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Federal complaint filed over I-45 project

Missed this in the barrage of news from the last few days.

Critics of the plan to remake Interstate 45 north of downtown Houston filed a nearly 100-page complaint to federal officials Thursday, urging even greater scrutiny of the project’s effects on minority communities, an analysis they say state highway officials consistently have avoided.

In the complaint, filed with the Federal Highway Administration, opponents of the current project accuse the Texas Department of Transportation of spending years promoting and designing a project that residents consistently told them would tear the fabric of nearby neighborhoods. Many of those neighborhoods are majority Black and Latino communities, the complaint notes, which TxDOT failed to adequately consider.

“Throughout the… planning process, which has gone on for almost 20 years, less-discriminatory alternatives have been raised by multiple stakeholders, but TxDOT has repeatedly rejected those alternatives and clung to a project that imposes highly disproportionate and adverse effects on Black and Hispanic/Latinx neighborhoods, compounding its previous discriminatory actions and the disproportionate effects of bulldozing highways through these neighborhoods originally,” the complaint stated.

The complaint was filed by Air Alliance Houston, LINK Houston, Stop TxDOT I-45, Texas Housers and Texas Appleseed. All have been active with residents in opposing the I-45 project, estimated to cost at least $10 billion.

In a statement, TxDOT Chief Communications Officer Bob Kaufman said officials were “continuing to work with FHWA to resolve any areas of concern that they may have.”

“That said,” Kaufman continued in an emailed statement, “most people who have been following this project know that the I-45 improvement project will create major safety and operational improvements to an old and congested corridor along with quality of life enhancements for residents, businesses and others.”

In addition to halting the project and asking for reconsideration of many of TxDOT’s findings and proposals to remedy the environmental effects of the project — including its effect on minority communities — the complaint asks for the Department of Justice to “play an active role in coordinating this federal investigation and any enforcement actions.”

See here and here for some background, and here for a copy of the complaint. I had wondered what the purpose of this was, given that the FHWA is already doing an investigation, and my questions were answered in the press release.

This additional complaint is necessary because TxDOT has continued to discriminate on the basis of race, color, and national origin — even after FHWA initiated a Title VI investigation — and has retaliated against persons and groups for filing previous civil rights complaints by threatening to remove funding from the Houston-Galveston region altogether if the agency is not allowed to construct its preferred version of the NHHIP.

“TxDOT has known for more than a decade that this project would severely and disproportionately harm Black and Hispanic-Latinx communities,” said Madison Sloan, Director of Disaster Recovery and Fair Housing at Texas Appleseed, “yet it has deliberately continued to approve this discriminatory project over and over. Now TxDOT is threatening to reallocate billions of dollars because local communities dared to push back.”

TxDOT’s planned expansion will demolish thousands of homes and businesses, and displace thousands of families. “It’s racially unjust,” said Susan Graham, co-founder of Stop TxDOT I-45. “Families have worked for generations to own their homes, and TxDOT is just going to strip away the wealth they worked so hard for. You can’t find affordable housing in Houston as it is. Where are people going to go?”

“The health impact of increased traffic air pollution will last for generations,” Harrison Humphreys, Transportation Program Manager with Air Alliance Houston, said. “Children are particularly vulnerable to negative health effects like asthma, and the expansion of I-45 will increase the number of cars on the road while moving the highway closer to schools and day care centers. In addition to deeply affecting the lived environment of adjacent communities, TxDOT’s designs are antithetical to the City’s and the country’s climate change mitigation goals.”

Those are some serious allegations. I have no idea how this will be handled, what the timeline might be, whether there have been similar complaints lodged against transportation agencies with other projects, or how this may affect this project. It sure would be nice to know more about those and other questions.

There’s a real lack of consensus about the I-45 project

It seems unlikely that TxDOT could just throw up its hands and walk away from this, but it’s at least a possible scenario.

A proposed agreement devised to bring planners and critics of a massive redesign of Interstate 45 together has left officials in many ways further apart and opponents with a chance to convince more people the $8 billion project is stuck in the past.

