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Paxton wants to sue VW all by himself

Really?

Seeking to fight scandal-plagued Volkswagen alone, Attorney General Ken Paxton is asking two Texas counties to halt their lawsuits against the automaker — a move highlighting friction between Texas and local governments pursuing tens of millions of dollars in court.

The Republican made the request in letters sent Friday to top attorneys in Harris and Fort Bend counties, both of which beat Paxton to the punch in filing lawsuits over the company’s admitted use of software that allowed its vehicles to sidestep emissions limits.

“The alleged violations by VW harm Texans throughout the state, and a separate Harris County lawsuit undermines the ability to achieve a comprehensive and just statewide resolution of this matter on behalf of Texas,” Paxton wrote in a letter to Vince Ryan, the Harris County attorney. “The Office of the Attorney General requests that the county stand down on its claims and cooperate with the Office of the Attorney General in pursuing the state’s interests – which includes Harris County’s interests – on matters arising from VW’s wrongful conduct.”

Paxton used similar language in a letter to Fort Bend County Attorney Roy Cordes, Jr.

Paxton wrote that both counties failed to communicate with his office before filing their suits, and he knocked them for hiring outside legal help, saying the move “appears to be an unnecessary expense.” The Texas Tribune obtained unsigned copies of both letters.

By abandoning their lawsuits, the counties would leave millions of dollars in potential winnings on the table.

“Harris County, Texas wants a place at the table. That’s why we’re first in line and the first government in the world to sue Volkswagen,” said Terry O’Rourke, special counsel with the Harris County attorney’s office. O’Rourke had not yet seen Paxton’s letter.

“We’ll look at whatever General Paxton’s request is and evaluate it with sincerity,” he added.

In Fort Bend, Randy Morse, the assistant county attorney, said his office could not comment because it had yet to receive the letter.

[…]

Last week, the city of Dallas announced it planned to sue Volkswagen, but it reversed course on Monday, saying Paxton’s statewide suit would do the trick.

“We look forward to the state taking action in the upcoming months to require Volkswagen and Audi to bring the affected vehicles into compliance with state environmental laws and improve air quality in the Dallas-Fort Worth area, and we urge the state to do so in an expeditious manner and at no cost to affected motorists,” the city said in a statement.

See here and here for the background. Personally, I don’t know that I would trust the state to look after my own interests as well as I would in a case like this. Pursuing environmental justice is not exactly one of Ken Paxton’s strong points. If I were in those County Attorneys’ shoes, my reply would be to suggest that Paxton file a brief with the judge in my case stating his position, and let the judge decide the best course of action from there. The Press and the Chron have more.

State of Texas sues VW

Bandwagon time!

Following in the footsteps of Harris County and the city of Dallas, the state announced Thursday it is suing Volkswagen in connection with the German automaker’s admitted use of software that allowed its vehicles to circumvent emissions limits.

Attorney General Ken Paxton announced two separate lawsuits against Volkswagen Group of America, Inc. and subsidiary Audi of America, alleging violations of the state’s consumer protection laws and clean air standards.

“The lawsuits allege the companies misled Texas consumers by marketing and selling diesel vehicles as ‘clean’ while knowing that these vehicles were designed to meet emission standards only when being tested,” a news release said. “Outside of the testing station they would emit up to 40 times the allowable standard for certain pollutants.”

About 32,000 diesel cars capable of emissions cheating have been sold in Texas, the release said, citing U.S. Environmental Protection Agency figures. That’s compared to about 480,000 nationwide and 11 million globally.

“For years, Volkswagen intentionally misled consumers about the environmental and performance qualities of the vehicles they sold in Texas,” Paxton said in a statement. “When companies willfully violate the public’s trust, a penalty must be paid, and we will hold these entities responsible.”

See here for the background. Again, I don’t know why any government entity wouldn’t file suit against VW. They’ve already admitted liability – this is as close to a slam dunk as it gets in civil litigation. How long it takes and how much you ultimately get are open questions, but the winning and losing part isn’t. And hey, now we know what it takes to get Texas to enforce environmental standards. It’s a win all around!

County sues VW for $100 million

Good.

Vince Ryan

Vince Ryan

Harris County on Tuesday set in motion a $100 million environmental lawsuit against Volkswagen, claiming emissions from 6,000 diesel cars circulating on roadways in the region have caused harm to the population. County Attorney Vince Ryan said his review of filings indicated this could be the first government suit against the car company since the executives admitted to cheating on emissions monitoring in diesel cars released since 2009.

Commissioners Court approved the suit Tuesday morning and hired three law firms to handle the matter on a contingency basis. The county plans to file the suit Tuesday afternoon, according to Robert Soard, first assistant county attorney.

The county does not have Volkswagens in its central fleet, according to Dre Dupont, who oversees the vehicles. Instead, the focus of this suit will be on the extent to which the car company and its affiliates violated Texas emissions standards, creating a public health hazard for everyone within the borders of Harris County.

The Press is pretty snarky about this, but as Judge Emmett noted in the Chron story, VW has already admitted liability. Why wouldn’t we sue? I don’t know what the likelihood is of collecting a substantial sum, and it may be that our suit gets consolidated with the many others already out there, but VW deserves all the trouble it’s going to get. Good for Vince Ryan for taking the initiative.

Houston pleads its case to the Supreme Court

We’ll see how they did.

Bill White

Bill White

“The point of all this is to protect the public and the environment, to have clean air, and the TCEQ, for the Texas Clean Air Act, envisions that it be vigorously enforced,” [Houston attorney Robert] Higgason said. “This is what the statute makes reference to — cities being allowed to enact and enforce their own ordinances to achieve the goal of the Texas Clean Air Act.”

BCCA Appeal Group, a coalition of industrial facility owners including ExxonMobil, the Dow Chemical Company and ConocoPhillips, has sued to strike down the ordinances, arguing Houston is exceeding its authority under state law.

“The Legislature has already addressed what cities can do to address this problem…and they’ve turned what should be an administrative and civil regime, that should be consistently applied, into a local criminal statute,” BCAA attorney Evan Young argued. “To convert it from something very different from what the Legislature intended degrades and erodes the meaning of the act.”

[…]

Higgason repeatedly argued that it was incumbent upon cities like Houston to enforce the clean air act where the state agency is unable to do so. “If the TCEQ is letting something go, and not enforcing its own standards, there’s something wrong with that,” Higgason said.

Justice Eva Guzman, a former Harris County district and appellate judge, challenged his stance, asking if local actions might compromise the TCEQ’s right to use discretion in enforcement. She said the TCEQ’s sluggish ability to respond to air pollution violators was not necessarily Houston’s concern.

“When cities exercise their own discretion, that discretion could or could not be consistent with what the TCEQ would have done under their regime,” Guzman said. “It seems to me like that defeats your argument.”

Young emphasized that Houston was indeed allowed to enforce the state’s regulations — so long as it used the state’s preferred method of civil enforcement actions in civil courts.

In contrast, the Houston ordinances allow polluters to be charged in criminal courts, with convictions leading to a range of penalties including fines up to $2,000 per violation for repeat offenders.

“If we’re going to have a statewide, uniform comprehensive regulatory regime that actually gives predictability, it is essential that the TCEQ be involved in that decision-making,” Young said. “If a city wants to enforce the regulations in court, it can do that — by bringing a civil suit.”

See here for the background. The Press, which takes a closer look at the plaintiffs in this action, notes that the stakes are higher than they might appear.

What’s intriguing about this case is that the outcome might ultimately do more than just decide whether Houston has the right to regulate its own air quality. The case gives the Texas Supreme Court the chance to wade into a seldom-explored area of law looking at whether cities have the right to enact local regulations without clashing with state law, according to Law360. Should the high court decide in favor of Houston’s ordinance, that, for instance, could potentially give the city of Denton some legal legs to bring back its anti-fracking ordinance. (Hester, however, contends the chances of that happening are still slim.)

But a ruling against Houston would limit the city’s ability to enact environmental regulations and that would mean the TCEQ would be the agency deciding how to penalize companies that pollute in Houston. “It’s really a question of who gets to make the call on what type of enforcement should take place,” [Tracy Hester, an environmental law professor at University of Houston] says. “If the ordinance is upheld and the city feels like an enforcement action doesn’t address their concerns, then they will be able to have their own enforcement actions.”

So there’s that. Doesn’t make me feel any more optimistic about the likely outcome, that’s for sure. Hope for the best, of course, but I’m not expecting it.

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.

Split decision on cross-state air pollution rule

Not too bad, actually.

Texas’ Republican leaders and environmentalists are both claiming victory Tuesday following an appeals court ruling that requires the federal government to ease limits on certain emissions for Texas and a dozen other states.

The U.S. Court of Appeals for the D.C. Circuit on Tuesday ordered the Environmental Protection Agency to revisit caps on nitrogen oxide and sulfur dioxide emissions — set in an effort to limit the effects of air pollution across state boundaries. But the court also upheld the agency’s right to enforce such a regulation.

Texas was among 13 states, joined by industry and labor groups, that sued over the so-called Cross-State Air Pollution rule in 2011, challenging the EPA’s framework and complaining states weren’t given enough time to comply.

The regulation requires Texas and other “upwind” states in the South, Midwest and Appalachia to cut certain emissions that contribute to air pollution in East Coast states like New York.

In a 6-2 decision last year, the U.S. Supreme Court largely upheld the rule in a major win for the Obama administration. But the justices told the lower courts to resolve lingering questions about how to implement it.

Tuesday’s ruling addressed those issues, with the court noting “the petitions for review are therefore granted in part and denied in part.” It opted to leave the current emissions rules in place as the EPA revises them.

