With Harris County in its crosshairs, the Senate on Wednesday tentatively approved legislation that could make it tougher for Texas Counties to sue big-time polluters.
If finally passed, House Bill 1794 would notch another victory for a wide range of business groups in a legislative session that’s been kind to industry at the expense of environmentalists and advocates for local control. The proposal would set a 5-year statute of limitations and cap payouts at about $2 million when counties sue companies that have fouled their water or air.
A 24-6 vote with no debate set the bill up for a final Senate vote. The legislation already sailed through the House, pushed by Rep. Charlie Geren, R-Fort Worth.
Proponents say that curbing civil penalties assessed on top of those doled out by state regulators would bolster economic certainty for companies and allow them to focus resources on cleaning up their messes.
“This bill is about enforcing a policy that encourages people to do the right thing and not punish them,” said Sen. Kelly Hancock, R-North Richland Hills, who carried the proposal in the chamber.
But critics say the Texas Commission on Environmental Quality (TCEQ) doesn’t do enough to hold polluters accountable, and that limiting local suits would encourage more pollution that jeopardizes public health.
“It is a terrible bill, and it is designed to protect polluters,” said Terry O’Rourke, special counsel with the Harris County Attorney’s office. “That’s all it is: It is a polluter protection bill.”
Under HB 1794, local governments and the state would evenly split the first $4.3 million awarded in a suit, and the state would pocket any amount above that limit.
County officials say the cap on local government collections would make it difficult, if not impossible to prosecute the most complex, egregious cases of pollution, because contingency fee lawyers would not sign on for such lower pay.
The counties, not the state typically initiate such actions, said O’Rourke, who has been prosecuting environmental cases since 1973.
“It is only by contingent fee litigation that you can prosecute global corporations that are operating in Houston – Harris County, he said. “You can’t attract people to that if you’re going to kill them with contamination.”
Anyone who thinks that this bill will be any kind of positive for counties – not just Harris, though it is the main target of this bill – is living in a fantasyland where voluntary compliance with environmental regulations would be sufficient. I’ve said it before and I’ll say it again, if the TCEQ wasn’t a giant bag of industry-coddling suck, then lawsuits like these wouldn’t be necessary. All this will do is push the cost of pollution from the polluters where it belongs to the population at large. Hope no one reading this lives close to a site that won’t get cleaned up now.
And it’s not just county governments that are taking it in the shorts.
Norman Adams isn’t the kind of guy who is sensitive to smells, or much else. He wears cowboy boots and boasts of changing lots of his children’s and grandchildren’s diapers without gagging.
But the smell that wafts on the southerly breeze from a waste treatment processor toward buildings he owns on West 11th Street is “like an open septic tank, or worse.”
“Abusive,” he called the stench in a letter to the Texas Commission on Environmental Quality opposing an application by Southwaste Disposal, to increase capacity at its liquid waste treatment facility near Houston’s booming Timbergrove neighborhood.
Adams begged regulators not to grant the expansion, instead requesting a “contested case hearing.” Such proceedings allow citizens who convince TCEQ that their health or pocketbook would be impacted by a permit to compel the company to demonstrate it can comply with environmental requirements.
But legislation awaiting Gov. Greg Abbott’s signature would make industry-friendly changes to the proceedings. It would set time lines to speed up the process, restrict who qualifies to ask for hearings and – most significantly – shift the burden of proof from companies seeking the permits to people opposing them.
The bills, which sailed through the Senate and House, have the backing of industry leaders who say contested case hearings make it harder for Texas to attract businesses by injecting uncertainty and expense into the process.
The bills tilt “the balance in favor of the polluters,” said Jim Marston, regional director with the Environmental Defense Fund’s Texas office. He also warned that Texas could jeopardize losing the Environmental Protection Agency’s authorization to administer permitting programs if signs the bills.
EPA spokesman Joe Hubbard on Tuesday said the legislation creates a “problematic” legal presumption. “We can’t speculate what action the (EPA) should take if the bills are passed and signed into state law,” he said.
See here and here for the background. I’d feel sorry for Norman Adams, but he’s a well-known Republican activist, so in a very real sense he’s getting the government he deserves. I do feel sorry for his neighbors, and for everyone else that will be put in this position. In Houston, where residential development is encroaching on former (and sometimes still active) industrial areas, that could be a lot of people. But hey, at least our ability to attract more pollution-oriented businesses will remain strong.