No one is pulling the plug on the freeway rebuild or its design, but transportation officials said the lack of consensus between the Texas Department of Transportation, Harris County, Houston and the Houston-Galveston Area Council’s Transportation Policy Council has the region’s largest-ever freeway rebuild at a crossroads. It is a hurdle a proposed memorandum of understanding was intended to clear, but the various agencies could not even agree on the agreement.

Transportation Policy Council members tabled a resolution last Friday after TxDOT said that even voting on an agreement that had no legally binding effect could complicate the project. That left some officials struggling to understand how various concerns about the project can even be addressed.

“I think it is a huge black mark on TPC and H-GAC that after all of this work and all of this community involvement nothing happens,” said Carrin Patman, chairwoman of the Metropolitan Transit Authority and a member of the committee that worked on the now-scuttled agreement. “I just can’t imagine this thing foundering at this point and how it will affect the public’s perception.”

[…]

The Transportation Policy Council, which doles out federal money for highways and must include the project in its spending plans for the next decade, brought TxDOT and others together in June 2020 to create an agreement outlining what each hoped to gain from the project and some outline of the design’s goals. A committee was formed to develop a memorandum of understanding, an agreement between the entities outlining what they jointly commit to and who is responsible for certain particulars. The committee was headed by Carol Lewis, director of Texas Southern University’s Center for Transportation Training and Research.

Lewis said the various groups achieved a lot, developing what she called a framework from which to build consensus even with “extremes of positions” among TxDOT and the project’s critics.

“The opinions were not necessarily all aligned but we got to a good place,” Lewis said.

TxDOT’s legal review, however, called for sweeping changes, eliminating any part of the proposed agreement that conflicted with the current environmental plan. Otherwise, lawyers concluded, TxDOT would not able to sign a deal that differs with what it proposed to federal officials.

Unable to get a firm, binding agreement, Lewis said the committee sought a resolution that would go to H-GAC’s transportation council. The reasoning was that a resolution could at least serve as a guidepost of what everyone wanted to achieve.

Even that ran into opposition from TxDOT. The concern, state officials said, is a resolution would send mixed signals that the project did not have regional support, although the transportation council’s 10-year plan has set aside money for it.

In a statement some said boded ominously, [TxDOT Houston District Engineer Eliza] Paul noted if the Houston area slowed or stopped its support of the project, it could lose its place in line for state funding.

“I know TxDOT is not going to let the $8 billion sit around until we know what we are going to do,” Paul said.

I don’t know what to make of that, so go read the rest. As noted in the last update, Harris County and the city of Houston oppose the design as it is now but still want to see the project work. Other groups like LINK Houston, Air Alliance Houston, and Stop I-45 are firmly in opposition, and there’s some hope among them that this could be a way to kill the project. I have a hard time believing that, but given how long this idea has been in the works, I could imagine it being delayed for another few years, with the current pot of money being re-apportioned. The TPC has another meeting in late February to try again with this resolution, so we’ll see if they’ve made any progress on it by then.

The next phase of the I-45 fight is about to begin

Where it goes from here is still up in the air. The opening of this story was at a rally on Sunday that opposed the current I-45 plan.

The rally, part of a flurry of events from concerts to block-walking that members of Stop I-45 have organized, comes days before the deadline for comments on the $7 billion plan to remake I-45 and the downtown freeway system. Comments on the final environmental report are due to the Texas Department of Transportation’s Houston office by Wednesday.

Construction on segments, starting downtown, could start as soon as late 2021.

In advance of the deadline, groups such as LINK Houston and Air Alliance Houston that have opposed the project have mobilized online efforts to solicit comments and even petition local elected officials to oppose it.

“We’re going to do whatever we can,” said Susan Graham, organizer of the Stop I-45 group. “We’re calling elected officials. We’re set to speak at City Council on Tuesday. If there’s something we can do, we’re going to do it, but we can’t do anything unless people show up.”

Scores of groups and individuals, including the city’s planning department, plan responses in their last chance to comment. Elected officials, notably County Commissioners Adrian Garcia and Rodney Ellis, are also increasing their criticism of the plan.

“They want to continue to do the same old, same old, but that dog won’t hunt,” Garcia said of TxDOT’s plan. “We need to make sure they understand it is about the future, not what used to be.”