See here for the background. The DC Court had previously ruled against the CSAPR, but SCOTUS overruled them. The EDF explains what this ruling means.

The D.C. Circuit Court decision recognizes that, when the Supreme Court upheld the Cross-State Air Pollution Rule in April of 2014, it affirmed EPA’s fundamental methodology for implementing the “good neighbor” protections of the Clean Air Act. Today the D.C. Circuit Court granted claims by Texas and other states challenging particular emissions budgets while firmly rejecting associated requests to vacate the state-based emissions protections and rejecting several additional fundamental legal claims.

The court directed EPA to carry out additional analyses on remand, stating, “We remand without vacatur to EPA for it to reconsider those emissions budgets. We reject all of petitioners’ other challenges to the Transport Rule, including all of their facial challenges to the Rule. (Decision, page 36, emphasis added)

The rule’s life-saving pollution reductions remain in full effect.

So that’s pretty good. I trust the revised rules the EPA comes up with will also be pretty good. Tough luck, polluters.

SCOTUS gives polluters a win

Alas.

Martin Lake coal plant

Martin Lake coal plant

t emissions of mercury and other hazardous air pollutants, but it may only be a temporary setback for regulators.

The justices split 5-4 along ideological lines to rule that the Environmental Protection Agency failed to take cost into account when it first decided to regulate the toxic emissions from coal- and oil-fired plants.

The EPA did factor in costs at a later stage, when it wrote standards that are expected to reduce the toxic emissions by 90 percent. But the court said that was too late.

The rules, which took effect in April, will remain in place while the case goes back to a lower court for the EPA to decide how to account for costs, environmental advocates say.

They were supposed to be fully in place next year. The issue was whether health risks are the only consideration under the Clean Air Act.

[…]

Writing for the court, Justice Antonin Scalia said the EPA was unreasonable in refusing to consider costs at the outset. He was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito.

In dissent, Justice Elena Kagan said it was enough for EPA to consider costs later in the process.

“Over more than a decade, EPA took costs into account at multiple stages and through multiple means as it set emissions limits for power plants,” Kagan said.

She was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

The EPA said it is reviewing the court’s decision and will determine any appropriate next steps once a review is completed.

“EPA is disappointed that the Supreme Court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance,” EPA spokeswoman Melissa Harrison said.

Indeed, more than 70 percent of power plants already have installed controls to comply with the rules, said Vicki Patton, an attorney at the advocacy group Environmental Defense Fund.

“EPA already has an economic analysis that it can rely on to demonstrate that the public health benefits of the standards far outweigh the costs,” Patton said.

See here and here for the background. I would obviously have preferred a win here, but at least the EPA will get another shot at this. As noted in the story and acknowledged by ERCOT, most power plants are already there, and there are (in Texas, at least) no new coal-fired plants about to come on line. As Vox explains, the national effect of this ruling is likely to be minimal as well.

That’s the only thing at stake here: how long these 22 plants get to keep spewing [hazardous air pollutants, HAPs]. That’s not nothing — especially to the vulnerable populations exposed to those toxic pollutants — but it amounts to a mopping-up operation.

You might note an irony here. The entire Supreme Court case is premised on the fact that [mercury and air toxins, MATS] regulations are “the most expensive ever.” Industry claims it’s outrageous that EPA didn’t consider these extraordinary costs, which it says could cause blackouts and destroy the power sector and leave the US a smoking ruin.

Oh, but, by the way, while we were debating this, the power sector went ahead and complied with the regulations. Notice any blackouts? Any big bankruptcies in the power sector? Any economic devastation? No. As usual with air pollution rules, when the power sector quits complaining and starts complying, the costs turn out to be much lower than anyone anticipated. This case was a fight over a question that’s already been settled by facts on the ground.

So there’s that. The bad news is that the coal-fired plants we have now in Texas are chock full of mercury and other toxins, which they release into the atmosphere every day. So every extra day we have to wait for the new rules means that much more poisonous filth in our environment. Isn’t that nice? Daily Kos, Kevin Drum, and Ed Kilgore have more.

Abbott signs pollution enhancement bill

Still sucks to be us, Harris County.

San Jacinto River waste pits

Gov. Greg Abbott has signed legislation that could make it tougher for local governments to sue big-time polluters – an effort that largely targets Harris County prosecutors.

House Bill 1794, set to become law on Sept. 1, will set a five-year statute of limitations and cap payouts at about $2 million when counties sue companies that have fouled their water or air. It’s another win for a wide range of business groups in a rough legislative session for environmental advocates.

Rep. Charlie Geren, R-Fort Worth, and Sen. Kelly Hancock, R-North Richland Hills, pushed the bill through both the House and Senate, drawing little debate.

Proponents say that curbing the civil penalties assessed on top of those state regulators issue would bolster economic certainty for companies and allow them to focus resources on cleaning up their messes.

“If someone is remediating the violations they have, I don’t believe they should be assessed these additional penalties,” Geren said in an interview last month. “I don’t believe it’s a setback for environmentalists at all because we didn’t take away any authority from the [Texas Commission on Environmental Quality].”

Environmentalists beg to differ. With other critics, they say state environmental regulators don’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,” Terry O’Rourke, special counsel with the Harris County attorney’s office, told The Texas Tribune last month. “That’s all it is: It is a polluter protection bill.”

See here and here for the background. You know how I feel about this, and I can’t say it any better than Terry O’Rourke just did. So here’s a little blast from the past to bring it on home:

The more things change, y’all…

Local control still under assault

Sucks to be us, Harris County.

San Jacinto River waste pits

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.

Once again to SCOTUS for Texas and the EPA

Plus ca change, and all that.

Texas again went head-to-head with the Environmental Protection Agency before the U.S. Supreme Court on Wednesday, this time challenging federal limits on the emission of pollutants like mercury, acid gases and other toxic metals from power plants.

Joined by 20 other states, Texas is arguing that the EPA didn’t properly consider the $10 billion annual price tag of its regulations, which “threatens to drive a number of coal-fired electric utilities out of business.” The rules target more than 50 coal- and oil-fired power plants across Texas, and industry and labor groups are also challenging them.

The EPA counters that Congress never directed the agency to consider costs the way Texas and other states think it should have. And in any case, the agency argues, the benefits far outweigh the costs. The agency asserts that the rule prevents up to 11,000 premature deaths per year. Mercury, a highly toxic chemical that can build up in the human body, is linked to brain abnormalities and developmental disorders.

“The [mercury] rule will importantly reduce serious hazards to the public,” the American Academy of Pediatrics wrote in a legal brief supporting the EPA. “Those hazards … are particularly acute for vulnerable groups, including children who can suffer debilitating, lifelong effects” from toxic pollution.

[…]

At the heart of the case is whether deeming regulations “appropriate and necessary” should include an aggressive consideration of costs early in the process. The plaintiffs say yes; the defendants say no. The D.C. Circuit Court agreed with the defendants last year, pointing out that the courts have previously said the EPA doesn’t need to consider costs that way unless Congress directly tells it to.

If the high court disagrees, a key issue will be how the benefits of environmental regulations should be quantified. Right now, the EPA says the benefits of the mercury rule could total as much as $80 billion, which dwarfs the estimated $10 billion cost.

Opponents say the $80 billion figure is misleading. Only $4 billion to $6 billion of it comes directly from reducing mercury pollution, they argue; the rest is a “co-benefit.” That’s because removing mercury from the air also removes the particulate matter it’s often attached to — leading to increased health benefits.

During oral arguments on the case Wednesday, Chief Justice John Roberts said that type of co-benefit calculation “raises the red flag” and looks like the EPA is trying to reduce particulate pollution through the back door. That would be an “end-run” around a separate part of the Clean Air Act that the agency must follow for that type of pollution, he said.

“It’s not an end-run, and it’s not a boot strap,” responded U.S. Solicitor General Donald Verrilli, who was defending the EPA. Calculating co-benefits is “a perfectly appropriate way to deal with getting at metals and other pollutants that would be hard to get at directly,” he said.

I’m sure there’s some subtle legal reason why removing the particulates attached to the mercury shouldn’t count, but I’m too simple a soul to see the logic of it. That won’t be an issue if SCOTUS agrees with the DC Circuit about the bigger question of whether or not the EPA had to consider costs in the first place. I’m sure you’ll be shocked to hear that Anthony Kennedy is the swing vote. Let’s hope we get the good Justice Kennedy this time. The good news is that Texas has an abysmal won-lost record on matters like these. But there’s always a first time, so let’s not get too confident.

Local control deathwatch: Environment

Unsurprisingly, the Denton fracking ban has provoked a strong reaction.

As policy dilemmas go, the one triggered when Denton voters decided last fall to ban hydraulic fracturing in their city looked like a whopper: The oil and gas industry versus local control — two things Texas holds dear — in intractable opposition. There seemed little doubt lawmakers would weigh in upon their return to Austin.

But four months after the North Texas city’s historic vote, top state lawmakers don’t appear to be scratching their heads. Petroleum is winning hands down, and local control appears headed for a beating.

Several legislative proposals so far leave less wiggle room for Texas cities to regulate oil and gas production. 

“We need to restate that principle that the state has responsibility to regulate the oil and gas industry,” said state Rep. Drew Darby, R-San Angelo, who chairs the House Energy Resources Committee. “I don’t know where people might have believed that the state was not going to assert fully its rights to regulate that.”

