams said in an interview with StateImpact Texas. “The parents are essentially asserting the rights of the children … If anything, the parents are just acting on behalf of the children and asserting the childrens’ right to a healthy, liveable planet.” 

In a letter explaining her ruling, which you can read in full below, Judge Gisela Triana shot down TCEQ’s claim that “the public trust doctrine is exclusively limited to the conservation of water.” The letter says that the Clean Air Act does not prevent states from enforcing tighter air quality protections.

But this doesn’t mean anything will necessarily change anytime soon. Triana also said that the Commission’s “refusal to exercise its authority” is reasonable given the backlog of other cases involving the TCEQ and “uncertain” legal landscape. That means it isn’t clear if, or when, the ruling would impact emissions in Texas.

And for now, the TCEQ isn’t saying much.

“We are reviewing the District Court’s July 9, 2012, letter. It appears that the Court intends to uphold the Agency’s decision,” TCEQ spokesperson Terry Clawson said in an email to StateImpact Texas. “Once the Court signs an order or final judgment, we will continue to evaluate the ruling,” he says.

In a story today, the Austin American-Statesman looks at just who’s behind the suit. Reporter Asher Price talks to Eamon Umphress, one of the complainants. He found that the 16 year-old likes more than just baseball, steel drum and Latin. He’s also deeply committed to the environment.

“I really feel like the environment is a nonrenewable resource we have to protect, in a way we can’t comprehend right now,” Umphress tells Price.

But a complicated appeals process looms ahead.

As outlined in the Statesman, the odds seem to be in TCEQ’s favor should the agency decide to appeal the ruling. Lots of similar suits in other states have been summarily dismissed. And it could go all the way to the Supreme Court of Texas. But Abrams of the Environmental Law Center disagrees with this outlook, saying that a few suits in other states might be more successful.

Abrams says that we can expect a ruling much like Triana’s in New Mexico where a judge has recently ruled in favor of the complainant on a motion to dismiss allowing a similar case to move forward.

While Triana’s ruling is not likely to affect the ongoing litigation between the TCEQ and the EPA surrounding the Clean Air Act, Abrams believes that it might serve as “persuasive authority” in areas falling under Triana’s jurisdiction.

“We need to take a conscious look at how we plan for our future and how we protect the public trust going forward. And climate change might not seem like a real threat now but it certainly will be later down the line. For the benefit of future generations, I think we need to start addressing it right now,” Abrams says.

As for the ruling’s lasting effects, Abrams claims that it’s still too early to predict consequences. First, an order will have to be drawn up and signed. Then the next move rests with the TCEQ should the agency decide to appeal the ruling. But in round one at least, the kids seem to be victorious.

Read the full letter announcing Judge Triana’s ruling:

Sheyda Aboii is an intern with StateImpact Texas.


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