TxDOT and some supporters also have coalesced, with TxDOT releasing its own documents online and groups such as the NAACP and North Houston Association submitting comments at recent meetings in the Houston area and with the Texas Transportation Commission in Austin, which oversees TxDOT.

Certification of the project’s environmental process is not the end of the discussions or opportunities to address concerns, but it largely gives TxDOT the approval to proceed. Most of the money comes from state transportation funds, though about $100 million in locally controlled money is budgeted; members of the the Houston-Galveston Area Council’s Transportation Policy Council can rescind it.

To address concerns raised by Harris County and Houston officials — who in the past year began to rethink their support of the project — H-GAC sought to craft a deal outlining what state and local officials hope to accomplish with the freeway rebuild. That memorandum of agreement between TxDOT, Houston, Harris County, H-GAC and the Metropolitan Transit Authority would allow all of the groups to have a single set of goals to achieve.

As that agreement has taken shape, however, much of the binding language H-GAC staff started with has been watered down, at the behest of TxDOT lawyers. For example, the original introduction said areas where the freeway fails to meet modern standards “must be corrected.” Now it reads “should be improved.”

TxDOT lawyers also inserted language stating the environmental review supersedes any agreements, in effect noting that the federal process governs how a freeway is designed.

“TxDOT’s legal obligations under the (federal environmental) process remain unchanged, and nothing in this document commits or obligates any party to any action against, or in addition, to those obligations,” lawyers wrote.

Susan Graham, quoted in the excerpt above, had a recent op-ed that outlined the opposition to the project, the bulk of which is that TxDOT has not adequately taken into account the concerns and the input from the people and communities that would be most directly affected by the rebuild. I’m sure TxDOT would say they’ve bent over backwards to provide opportunities to give feedback and that they have listened and adjusted as much as they can. I feel like this project has been looming over all of us who live within a mile or so of I-45, and while it has gotten better, there’s only so much you can do to mitigate its effects. I think the opposition has the stronger argument, and if TxDOT can’t stick to the agreement that H-GAC hammered out about consensus goals for the project, then maybe this project isn’t worth doing. Or at least, it’s not worth doing the way it’s currently set up to be done.

Houston’s Climate Action Plan

We have one, with goals for 2050.

Houston’s first Climate Action Plan calls on the city’s 4,600 energy companies to lead the transition to renewable sources, while residents are asked to swap car rides for mass transit and work to cut down on the estimated seven pounds of waste each person discards every day.

The plan also calls for the city to adopt a new building code and develop a long-range plan for its waste collection system as part of a broad-based effort to reach carbon neutrality by 2050.

The 97-page plan, in the works for more than a year and published online Wednesday, is a strategy, not an ordinance, so it does not enforce any new rules. Instead, it identifies four areas to target emission reductions: transportation, energy transition, building optimization and materials management. It also identifies goals, strategies and targets for residents, businesses and the city to follow in each of those areas.

For example, the section on transportation, which accounts for nearly half of emissions here, includes a goal to shift the regional fleet to electric and low-emission vehicles. It lays out targets to get there, such as converting all non-emergency municipal vehicles by 2030, and increasing incentives and infrastructure for the private sector to do the same.

The section on energy transition includes the production of 5 million megawatt hours of solar power by 2050. It calls for the city to power municipal operations entirely with renewable sources by 2025, and it proposes training private businesses and property owners on how to adopt solar power on their rooftops.

Nearly all of the 34 million metric tons of carbon that Houston emitted in 2014, the baseline year for such calculations, came from transportation and energy that powers homes, businesses and institutions, the plan says.

Those strategies are tailored to Houston, said Lara Cottingham, the city’s chief sustainability officer and lead author of the plan. The city, she said, does not have the same tools as the state or federal governments or even other cities, such as San Antonio and Austin, to combat climate change. It has very little authority to regulate the oil and gas industry, and it does not have a city-owned electric utility.

That means the plan requires buy-in from businesses and residents to take initiative themselves, Cottingham said.

“The Climate Action Plan is a good combination of ambitious goals and common-sense solutions,” she said. “We don’t have all the answers, and that’s OK. We do know that science is behind us and technology is on our side. What is important is that every single one of us does our part.”