Texas lawmakers this session have filed at least 11 bills that would discourage local governments from enacting or amending certain drilling rules. Meanwhile, those watching legislation on the issue say they haven’t noticed one proposal to bolster – or even support – local control on petroleum development.

“We didn’t expect these to be just completely one-sided,” said Bennett Sandlin, executive director of the Texas Municipal League. “Instead, they’re swinging for the fences, and it’s quite alarming.” 

The trend is part of a broader debate — touching on issues including plastic bag bans and sanctuary cities — that some Republicans have sought to reframe as a debate about the size of government.

Supporters of Denton’s fracking ban “accused me of violating my conservative principles, arguing that since a local government passed a measure, any attempt to overturn it would be using ‘big government’ to squash dissent,” state Rep. Phil King, R-Weatherford, wrote in a recent op-ed in the Fort Worth Star-Telegram. “They have it backwards, because ‘big government’ is happening at the local level.”

One of King’s bills would require cities to get the attorney general’s blessing before enacting or repealing any ordinance by voter initiative or referendum, the tool Denton activists used to push that city’s fracking ban. Another would require cities that tighten drilling regulations to reimburse the state for any lost tax revenue.

Other bills have addressed compensation for mineral rights owners harmed by a local ordinance, while legislation from state Sen. Konni Burton, R-Colleyville, gets right to the point of the Denton debate: It would ban fracking bans.

Perhaps the most controversial proposals, however, are those most likely to pass. Identical bills from Darby and Sen. Troy Fraser, R-Horseshoe Bay, chairman of the Senate Committee on Natural Resources, would limit cities’ power to regulate the industry to “surface activity that is incident to an oil and gas operation, is commercially reasonable, does not effectively prohibit an oil and gas operation, and is not otherwise preempted by state or federal law.”

Texas law says the state intends its mineral resources to be “fully and effectively exploited,” but courts have said the power isn’t absolute. The Texas Railroad Commission oversees the state’s oil and gas industry, with authority to adopt “all necessary rules for governing and regulating persons and their operations.” Local governments have the right to impose reasonable health and safety restrictions, and the Legislature has granted most Texas cities the power to “regulate exploration and development of mineral interests.” 

See here for past coverage. I would have voted for the Denton ban, but I can understand the objections to it. Mineral rights are complex in Texas, and anyone who had such rights within Denton could reasonably complain that his or her property was taken away. It’s also generally better to have a uniform regulatory environment to facilitate business compliance. But that gets to the crux of the matter here, which is that the regulatory environment in Texas is a joke. The Railroad Commission is a complete lapdog for corporate interests. It’s precisely because activists in Denton felt they were being ignored and pushed aside that they sought out an alternate remedy. If we had a useful, functioning Railroad Commission, we would not have had this ballot referendum or interest in having such a referendum in other cities. This is not hard to understand, but the campaign coffers of people like Phil King and Konni Burton depend on them pretending to not understand it.

And speaking of the environment.

In another fight over local control this session, state Rep. Charlie Geren (R-Fort Worth), one of the more powerful lawmakers in the House, is pushing a bill that would erode the ability of cities and counties to collect civil penalties from polluters. This morning, Geren described the latest version of his House Bill 1794 to the House Environmental Regulation Committee as a way to curb “lawsuit abuse” by capping the maximum penalties that can be assessed on environmental violators at $4.3 million and imposing a five-year statute of limitations on the filing of lawsuits.

The legislation appears to be a response to high-profile litigation between Harris County and three companies considered liable for the San Jacinto River waste pits, an EPA Superfund site that has been leaking dioxins into the San Jacinto River and Galveston Bay for decades.

While Geren jettisoned some of the most far-reaching parts of the original version of HB 1794—a requirement for local governments to prove that a company “knowingly or intentionally” violated the law, for example—local authorities and environmentalists said they were still opposed.

Tom “Smitty” Smith, the veteran head of Public Citizen’s Texas office, said cities and counties need the ability to force polluters to pay civil penalties because state enforcement of environmental laws is so weak.

“We think the [Texas Commission on Environmental Quality] is a toothless tiger,” he said. The agency doesn’t have the resources or “the guts to go after biggest polluters.”

[…]

County- or city-led lawsuits seeking penalties from water polluters are relatively rare, but Harris County, with its vast petrochemical facilities, 20 known Superfund sites and loose rules that allow homes next to industry, is probably the most litigious. In the last 19 years, the county has issued 18,000 violation notices to companies and filed 205 civil actions, said Cathy Sisk, a retired environmental attorney with Harris County. She said the county only resorted to the lawsuit because the three successor companies hadn’t done anything to clean up the site, even going so far as to defy EPA’s orders.

“We feel like in those cases we need a hammer,” she said.

Harris County Commissioner Jack Cagle, a Republican, made a pitch for keeping local control. “Government is best when it’s closest to the people,” he said. Sometimes, state officials are “removed from the passion of the folks who actually live in the neighborhoods, where we work, where we breathe, where we play and live.”

HB 1794 was left pending. A companion bill in the Senate, SB 1509, by Sen. Kelly Hancock (R-North Richland Hills) has yet to be assigned a committee.

Indeed, the TCEQ is as useless as the Railroad Commission and as deeply in the pocket of the people and businesses they are supposed to regulate. What else is one to do but take the avenue that is available? If you don’t want the Harris County Attorney filing so many lawsuits against polluters, then provide a regulatory agency that will, you know, actually regulate. That includes going after the bad actors and levying punishments as needed. Again, this is not hard to understand. It should not be this hard to do.

Yes, we can cut back on coal

It won’t be that hard, and it will come with a lot of benefits.

Texas burns more coal than any other state in part because of its large and growing population and industrial base. But the carbon-intensive fuel accounted for less than 40 percent of the state’s power use last year.

The federal proposal calls for Texas to reduce its carbon emissions 39 percent from 2005 levels by 2030. In contrast, West Virginia and Kentucky, which generate nearly all of their power from coal, would be required to make cuts of 20 and 18 percent, respectively.

Some Texas officials have questioned whether the proposed reduction is even possible without a radical shift in generation toward natural gas, wind and solar and a stronger push to use energy more efficiently. Texas’ power grid operator has said about half of the state’s coal-burning capacity might be retired under the federal plan.

But some experts say Texas wrongly views the rules as an existential threat to its energy-heavy economy. Instead, they argue, the state could achieve the federal targets without a lot of new initiatives.

The disconnect persists because “this regulation hits the status quo harder than any other, and we have powerful economic interests in this state wanting to maintain the status quo,” said Thomas McGarity, a University of Texas at Austin law professor who specializes in government regulation.

The combination has caused some operators to decide whether to retire their coal plants or retrofit them with expensive new pollution controls.

In its formal comments on the proposal, the Sierra Club said Texas could achieve the EPA’s proposed target by retiring 10 coal-burning power plants that are more than 40 years old and replacing them with natural gas-fired plants.

“We talk about how there is a war on coal, and that’s true,” said Victor Flatt, a professor of environmental law at the University of North Carolina at Chapel Hill. “But there isn’t a war on fossil fuels. This rule is favorable to natural gas. In the end, I don’t think it will have the huge economic impact that people say it will.”

But there are concerns that the EPA will require states to make emissions cuts too quickly, leading to unintended consequences.

See here and here for the background, and remember again that reducing the use of coal for power generation would also greatly reduce water usage, which would have ancillary benefits for Texas. The crux of the complaint by the TCEQ seems to be that it’s not fair to ask more of Texas than some other states, including Kentucky and West Virginia, which produce the most coal but which use much less of it since they’re so much smaller than we are. I guess “Texas exceptionalism” stops when the discussion turns to responsibilities. I don’t know about you, but I think the great state of Texas is more than up to the task of being a leader in reducing coal consumption. Too bad the TCEQ – and I presume more than a few Republican officeholders – think so little of our state’s abilities.

ERCOT acknowledges that meeting EPA clean air requirements won’t be that big a deal

From Texas Clean Air Matters:

ERCOT

Well, it didn’t take long before the Electric Reliability Council of Texas (ERCOT) released, at the request of Texas’ very political Public Utilities Commission, another report about the impacts of the Environmental Protection Agency’s (EPA’s) rules designed to protect public health.

This time ERCOT, which manages 90 percent of Texas’ electric grid, looked at the impact of seven EPA clean air safeguards on the electric grid, including the Cross State Air Pollution Rule (CSAPR), the Mercury Air Toxics Standard (MATS), the Regional Haze program (all of which go back before the Obama administration), the proposed Clean Power Plan, which would set the first-ever national limits on carbon pollution from existing power plants, and others. What was surprising to learn, though, is that after power companies in the state start complying with EPA’s other clean air protections, the proposed Clean Power Plan poses a minimal incremental impact to the power grid. We would only have to cut 200 megawatts of coal-fired generation, which equates to less than one coal-fired power plant.

For as much doom-and-gloom we heard last month in ERCOT’s report about the Clean Power Plan, they certainly seem to be singing a different tune this go-around. The new report shows that Texas can go a long way toward complying with the Clean Power Plan by meeting other clean air safeguards, for which Texas power companies have had years to prepare.

Very soon power companies in Texas will install control technologies to reduce multiple – not just one – pollutants, thereby making compliance with EPA’s subsequent regulations easier and more cost-effective. In the end, Texas will only need to take a minimal amount of additional aging coal plants offline by 2029.

Plus, other energy resources, like energy efficiency, rooftop solar, and demand response (which pays people to conserve energy when the electric grid is stressed) are gaining ground every day in Texas. They have proven to be vital resources on the power grid that help reduce electricity costs for Texas homes and businesses.