You can see the plan here. The story notes that there’s a broad range of support behind the plan, but also a lot of emphasis from supporters that this is just a first step. I agree with the Air Alliance Houston statement on the plan, which urges the city to collaborate with Harris County to expand this into more of a regional initiative. In the short term, I’d really like to see some action on solar power, with options to make financing for home solar panels widely available. This is very much a collective action problem, and I’m glad to see the city commit to doing its part. It’s on the rest of us to make sure they follow through.

Houston’s anti-pollution ordinance killed by Supreme Court

Alas.

Bill White

Bill White

In passing two ordinances designed to regulate air pollution, the city of Houston overstepped its authority and illegally subverted state law, the Texas Supreme Court ruled Friday. The ruling is a victory for a coalition of industrial facilities whose emissions were subject to inspection and possible prosecution by the city.

The case pit the BCCA Appeal Group, a coalition of companies including ExxonMobil, the Dow Chemical Company, and ConocoPhillips, against the city of Houston, which sought to penalize companies in criminal court when those companies violated state emission guidelines.

Attorneys for the city of Houston argued that the city was simply trying to enforce the standards set out by the Texas Commission on Environmental Quality, a state agency, by putting in place a parallel enforcement mechanism that would impose fines on the companies even if the Commission chose not to act.

“If the TCEQ is letting something go, and not enforcing its own standards, there’s something wrong with that,” attorney Robert Higgason told the justices in September.

In an 8–1 ruling Friday, the justices made it clear that they disagreed – saying that if the Commission chose not to enforce any given law, that did not clear the way for Houston authorities to do so.

“By authorizing criminal prosecution even when the TCEQ determines an administrative or civil remedy—or even no penalty at all—to be the appropriate remedy, the City effectively moots the TCEQ’s discretion and the TCEQ’s authority to select an enforcement mechanism,” Justice Paul Green wrote. “This is impermissible.”

See here and here for the origin story, and here and here for the most recent updates. The Chron story adds more.

City Attorney Donna Edmundson issued a statement saying the court’s decision “will not dampen the city’s efforts” to assist the Texas Commission on Environmental Quality with the enforcement of environmental laws. The statement said the city will employ “other legal mechanisms” allowed under state law to monitor and take action against polluters. A spokeswoman said the city hadn’t decided whether to appeal.

Adrian Shelley, executive director of the advocacy group Air Alliance Houston, said the decision was “not the least bit surprising” but dismaying nonetheless.

“It’s pretty in-keeping with both previous judicial decisions and the direction in which our state government is moving,” he said. He cited the state Legislature’s passage of a bill last session that caps the amount local governments can collect through environmental lawsuits, Gov. Greg Abbott’s filing of a brief in support of the industry advocates in this case, and a prior legal case that made its way to the Texas Supreme Court.

“There will be more polluters who pollute with impunity,” Shelley said. “There will be a little poorer public health in the city as a result.”

Houston battled smoggy skies for decades and has failed to comply with federal ozone standards. The 10-county area includes the largest petrochemical complex in the country, hundreds of chemical plants and a bustling port.

Under the ordinances, the city collects registration fees from companies in order to investigate potential violations of air pollution laws.

City officials have defended the ordinances since their passage in 2007, arguing they helped fill an enforcement gap created by understaffing at TCEQ, the state agency responsible for monitoring and punishing polluters.

The city said legal mechanisms it could use against polluters include requesting that TCEQ investigate suspected polluters, seeking injunctive relief and penalties in civil court against suspected violators and notifying TCEQ of violations deemed to be criminal in nature.

Former Mayor Bill White pushed for the ordinances after growing frustrated with TCEQ. He and City Council members voted to amend a 1992 ordinance and start requiring businesses to pay registration fees based on their size and emissions. The fees range from $130 for a dry cleaning plant with fewer than six employees to $3,200 for plants emitting more than 10 tons annually of airborne contaminants.

The ordinances also authorized city health officers to seek civil, administrative and criminal sanctions for violations that can be prosecuted in municipal court, with fines of up to $2,000 per day for repeat violators.