Energy efficiency, in particular, provides significant reductions in power plant emissions, including carbon dioxide, sulfur dioxide, and ozone-forming pollutants, and has a four-to-one payback on investment. This is the type of performance worth investing in.

See here for the background, and click over to read the rest. In addition to what the EDF says above, complying with the new regulations would also save a ton of water, which is a pretty big deal in and of itself. So let’s have less whining – and fewer lawsuits – and get on with the compliance. It’s a win all around.

Landfill opponents win in Hempstead lawsuit

Good news.

StopHwy6Landfill

A jury on Thursday found that Waller County commissioners met illegally in closed sessions among themselves and with developers of a controversial landfill proposal over more than two years before agreeing to host the project.

After a three-week jury trial that was the talk of this rural county, the 12-member jury sided with the city of Hempstead and a citizens group that had challenged the Commissioners Court’s February 2013 approval of the 250-acre landfill just outside the Hempstead city limits.

The verdict does not block the landfill, but it does represent an important victory for those fiercely opposed to the project, who fear it would hurt property values and pollute an aquifer that serves the Houston area.

[…]

Landfill opponents say Thursday’s victory will strengthen a separate case as they contest a draft permit issued two years ago to the developer, Pintail Landfill, by the Texas Commission on Environmental Quality.

The judge presiding over Thursday’s civil case, retired Judge Terry Flenniken, could invalidate a 2013 ordinance allowing the landfill now that a jury has found commissioners met illegally. That would reinstate a 2011 city ordinance that had prohibited the landfill, said Corey Ouslander, attorney for the city of Hempstead. Pintail maintains that the ordinance has no weight because it was adopted after they had filed their application with the state.

Flenniken is also set to rule at a Jan. 21 hearing on whether the county had authority to approve the project given that 106 acres falls within Hempstead’s extraterritorial jurisdiction, a bubble around it that could be pulled within city limits once the population increases.

A ruling in opponents’ favor on that element could allow the city to block the project through health and safety codes or other means, Ouslander said.

The developer maintains that it has the necessary permits to proceed, regardless of the verdict.

“We plan to build a state-of-the art facility that will be an asset to Hempstead and to Waller County,” said Brent Ryan, attorney for Pintail Landfill, a subsidiary of Georgia-based Green Group Holdings.

See here and here for the background. A copy of the charge of the court, which includes the questions the jury was asked to resolve and their answers, is here. This may be a short-lived victory for the plaintiffs regardless of this verdict or the rulings to come from Judge Flenniken, as the landfill developers plan to go forward anyway and claim that all they need is TCEQ approval, but it’s still a good win. We’ll see what happens from here. KUHF has more.

Hempstead landfill trial update

It’s complicated.

StopHwy6Landfill

For many in the courtroom, a judge’s promise Friday that the Waller County landfill trial would conclude “before Santa Claus comes” was welcome news. Earlier in the week, they had lamented the possibility that the trial – one over an issue that has divided the rural county for the past two years – would pause and not conclude until February, due to a crowded court calendar.

Yet both the landfill developer’s attorney and members of incoming county commissioners agree that whatever the verdict, the controversy over the proposed 250-acre waste site will be far from over.

“Whatever happens,” Pintail Landfill attorney Brent Ryan said Friday, “we’re going to move forward with the project.”

County Judge-elect Trey Duhon, a landfill opponent, agreed.

“The end of this trial is not the end of the story,” Duhon said.

[…]

Whatever the jury decides – the trial is now expected to continue through Tuesday, pause, and then resume again on Dec. 16 – it is unlikely that Waller County will be left with definitive answers.

The reasons are twofold.

Ryan, Pintail’s attorney, said that the company will proceed with the project regardless of whether the jury invalidates Waller County’s 2013 landfill ordinance and host agreement. The Texas Commission on Environmental Quality, not the county, has the final say over the landfill, and the commission is still reviewing Pintail’s permit application. That proposal is expected to be reviewed in a contested case hearing this summer, commission spokeswoman Andrea Morrow said.

If the state commission were to approve the project and Waller County’s ordinance were invalidated, Ryan said Pintail would be free to develop the project – it just wouldn’t have to provide Hempstead or the county with benefits that had been agreed to.

See here for the background. Originally, the trial was expected to conclude in February due to a crammed court calendar, so I suppose a December conclusion counts as good news. The thought that this won’t settle the matter of whether the landfill can be built or not, and that the decision rests with the TCEQ, is rather unsettling. I’m not exactly sure how that is, but whatever. The point is, one way or the other this fight will go on.

Here come the new ozone standards

I have three things to say about this.

Over the objections of Texas officials, the Obama administration on Wednesday proposed a long-delayed rule to slash levels of ozone – a smog-forming pollutant known to worsen asthma, lung disease and heart conditions.

The regulation is the latest example of the federal Environmental Protection Agency’s use of the Clean Air Act to crack down on the pollution wafting from factories, power plants and tailpipes.

“Bringing ozone pollution standards in line with the latest science will clean up our air, improve access to crucial air quality information and protect those most at risk,” Gina McCarthy, the EPA administrator, said in a statement. “Fulfilling the promise of the Clean Air Act has always been EPA’s responsibility.”

The agency plans to hold three public meetings and open up a 90-day commenting period before finalizing the rule by Oct. 1, 2015.

Bucking the scientific community’s consensus, Texas environmental regulators have suggested that the proposed limits on ozone — which forms when emissions from cars and coal plants mix with other airborne compounds in sunlight — may not improve public health. They have pushed back against any efforts to lower the standard, suggesting such a move would cost too much.

“I am disappointed, but not surprised, that the EPA has proposed these new, short-sighted regulations,” Bryan Shaw, chairman of the Texas Commission on Environmental Quality, said in a statement. “Environmental regulations should be based on good science, common sense and the certainty that they will achieve the stated health benefits. The EPA proposals fail miserably at meeting any of those metrics.”

[…]

Depending on the severity of their ozone problems, regions would have to meet the lower standards by anywhere from 2020 to 2037.

But scrubbing more ozone from the air — through extra pollution controls, air monitors and retrofitted industrial plants — could cost trillions nationwide, industry-funded studies have estimated.

“This new ozone regulation threatens to be the most expensive ever imposed on industry in America, and could jeopardize recent progress in manufacturing,” Jay Timmons, CEO of the National Association of Manufacturers, said in a statement.

Michael Honeycutt, the TCEQ’s chief toxicologist, is among those who question whether lowering ozone levels would improve public health.

“After an in-depth review of the EPA’s analysis, as well as a thorough study of the relevant scientific literature, the TCEQ has concluded that there will be little to no public health benefit from lowering the current [ozone] standard,” Honeycutt wrote in an article for the TCEQ’s October newsletter. “Why regulate something that is not really going to have a benefit?”

For instance, Honeycutt argues that ozone levels have gone down dramatically in the past two decades, but asthma diagnoses have gone up. In Texas hospitals, Honeycutt said, asthma diagnoses actually increase in the winter when ozone levels are relatively low.

Several other scientists who reviewed his article have called it a misleading effort to equate correlation and causation.

1. I’m sorry, but the TCEQ and the industries that it coddles have no credibility on this. Neither the public interest nor objective fact are the TCEQ’s concern. It may be that the EPA is being too aggressive in combating ozone, and it may be that the likely benefit of doing so is not worth what the cost will be. I’m not qualified to evaluate that. What I do know is that no one should take the TCEQ’s word for it.

2. Whichever standard is adopted – the more-lenient 65 to 70 parts per billion standard, or the stricter 60 parts per billion standard – achieving it is not going to be easy.

For Houston, once the nation’s smog capital, the announcement heralded a harsh reality: even after decades of efforts to scrub the lung-damaging pollutant from the sky, the city’s air is not clean enough to breathe safely and might never be.

“All the easy cuts have been made, and there are very few places we can go to make meaningful cuts,” said Taylor Landin, vice president of public policy for the Greater Houston Partnership, a business association. “From our perspective, it’s only fair that they would consider cost.”

[…]

For Houston to reach the proposed mark, air-quality experts said the state might need to impose tougher emissions limits for industrial permits and do more to replace older and dirtier diesel engines for trucks and cranes at the Port of Houston.

The proposed limit poses a daunting challenge for Houston, which is violating the current standard even as its best year for air quality draws to a close. The region is on track to finish 2014 at 80 parts per billion.

“To be effective, and meet this new standard, it will take great cost and effort to reduce emissions from every individual and business in the region,” said Craig Beskid, executive director of the East Harris County Manufacturers Association.

Even environmentalists questioned whether Houston can hit the proposed target. But they said the tougher rule is worthwhile because it would reduce ozone-forming pollution blowing into the region. The EPA estimates that on the region’s smoggiest days, 40 percent of its ozone forms naturally or blows in from faraway sources.

“Would it be possible for Houston in a vacuum? I’m not sure,” said Adrian Shelley, executive director of Air Alliance Houston, an advocacy group. “But it could be possible if the issue is tackled at a larger level.”

I’ve made this point before, but it’s worth repeating that there’s already a cost for the level of pollution that we have now. It’s just that the polluters themselves don’t bear the brunt of that cost – it gets passed on to the public, in a very uneven and unequal fashion. If the EPA’s regulations force the pollution producers to bear those costs, whether they pass them along or not that will be a more equitable situation. And it should be noted that in this case, the polluters includes everyone who drives. We are highly unlikely to meet any new standard without addressing vehicular emissions. That’s going to require some significant changes, and I don’t think we’re ready for that. Ready or not, it’s coming.

Texas Attorney General Greg Abbott, the incoming Texas governor, has sued the EPA at least 19 times. His office did not immediately respond to requests for comment.

3. Alas for Greg Abbott, these changes will not be implemented in time for him to be anything more than a cheerleader for another lawsuit. That will fall to Ken Paxton, assuming he hasn’t resigned in disgrace by the time a suit is ready to go. Not mentioned in that statistic above is Abbott’s won-lost record versus the EPA. I don’t have an exact figure, but I’m pretty sure he lost more than he won. I’d expect Paxton or whoever gets appointed to replace him to continue that tradition. The EDF has more.

Hempstead landfill fight goes to court

An update on a story I’ve been following for a few years.

StopHwy6Landfill

For the last two years, Waller County and the city of Hempstead have been pitted against each other in a high-profile legal battle over a proposed landfill in the city’s outskirts, a project many in the area see as both an economic and an environmental liability.

The proposed 250-acre Pintail Landfill has galvanized area residents and, in March 2013, prompted a lawsuit over the legality of the county’s agreement to allow the facility in an area just north of Hempstead, within the county’s borders. Since then, the case has been appealed numerous times – and its trial delayed accordingly – with the county submitting its most recent appeals just two weeks ago.

On Monday, the long-disputed case may finally go to trial.

“It’s going to be a real big trial for Waller County,” said County Commissioner John Amsler, who is named in the petition against the county but who opposed the landfill along with Commissioner Jeron Barnett. Amsler said he can’t remember any lawsuits of this magnitude in the county of more than 45,000 residents.

[…]

The trial, which is scheduled for Monday in retired state District Judge Terry Flenniken’s court, has been a long time coming, having been twice delayed from its original April date.

And although both the First Court of Appeals and the state Supreme Court denied Waller County’s most recent jurisdictional appeals in the final hours before the Thanksgiving holiday, it is still possible that the trial may be pushed back yet again.

James Allison, an attorney representing Waller County, cited outstanding questions about the county’s authority in Hempstead’s extraterritorial jurisdiction as the reason for the county’s most recent appeals. Friday, he reasserted the need for the trial to be postponed.

See here, here, and here for my earlier posts on this. This Chron story from August was about the judge denying a motion to move the trial elsewhere, and aiming for a November date to pick a jury. Close enough, I guess, assuming this doesn’t get delayed again. My sympathies are firmly with the plaintiffs here, for reasons stated in my previous posts. Landfills are yesterday’s solution. The goal should be for there to be no more need for them. The Citizens Against the Landfill in Hempstead website appears to be no longer active, and I couldn’t find a Facebook presence for them, but wherever they are, I’m with them. Good luck, y’all.

“Environmental tort reform”

Oh, hell no.

After failing in their attempt to limit cities and counties’ ability to take industrial polluters to court, some Houston businesses and statewide lobbyists now want to limit how much local governments can collect in penalties, a sort of environmental tort reform effort aimed squarely at a Harris County Attorney’s office they say is seeking high-dollar payouts at the expense of cleanup efforts.

At a legislative committee hearing earlier this year, the powerful Texas Association of Business and attorneys for Waste Management Inc. and a wealthy Houston family being sued by Harris County told lawmakers that the County Attorney’s office has started seeking outrageous penalties unrelated to environmental clean-up costs from entities already cooperating with remediation requirements imposed by the state or federal government. If allowed to continue, they told members of the House Committee on Judiciary and Civil Jurisprudence, the lawsuits could have a “chilling effect” on development and erode property values.

“As a practicing lawyer who advises companies as to what liabilities they may face, like becoming involved with a contaminated property, I have to advise them – based on some of the recent cases – that there is a possibility, as remote as it might be … that you could be penalized for coming on to that site and seeking redevelopment because it is not precluded by the laws as they exist now,” said John Riley, a lawyer for Houston-based Waste Management.

The mega-company and two of its affiliates are facing nearly $2 billion in fines in a lawsuit brought by the county – set to go to trial next month – involving one of the state’s biggest pollution headaches: two industrial waste pits that leached paper mill sludge containing cancer-causing dioxins into the San Jacinto River for almost half a century.

McGinnes Industrial Maintenance Corp. owned and operated the pits – now a federal Superfund site – in the 1960s, filling a 20-acre tract with waste from a now-closed paper mill near the Washburn Tunnel. The company later became part of Houston-based Waste Management.

The County Attorney’s office sued Waste Management, and International Paper Co., in 2011, asking the companies be fined as much as the law allows – $25,000 a day – all the way back to the site’s 1965 opening.

Last year, the companies supported legislation that would have diminished the power Texas cities and counties have had for decades to file such environmental enforcement lawsuits. Two bills that died in a House committee after being fought by Harris County lobbyists would have required the Texas attorney general to settle all such litigation filed by local governments and barred them from hiring outside lawyers on a contingency fee basis.

[…]

At the May hearing, Harris County officials told committee members they were “not sure what the problem is,” emphasizing that the TCEQ typically is listed as a “necessary and indispensable party” in these cases and that they must be approved by Commissioners Court.

“These cases are not filed willy-nilly,” First Assistant County Attorney Robert Soard said.

Soard and other officials who testified, including a TCEQ employee, said such lawsuits are reserved only for the most egregious cases. The county, they said, simply is attempting to recuperate clean-up, legal and other costs associated with contaminated sites and has every legal right to do so.

“Every time we file a case against a large company now we now expect to see them run to Commissioners Court and the press screaming about how unfair we are,” said Rock Owens, who heads the County Attorney’s four-lawyer environmental division. “This never used to happen and now it’s par for the course. Maybe this is an indication that we are finally hitting where it hurts, even if it’s only a little ding.”

Hey, you know what these powerful business interests and wealthy families can do to stop getting sued over these ginormous environmental messes they’re responsible for? They can clean them up in a timely fashion, and they can take all necessary steps to ensure that they don’t create any more such toxic hazards. Until then, as far as I’m concerned, they can STFU.

News flash: Greg Abbott wants to sue the EPA again

Nobody could have foreseen this!

Foretelling a new environmental battle between state and federal regulators, Attorney General Greg Abbott on Monday demanded the U.S. Environmental Protection Agency back down from a proposal to expand the definition of federal waters to include seasonal and rain-dependent waterways.

The proposal “is without adequate scientific and economic justification and, if finalized, would erode private property rights and have devastating effects on the landowners of Texas,” he wrote as part of a public comment period on the proposal, threatening to sue if it’s not withdrawn.

EPA officials say the proposal would stiffen penalties for polluting such waterways. More than 11 million Texans, including many in Central Texas, get drinking water from sources that depend, in part, on the intermittent streams.

“It’s important to protect the whole network of streams that flow into rivers and oceans,” said Ellen Gilinsky, a senior adviser for water at the federal agency. “This rule ensures clean waters for Texans to drink and recreate in, clean water for businesses, and clean water for farmers.”

Texas Commission on Environmental Quality spokesman Terry Clawson said the state agency is “concerned that EPA’s proposed rule expands its jurisdiction under the Clean Water Act without Congressional approval.” A spokeswoman for the attorney general’s office said it had consulted with the TCEQ before filing its letter Monday.

Hey, if you can’t count on the TCEQ to look out for your best interests, who can you count on? And who needs to worry about having a sufficient quantity of clean water in Texas?

David Foster, who heads the Texas office of the advocacy group Clean Water Action, said the state environmental agency has shown little appetite for regulating the waterways. He cited permits that had been issued by the agency to subdivisions seeking to discharge treated sewage into intermittent Hill Country creeks that feed the Barton Springs portion of the Edwards Aquifer.

[…]

“We need a federal backstop,” Foster said. “I shudder to think how the political leadership in this state would regulate these waterways.”

I’m pretty sure they wouldn’t, which is of course the problem. Abbott’s brief is here, for those of you with a more legalistic eye than I have. I wonder if he’s recycling arguments in this case as he has in others. If so, it’s the greenest thing he’s ever done. Clean Water Action and PDiddie have more.

Texas will do just fine under the new EPA clean air regulations

Unless it wants to fail, of course, which is always an option under the likes of Rick Perry and Greg Abbott.

Greg Abbott approves of this picture

Texas could lead the way into a less carbon-intensive future under the Obama administration’s plans to sharply reduce greenhouse gas emissions from coal-fired power plants.

Or the state could have trouble keeping the lights on.

The competing views underscore the exquisite complexity of the rules scheduled to be unveiled Monday. The proposed regulation represents the centerpiece of President Barack Obama’s climate agenda – one that could lead to the shuttering of hundreds of coal plants, the nation’s largest source of carbon pollution.

Already Texas officials are lining up against the plan, with 29 members of the state’s congressional delegation – Republicans and Democrats – voicing concern in a letter to the Environmental Protection Agency. They say the rules could drive up electricity bills, threaten reliability and lead to job losses in a state that pumps far more carbon dioxide into the air than any other.

But environmentalists note that Texas already is shifting closer to Obama’s goals. Last year, 63 percent of the state’s electricity came from sources other than coal.

“We will hear a lot of complaining about the rule, but we have a lot of options in Texas that other states do not have,” said Al Armendariz, a former EPA official who now leads the Sierra Club’s anti-coal campaign in Arkansas, Mississippi and Texas.