The ordinance was based on the premise that these facilities are outside Houston’s boundaries, but their emissions directly affect the city and its residents, not to mention Houston’s non-compliance with EPA regulations. The Supreme Court wrote that allowing such ordinances might lead to uneven enforcement around the state. I can see the logic of that, but as is so often the case with the TCEQ, if they bothered to enforce the law in the first place, the city wouldn’t have passed that ordinance. It’s the same impetus that drove Denton to ban fracking, and as was the case there, it’s the same impulse to squash inconvenient expressions of local control that led to this result. How long can you hold your breath, Houston? The Press and the Observer have more.

Houston’s environmental protection ordinances go to the Supreme Court

Where, sadly, they’ll likely get killed.

Bill White

Bill White

State environmental regulators don’t adequately enforce air pollution laws, the city of Houston believes, and on Wednesday it will ask the state’s highest civil court to let it keep trying to do the job itself.

The state Supreme Court will hear arguments in a case challenging a pair of ordinances the city enacted in 2007 and 2008 requiring industrial polluters within Houston to register with the city, and subjecting the polluting companies to fines if they operate without registering.

BCCA Appeal Group, a coalition of industrial facility owners including ExxonMobil and the Dow Chemical Company, sued the city seven years ago, claiming the ordinances improperly preempt state law. The First District Court of Appeals has already weighed in on Houston’s side, finding in 2013 that the Legislature had not foreclosed such local regulations with anything resembling “unmistakable clarity.”

In its appeal to the Supreme Court, BCCA argues that the city is allowed to enforce air regulations only if it uses the weaker enforcement tools laid out by the state.

But Houston, and a host of environmental groups filing amicus briefs in the city’s support, say it is perfectly within its rights to enforce state laws using alternative regulatory strategies, including levying fines where the state won’t.

“The city’s looking for accountability, and this is a streamlined way of trying to do that,” said Rock Owens, who co-authored an amicus brief submitted by the Harris County Attorney’s Office. “There should be something that happens if you don’t follow the law, and the [Texas Commission on Environmental Quality] isn’t in a position where they can provide enforcement. They don’t have the resources, or, frankly, the will.”

Owens said he believes the Houston ordinances simply put some muscle behind the regulations the commission laid out. “It’s just a matter of layering — a matter of making the law effective,” Owens said.

[…]

Given how political tides recently have turned against local efforts to police industries, Adrian Shelley, executive director of Air Alliance Houston, said he isn’t optimistic about the city’s chances in front of the state’s highest civil court.

Shelley cited House Bill 40, signed by Abbott in May, which preempts local control over most oil and gas activity, as one reason for his concern.

“I think it needs to be said that there’s a larger trend here — a problematic trend — and that’s bad for public health in Texas,” Shelley said. “We’re likely to lose this case.”

See here and here for some background on this, which was an initiative of then-Mayor Bill White. I’m sure I have more entries on this, but my older archives aren’t quite as organized. I wish I was more optimistic about this, but I think Shelley nails it. As the story notes, Greg Abbott supports the BCCA, because of course he does. Local control only matters to Abbott when the locals are doing things he approves of. We should know in a few months how the Court rules, and I guess you can add this – “what, if anything, should the city do to improve air quality if the Supreme Court invalidates the city’s air quality ordinances of 2007 and 2008?” – to the list of questions that we ought to be asking the Mayoral herd. See this op-ed by Adrian Shelley and Jen Powis for more.

That pollution isn’t our fault!

You have to admire the creativity.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

Harris County’s problem with tiny, lung-damaging particles in the air can be blamed partly on African dust and crop-clearing fires in Mexico, the state’s environmental agency has told federal regulators.

If the Environmental Protection Agency agrees with the state’s finding, then the county would avoid stringent pollution controls and sanctions for particulate matter, or soot.

The Texas Commission on Environmental Quality is making the case after Harris County last December failed to meet new federal limits for soot. The EPA tightened the limits after a federal court concluded that previous standards were too weak to protect public health.

The state agency has flagged seven days from 2010 to 2012 when high soot levels were “not reasonably preventable” because of particles from faraway places. If not for pollution from Africa and Mexico, also known to regulators as “exceptional events,” the county would have met the new limits, the agency concluded.

Maybe this is what Ted Cruz is talking about when he demands tighter control over the border. Who knew he cared about the environment?