Oh, there’s plenty of complaining, all right. The hot air generated by Rick Perry and Ted Cruz alone might be enough to offset whatever gains the Obama administration hopes to make via these new regulations. Just remember, when you hear the usual assortments of gasbags start to bloviate about this, we’ve heard it all before, and they’ve been wrong every single time. Consider this, for example:

Let’s flash back to an article from the Van Nuys Valley News, dated Sept. 10, 1970 — when the Clean Air Act was young and eager and taking aim at unchecked, noxious emissions from U.S. cars. “Ford Motor Co. said yesterday in Dearborn, Mich.,” the item begins, “that some of the proposed changes in the Federal Clean Air Act could cut off automobile production in just five years, lead to huge price increases for cars even if production were not stopped, do ‘irreparable damage’ to the American economy — and still lead to only small improvements in the quality of the air.”

Sound familiar? Are you driving a car nearly half a century later? Yes, those controls had a cost — and so too will future efficiency mandates that the Obama administration has put in place — but in the long view, the view that matters, life will go on and be cleaner for it. Not so sure? Consider that between 1970 and 2011, aggregate emissions of common air pollutants dropped by 68 percent, even as U.S. gross domestic product grew by 212 percent and vehicle miles traveled increased by 167 percent. The number of private sector jobs increased by 88 percent during that same period.

So yeah, pay them no attention. And remember as well, they’re vastly out of step with public opinion:

* Among Americans overall, 69 percent say global warming is a serious problem, versus 29 percent who say it isn’t. Among Americans in the states carried by Mitt Romney in 2012, those numbers are 67-31. Among Americans in states carried by Barack Obama, they are 70-28.

*Americans overall say by 70-21 that the federal government should limit the release of greenhouse gases from existing plants to reduce global warming. In 2012 red states, those numbers are 68-24. In 2012 blue states, they are 72-20.

* Americans overall say by 70-22 that the federal government should require states to limit greenhouse gases. In 2012 red states, those numbers are 65-23. In 2012 blue states, they are 73-21. Even in red states, then, support for the feds stomping on states’ rights (on this issue at least) is running high.

* Americans overall say by 63-33 that the government should regulate greenhouses even if it increases their monthly energy bill by $20 per month. In the 2012 red states, those numbers are 60-35. In 2012 blue states, they are 64-32.

On every one of the above questions, in red states, large percentages of independents and moderates favor action. And more broadly, as you can see, those just aren’t meaningful differences between red and blue states on these questions. This applies even in nearly two dozen coal states [emphasis added].

Who wants to bet the Trib will come out with a poll showing the opposite in Texas? I can see it coming from here. Unfair Park and the Rivard Report have more.

Court rules for the EPA against Texas again

Another win for the environment.

A federal appeals court on Tuesday upheld the Obama administration’s new rules that for the first time limit emissions of mercury and other harmful pollutants from coal- and oil-fired power plants.

In a split decision, the U.S. Court of Appeals for the District of Columbia Circuit rejected a Texas-based challenge to the regulations, saying the federal government acted reasonably to protect the environment and public health from poisonous gases and cancer-causing chemicals released into the air by the burning of fossil fuels.

Developers of the White Stallion Energy Center, a proposed power plant about 90 miles southwest of Houston, challenged the federal regulations, arguing that the new limits would be too burdensome and thus prevent them from securing financing for the project. Several industry groups and 22 states, including Texas, joined the fight.

But a divided three-judge panel ruled that federal law and previous court decisions do not require the Environmental Protection Agency to consider cost when imposing new regulations on electric utilities.

[…]

At the time the EPA finalized the rules in 2012, Texas was home to seven of the top 16 mercury-emitting coal plants in the nation, an Environmental Defense Fund analysis found.

“There is no other state that is going to get as much public health benefit than Texas from the mercury rule,” said Al Armendariz, a former EPA official who now leads the Sierra Club’s anti-coal campaign in the state.

See here and here for some background. I’ve long since lost track of which lawsuit by Texas against the EPA is about what, and I don’t think I have any previous blogging on this specific case, but it doesn’t matter. It’s all of a piece, and it’s all about whether we make the polluters be responsible for their actions or we give them a free pass. The EPA counters claims that these regulations are too costly for business with evidence that the health benefits for everyone else will outweigh those costs. That will never satisfy the polluters, of course, and I presume they’ll appeal this first to the entire DC court, then to SCOTUS. It’s a nice win for now but it’s far from over. The LA Times, the DMN BizBeat blog, the Texas Green Report, and the EDF, which has a separate statement beneath the fold, have more, while Wonkblog reminds us of the disproportionate effect of industrial pollution on minority neighborhoods.

Environmental Defense Fund applauds today’s ruling by the U.S. Court of Appeals in Washington, D.C., denying legal challenges to the U.S. Environmental Protection Agency’s (EPA) life-saving Mercury and Air Toxics Standards (MATS). Today’s court decision rejects flawed legal claims by Texas Attorney General Greg Abbott, one of the opponents of EPA’s vital clean air safeguards for our communities and families.

Attorney General Abbott has sued the federal government 31 times since 2004, needlessly costing Texan taxpayer’s nearly $4 million.

The EPA emission standards at issue establish the first nationwide emission limits on the mercury, arsenic and acid gases discharged from the U.S. fleet of existing coal- and oil-fired power plants, the single largest source of these toxic airborne contaminants.

Mercury exposure can impair the brain development of infants and young children. According to the EPA, each year more than 400,000 infants are born with elevated mercury levels in their blood, but the MATS standards will eliminate 90 percent of mercury emitted from coal-fired power plants. In Texas, the rule will annually prevent up to 1,200 premature deaths, while providing between $4 billion to $9.7 billion in health benefits in 2016 and each year thereafter.

“Today’s decision comes as an unquestionable victory for Texans who care about vital clean air safeguards and protecting our most vulnerable citizens – young children and pregnant women. Rather than waste taxpayer’s money and protect the interests of big fossil fuel companies, Greg Abbott and other state leaders should champion life-saving measures that protect the health and well-being of Texans.”

San Antonio plastic bag ban update

Here’s an update on the city of San Antonio’s effort to regulate plastic bag usage, which may include a ban. It’s written by San Antonio City Council member Cris Medina, who is the point person for the effort.

plastic-bag

Late last year, after multiple conversations with members of the Citizen’s Environmental Advisory Committee (members are appointed by each City Council member and the Mayor), I became aware of the environmental hazards of single-use plastic bags.

For some time, I had seen plastic bags strewn about our parks, caught in trees, and on frequent occasions, I had picked up countless deteriorating plastic bags during community clean-up events. I was well aware of the eyesore that the 335 plastic bags each American uses per year (U.S. International Trade Commission) cause. What I soon came to learn was that single-use plastics are not biodegrading in our landfills. In fact, many of them are making their way into our waterways and wreaking havoc when wildlife ingest shards of bags.

I also learned about the manufacturing process of plastic bags, which requires an incredible amount of energy, often coming from the burning of fossil fuels. Creation, transport, and use of these bags just one time seems wasteful, wouldn’t you agree?

[…]

Recycling is an option, but it is not one that people often use. In 2012, the city’s Solid Waste Management Department initiated a pilot project which had two goals: reduce the number of single-use plastic bags sold at the point-of-sale with the following retailers: JC Penny, H-E-B, Walmart, Target and Walgreens; and increase recycling of single-use plastic bags. The department spent nearly $400,000 on a marketing campaign to convey and encourage implementation of these goals. A 30 percent increase in recycling at the collection bins provided by retailers on-site was accomplished, while no change in the number of single-use plastic bags was had at the point-of-sale. These results mirror results in other cities across the United States.

The reality is that the nearly 100 cities across the county have transitioned away from single-use plastic bags, yet those same cities saw very little increase in recycling curbside or otherwise. San Jose, California, found that only four percent of single-use plastic bags are recycled (City of San Jose, California). The moral of the story here is that while recycling is possible, it is an expensive investment and it is rarely used.

Recycling will be part of our transition. In August of this year, the city will contract with a new recycling vendor who has the proper equipment to sort single-use plastic bags from our blue collection bins.

Through proper handling, San Antonio citizens will be able to recycle single-use plastic bags and other plastic bags, like the ones your produce comes in, by balling multiple bags together and placing that combined apparatus into blue recycle bins. This is an exciting option for San Antonio.

The issue was first discussed last year, and came up again in February but was put off till this month. As we know, multiple cities have taken various approaches to dealing with plastic bags in the past couple of years in Texas. I’m not aware of any studies that have been done to gauge the effectiveness of each approach. I feel confident that Houston will deal with this sooner or later, and it would be nice to know more about how it has gone so far in other cities. One question that I haven’t seen answered anywhere and which is of interest to me as a dog owner is, what is the recommended way to deal with cleaning up after one’s dog if plastic bags are no longer widely available? I presume there’s something, but I haven’t come across it and I haven’t got the fortitude to Google for it right now. Anyone have personal experience with this?

Texas stands with polluters against the EPA one more time

Here we go.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

The Obama administration’s climate change agenda on Monday faced one of its first real tests in front of the U.S. Supreme Court, where Texas and a group of industry leaders challenged an Environmental Protection Agency regulation aimed at limiting greenhouse gas emissions.

The question before the court is whether permits needed by large polluting facilities like power plants, factories and refineries should also restrict emissions of greenhouse gases. Texas and several industry coalitions say the permits, which companies must obtain before building facilities, should not be required for such emissions.

Instead, argued Texas Solicitor General Jonathan Mitchell and Washington, D.C.-based attorney Peter Keisler, permits should only limit emissions of regular air pollutants like sulfur dioxide and nitrogen oxide.

“Greenhouse gas emissions should not be treated the same as other air pollutants,” Mitchell told the court, pointing out that Congress has only passed legislation on traditional air pollutants, not greenhouse gases. “Congress does not establish round holes for square pegs.”

The scope of the question at hand is narrow because it only deals with permitting. In court cases in 2007 and 2011, the Supreme Court upheld the EPA’s ability to broadly regulate greenhouse gas emissions from “mobile sources,” like motor vehicles, and “stationary sources,” like power plants.

Still, if Supreme Court justices agree with Texas and the industry petitioners, the Obama administration’s attempts to combat climate change independently of Congress will suffer a major setback.

“Permitting is one of the most powerful tools in the toolbox,” said Pamela Giblin, an Austin-based lawyer with the firm Baker Botts LLP, which represents many energy and chemical companies that are affected by the regulations. “You’ve got these multibillion-dollar projects; you’ve got bulldozers there waiting until you get the permit. … The agency is never going to have as much leverage over a company as it does when they’re madly trying to get the permission to break ground.”

See here for some background. The Chron sums up what’s at stake.

The EPA made the move to regulate heat-trapping emissions from industrial sources after a 2007 Supreme Court decision that said the agency had the authority to limit greenhouse gases from cars and trucks under the federal law.

As a result, President Barack Obama has tried to bypass Congress by moving his ambitious agenda for addressing climate change through the EPA, angering many Republicans.

In briefs filed with the court, Texas Solicitor General Jonathan Mitchell argued that the Clear Air Act cannot be interpreted to allow EPA’s permitting requirements when the rules cause “preposterous consequences.” By the state’s estimation, more than 6 million industrial sources nationwide would be forced to meet the requirements at a cost of $1.5 billion.

[…]

Legal experts said Texas might not be able to sway the justices because previous court decisions give deference to federal agencies when statutes are ambiguous.

“The Supreme Court has said we defer to the agency if its position is reasonable,” said Thomas McGarity, professor of administrative law at the University of Texas at Austin.

David Doniger, the climate policy director for the Natural Resources Defense Council, said fewer than 200 industrial facilities needed permits in the first two years of the new requirements for greenhouse gases. “So despite all the cries of alarm, the Clean Air Act’s permitting requirements are working just fine,” he said.

[…]

Tracy Hester, professor of environmental law at the University of Houston, described the state’s request as a “classic Hail Mary.”

“Given the court had this whole buffet of issues and still narrowed it to one” when it decided to hear the Texas case, “that makes going for the whole 99 yards unlikely,” Hester said.

Lyle Denniston thinks things went reasonably well for the Obama administration.

As is so often the case when the Court is closely divided, the vote of Justice Anthony M. Kennedy loomed as the critical one, and that vote seemed inclined toward the EPA, though with some doubt. Although he seemed troubled that Solicitor General Donald B. Verrilli, Jr., could call up no prior ruling to support the policy choice the EPA had made on greenhouse gases by industrial plants, Kennedy left the impression that it might not matter.

It was quickly evident that the EPA’s initiatives, seeking to put limits on ground sources of greenhouse gases, almost certainly had four votes in support: Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. They could not seem to accept that, when the challengers themselves are divided on the best way to read the Clean Air Act’s impact on such emissions, the Court should go with one of those choices rather than with the EPA’s.

The most enthusiastic supporter of the industry challengers was Justice Antonin Scalia, although Justice Samuel A. Alito, Jr., asked strongly skeptical questions about EPA’s justification for its actions. Chief Justice John G. Roberts, Jr., revealed little of where he might wind up, acting mostly as a moderator of his more active colleagues, and Justice Clarence Thomas said nothing.

That, of course, left Justice Kennedy. He was quite protective of the Court’s own decision seven years ago, launching EPA into the field of greenhouse gas regulation, and of a reinforcing decision on that point by the Court three years ago. But neither was close enough to the specifics of what EPA has now done, so he seemed short of just one precedent that might be enough to tip his vote for sure.

“Reading the briefs,” he commented to Verrilli, acting as the EPA’s lawyer, “I cannot find a single precedent that supports your position.” It appears that there just isn’t one to be had.

That, then, raised the question: how much would Kennedy be willing to trust the EPA to have done its best to follow Congress’s lead without stretching the Clean Air Act out of shape, as the EPA’s challengers have insisted that it has done? He made no comments suggesting that he accepted industry’s complaint of an EPA power grab.

We’ll know in a few months. Daily Kos has more.

EPA and TCEQ settle lawsuits over flex permits

One less court fight for us and the feds.

The EPA and Texas on Wednesday said they have reached a deal over state permits for industrial air pollution, ending a four-year fight that to some had become a symbol of regulatory overreach by the federal government.

The agreement comes after the federal agency initially rejected Texas’ permitting system, which allows some operating flexibility to oil refiners, chemical makers and others to meet emissions limits.

Despite the EPA’s earlier reservations, the Texas Commission on Environmental Quality’s permit system appears largely unchanged – leaving environmentalists disappointed.

Ilan Levin, an Austin-based attorney for the Environmental Integrity Project, said the system has the same potential loopholes as before. “The flexible permit program has a long history of abuse, and a lot of the damage is already done,” he said.

But Bryan Shaw, the TCEQ’s chairman, said the agreement shows that the federal government “now understands why the program is legal and effective.”

The EPA invalidated the flex permit system in 2010, and later that year threatened crackdowns on plants that didn’t meet federal standard. All of the flex-permitted plants agreed to abide by federal standards in 2011, but in 2012 the Fifth Circuit Court of Appeals – yes, them again – ruled that the EPA had overstepped its authority. The EPA chose not to appeal that ruing, and this settlement is the conclusion of that litigation. The Sierra Club statement on this agreement sums it all up nicely.

“The history of TCEQ’s flexible permitting program in Texas has been almost 20 years of confusion and litigation. As TCEQ itself has acknowledged, every single former holder of flexible permits has now received new standard permits, without a single plant closure or loss of a single Texas job, contrary to the heated rhetoric we got from Chairman Shaw and Governor Perry several years ago.

“Moving forward, if TCEQ stays true to the wording of the new program and only issues flexible permits to truly minor facilities, we don’t foresee major problems.

“However, if our large refineries and chemical plants once again try to hide their emissions with unenforceable flexible permits, we’ll have another 20 years of confusion and litigation.”

Scheleen Walker
Director, Sierra Club Lone Star Chapter

The details always matter. Having the right people at the TCEQ, people who will care about those details, matters as well. TCEQ members are appointed by the Governor. Consider that yet another reason to vote for Wendy Davis this November.

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.

Going after the dumpers

Glad to see this.

NoDumping

City Council District B will be the site of a pilot program in which five surveillance video cameras have been placed in undisclosed locations, [Mayor Annise] Parker announced. The cameras will be monitored in real time by the Houston Police Department’s Environmental Investigations Unit, which will relay information about illegal dumping incidents to patrol officers for follow-up.

Should the three-month pilot project prove effective, the city will buy another 20 cameras under a budget amendment by District B Councilman Jerry Davis.

“The pile of trash behind me is disgusting,” Parker said on the 1500 block of Maxine. “But the really bad news, the worst news, is that we have problems like this all over Houston. It’s bad enough when we have a condition like this in an out-of-the-way area that no one can see and experience. But we have conditions like this in neighborhoods. On tucked-away corners behind houses that our citizens have to deal with every day.”

This year’s city budget included $250,000 to buy new cameras, as well as upgrade those currently in use. The city long has used surveillance cameras to fight illegal dumping, Parker said, but because of changes in technology, including better visuals and reliability, “it was a good time to do this again.”

Parker hopes the program will identify 50 to 80 illegal dumping cases a month. HPD’s environmental investigations unit has investigated 1,159 cases so far this year, said officer Stephen Dicker.

Here’s the city’s press release on the initiative. Note the use of surveillance cameras, which in this instance strikes me as an appropriate way to deploy them to help fight crime. If you’re wondering about HPD having to watch hours of video to catch these dumpers, technology will lend a hand to that effort. I hope that effort turns out to be very successful.

SCOTUS to hear CSAPR appeal

I’m not terribly excited about anything the Supreme Court does these days, but we’ll see about this.

Greg Abbott approves of this picture

The U.S. Supreme Court decided Monday to take a case that has pitted Texas against the Obama administration over a federal rule aimed at reducing air pollution that crosses state borders.

The decision comes 10 months after a split U.S. Court of Appeals for the District of Columbia Circuit ruled that the Environmental Protection Agency overstepped its authority with the new regulation, which was one of the hallmarks of the administration’s recent efforts to improve air quality.

In seeking high-court review, U.S. Solicitor General Donald Verrilli argued that the appeals court’s decision “hobbles the agency … where the need for a strong federal role is most critical.”

The justices accepted the EPA’s appeal of the lower court’s opinion and will hear the case in the term that begins in October.

See here, here, and here for the background. Texas, naturally, was one of the plaintiffs in this lawsuit. The good news is that since the ruling went against the EPA last October, so there isn’t something for SCOTUS to knock down. But I’m sure they can find something if they want to. Hair Balls has more.

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.

Texas versus EPA, round one zillion

The desire to coddle polluters is strong in this one.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

A Texas-led coalition of energy-producing states has asked the Supreme Court to hear a case involving the Obama administration’s efforts to regulate emissions of carbon dioxide and other heat-trapping gases.

The petition, which was filed last week, comes 10 months after a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the legal underpinnings of the Environmental Protection Agency’s first-ever rules limiting emissions of greenhouse gases.

In the 33-page petition, the states said the justices should hear their appeal because the new federal rules are hurting their economies. The EPA “is a runaway federal agency that must be reined in,” Texas Attorney General Greg Abbott said.

[…]

David Doniger, who directs climate policy for the Natural Resources Defense Council, said the argument would be a non-starter with the court.