Environmentalists sharply criticized the state’s assertion, saying the agency is “looking for an easy way out” instead of cracking down on harmful pollution.

“It’s not the way to address a serious issue,” said Elena Craft, a Texas-based toxicologist for the Environmental Defense Fund. “Whether the pollution comes from an exceptional event or not, the public health risk is the same.”

[…]

Larry Soward, a former state commissioner who is now board president of Air Alliance Houston, said he expects the EPA to approve the state’s request.

But Soward said he is concerned that progress on air quality would stall if federal regulators allow the exceptions.

“The practical effect will be that no one does anything to ensure the new (particulate matter) standard is met other than what is being done now, which is very little,” he said. “In other words, Houston will come to parade rest.”

The EPA isn’t expected to make its decision till late next year. All snark aside, whether or not this is a real thing shouldn’t distract from the real need to deal with the problems and factors that we do control. A bit of dust that blows in from elsewhere doesn’t change the fundamentals.

Everybody sues the EPA

The state of Texas and our pollution-loving Attorney General do it because they think the EPA does too much to protect us from harm. Some other groups do it because they think the EPA isn’t doing enough.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

In the suit filed on Thursday, Air Alliance Houston and three other groups accuse the U.S. Environmental Protection Agency of using outdated and inaccurate formulas to estimate levels of air pollution.

The groups say studies show that actual smog-forming emissions can be 132 times greater than EPA estimates, which are based on data provided by the industry. The agency, as a result, does not possess reliable data to protect public health, according to the suit filed in U.S. District Court for the District of Columbia.

“The EPA has a history of dragging its feet on this issue,” said Jennifer Duggan, an attorney for the Environmental Integrity Project, a legal group representing Air Alliance Houston and the other organizations in the case. “It has been aware of these inaccuracies for some time.”

[…]

The lawsuit comes five years after the city of Houston raised similar issues with the federal agency, which uses the emissions data to develop pollution controls, establish limits and guide enforcement.

In response, the agency acknowledged flaws in its formulas and promised to make changes.

See here for the background; this was a part of then-Mayor Bill White’s plan to reduce benzene emissions in Houston. You can see a copy of the lawsuit and the notice of intent to file suit that was sent by the plaintiffs to the EPA in 2012 here. I think we can safely assume that Greg Abbott will not be filing an amicus brief for the plaintiffs on this one.

Pollution prosecution

Not really sure what to make of County Commissioner Steve Radack’s proposal to create a new pollution control department that will more aggressively pursue violators.

“We have people out there violating the law and they’re polluting,” Radack said. “They’ve been getting away with it for a long, long time while it’s been under the health department, and it’s time to change that.”

Last March, Commissioners Court approved a recommendation to study how to strengthen pollution control, but no report has been issued. Radack said he has waited long enough.

“We study, we study and we study, but eventually, we have to take the test,” he said.

Radack proposes the new department at a time when the county is grappling with potentially tens of millions of dollars in budget cuts.

The six-term Precinct 3 commissioner said he believes the department can be created without additional cost by simply moving the pollution control specialists out of the Public Health and Environmental Services office and setting them up in their own shop.

Both the county attorney and Radack support a separate department, as prosecutions of polluters have declined in recent years.

County Attorney Vince Ryan has been gung ho about chasing polluters, so I’m not surprised he supports this. I certainly favor the philosophy behind this plan, but it’s not clear to me how this reshuffling of personnel will make a difference. So for now, I agree with this:

“I don’t know what to make of this,” said Matthew Tejada, executive director of Air Alliance Houston, when asked about the proposal. He said he had hoped there would have been some sort of public debate in advance of a vote at Commissioners Court because the new agency will have such an impact on everyone in the Houston area.

“I really hope that whoever’s pulling the trigger on this is doing it in the best interests of Harris County,” Tejada said. “I hope this isn’t being done for the purpose of behind-the-scenes political maneuvering.”

On the one hand, I don’t have a lot of faith in Steve Radack. On the other hand, if Vince Ryan is on board I’m willing to believe there’s something to it. Commissioners Court has delayed action on this until next month, so at least we’ll have some time to figure it out. What do you think?