“The court has ruled that the Clean Air Act covers climate-altering pollution, just like any other pollution,” he said. “I don’t see it reaching a different conclusion now.”

The Supreme Court already ruled in 2007 that the EPA had the authority to regulate greenhouse gases, but that’s not stopping Abbott and his gang. This is as much about politics as anything else. Let’s hope SCOTUS remembers its ruling from six years ago and sends this appeal off to the dustbin.

Protecting polluters

Ridiculous.

Ship Channel circa 1973

It’s never been easy fighting powerful polluters in Texas. A bill approved by a Senate committee today would make it even harder. With a big push from the Texas Chemical Council and the Texas Association of Business, the Senate Natural Resources Committee voted 6-3 today for legislation “streamlining” (read: weakening) the process that communities and environmental groups can use to challenge permits to pollute. (Democrats Rodney Ellis and Carlos Uresti as well as Republican Robert Duncan were the ‘no’ votes.)

“We are very disappointed by the committee’s vote today,” said Environment Texas Director Luke Metzger. “The deck is already stacked against residents when a powerful polluter applies for a permit to discharge chemicals in to our air, water and land.”

Senate Bill 957 by Sen. Troy Fraser (R-Horseshoe Bay) would put limits on contested case hearings, mini-trials in which each administrative law judges hear testimony and evidence from each side. Environmental groups already complain that the process is flawed: The judges can only offer recommendations to the Texas Commission on Environmental Quality. That agency, run by corporate-friendly Rick Perry appointees, often ignores or downplays the judge’s proposals.

However, SB 957 would weaken it even further. Fraser’s proposal would shift the burden of proof from the company seeking the permit—often some of the most lucrative and powerful corporations in the world—to the protestant, often a hastily-formed grassroots group or an environmental organization. The bill would also strictly limit how long the contested case hearing could last; limit who could participate; narrow the scope of the hearing; and eliminate discovery.

Here’s SB957. It’s not the only polluter-friendly bill out there.

Some county governments have found that when it comes to suing corporations over polluted property, hiring a private law firm on a contingency fee basis is the way to go.

But against the backdrop of a multi-billion dollar dioxin case in Harris County, there’s an effort to outlaw those arrangements in pollution lawsuits. The House Committee on Environmental Regulation has scheduled a hearing today on a bill that would ban counties from using private firms, HB 3119.

The bill has the support of the Texas Conservative Coalition Research Institute that compiled a report on what it calls the “dubious practice of employing private lawyers on a contingency basis.”

“The arrangement creates a variety of perverse incentives. A county faces no risk in bringing a suit and the outside, contingency-based counsel has no incentive to settle the suit,” said Brent Connett, communications director for the group.

The group argues that instead, contingency fee deals encourage private firms to enrich themselves at the expense of adequately funding the cleanup of toxic sites.

Harris County, which was the focus of the conservative group’s report, says contingency fee arranagements are vital to its efforts to litigate pollution cases.

“We don’t have money to go out and hire lawyers. You’re talking about, at a minimum, hundreds of thousands of dollars that we would have to spend up front just to go to court. With the contingency fee, we don’t have to do that. We only pay if we win,” said Terrence O’Rourke, special assistant to the Office of the Harris County Attorney.

[…]

[Harris County] points out that the big corporations fighting the suits often use very experienced, highly-paid attorneys.

“They’re spending millions on their lawyers and Harris County can’t afford that. We’ve got contingent fee lawyers,” says O’Rourke, the county’s special assistant.

The point of taking cases on contingency is that it only pays to take cases you think can win. Otherwise, it’s a lot of hours down the drain for nothing. One could argue that it’s the attorneys for the polluters that have no real incentive to settle, since they get paid by the hour. But maybe as a compromise, we could set up a public defender system for the businesses that find themselves plagued by these suits, to represent them free of charge. Think the polluters would go for that? Yeah, me neither.

Here’s the Chron on these two bills:

“It surprises me a little bit because there is no history of us settling cases in opposition to the attorney general or against the wishes of the attorney general,” said Rock Owens, who heads the environmental division in the Harris County Attorney’s office, which historically has filed the most civil environmental lawsuits in the state.

Owens said the legislation would diminish an authority local governments have had for decades to punish environmental offenders, and also make for an uneven playing field as governments cannot afford to pay private attorneys on an hourly basis like the companies they sue.

While the county has been filing environmental cases for a long time, it only recently began recruiting outside counsel. Six cases have been relegated to private firms.

[…]

Harris County Judge Ed Emmett said the county has not taken an official position on hiring outside lawyers on a contingency fee basis, but that all counties “ought to be able to make those decisions on their own.”

Once again I note the irony of people who rant and rage about the federal government telling Texas what it can and can’t do but who are lining up to tell various local governments, often in localities far from their own home districts (Rep. Cindy Burkett, author of HB 3119, is from the suburbs of Dallas), what they can and can’t do. The good news is that SB957 likely won’t get past the Senate’s two-thirds rule, while HB3119 hasn’t yet been voted on in committee. If we’re lucky, it won’t have enough time to make it through, or it too will die from insufficient Senate support. But until they both do die, they’re menaces to be watched.

Still fighting the Waller County landfill

I’ve written before about a battle in Waller County over a proposed landfill that would be built there. While the landfill has moved closer to being approved, it’s not yet a done deal, and its opponents are still fighting against it.

“This landfill has done more to divide our county than anything I’ve ever seen. It breaks my heart,” said Waller County Judge Glenn Beckendorff.

Those opposing the proposed Pintail landfill have so far sent a near record 6,000 emails and letters to the Texas Commission on Environmental Quality, urging the agency to deny the permit.

But Green Group Holdings President Ernest Kaufmann contends the protest typifies the “not in my backyard” syndrome that happens whenever his company tries to put in a new landfill.

“Unfortunately, it’s the same argument that you hear wherever you go. It’s always about the groundwater and the smell,” he said. “But our landfills are engineered to be very safe.”

Waller County, which currently has no operating landfills within its borders, transports its waste to Harris, Fort Bend and other counties.

Kaufmann said the landfill is needed to meet needs of the community. “Growth in Waller County and the surrounding area is inevitable,” he said.

According to state records, the proposed landfill will be about 17 percent larger than the average landfill in Texas.

Pintail’s application estimates 161 vehicles a day will haul about 429,000 tons of garbage – none coming from outside the state – to its site each year. That number is expected to grow to 292 vehicles a day once the landfill is fully established, the application states.

The disposal area would be confined to 223 acres with other acreage used as a buffer or a potential industrial park.

Eventually, over decades, a mountain of waste would be dumped there. It will rise roughly 150 feet, or as tall as a 15-story building. Only about 5 percent will come from Waller County.

Boy, I can’t imagine why anyone wouldn’t want that in their backyard. Opponents of the landfill cite factors such as water contamination and discouraging other development in the county; the proposed site is off Highway 6, not far from Prairie View A&M. While these are very valid concerns, I think building giant new landfills anywhere is a bad idea. Frankly, it’s not clear to me that the demand will be there for this landfill, what with cities seeking to reduce the amount of waste they generate, and the amount they have to spend on things like landfill space. Landfills are yesterday’s solution, not tomorrow’s. As much as anything I’d be worried about being stuck with an albatross. I hope the folks who are asking the TCEQ to deny the permit have some luck getting through to them on this.

Houston loses air pollution permit lawsuit

Bummer.

Ship Channel crica 1973

The Texas Supreme Court ruled Friday that Houston may not effectively void a state air pollution permit.

The justices agreed with Southern Crushed Concrete that Houston’s 2007 law restricting the location of concrete-crushing facilities violates state statute by nullifying a permit issued by the Texas Commission on Environmental Quality.

In reversing an appeals court decision, Justice Debra Lehrmann said the state’s Health and Safety Code is clear.

The law “compels us to give effect to the Legislature’s clear intent that a city may not pass an ordinance that effectively moots a Commission decision,” Lehrmann wrote in an opinion for the nine-member court.

City Attorney Dave Feldman said he was not surprised by the ruling because “any time you have a local ordinance that regulates a specific area that is regulated by the state, preemption is an issue that you have to deal with.”

[…]

Southern Crushed Concrete’s facility meets the state’s requirement, but not the city’s. So the company sued, claiming the city did not have the authority to regulate its business.

Houston countered that the state’s permit regulates air pollution, while its ordinance dealt with land use. The Supreme Court, however, disagreed, ruling that reasoning would allow a city to effectively void any TCEQ permit it opposes.

I think there was merit in Houston’s ordinance, but I can see the reasoning behind the Supreme Court ruling. Mostly what this points out is that as usual, the state isn’t doing as much as it could to protect the environment and the health of people who live a little too close to places like the Southern Crushed Concrete facility. I also find it amusing in a way that this ruling that affirmed the state’s supremacy over cities came out around the same time that League City was declaring its supremacy over the federal government. I wonder what the Supreme Court would say about that? Anyway, this story isn’t quite finished yet, since the matter has been referred back to the TCEQ, where Houston can pursue an appeal of its initial permit to Southern Crushed Concrete. Perhaps the city can lobby for a modification to the state law that would allow local ordinances to be taken into account by the TCEQ when reviewing permit requests as well.

White Stallion coal plant deep sixed

I mentioned this in passing the other day, but the news that White Stallion has been shelved deserves its own post.

Developers have dropped plans for the White Stallion Energy Center about 90 miles southwest of Houston, signaling the end of a once heady rush to build several new coal-fired power plants across Texas.

White Stallion is the latest abandoned coal-burning project amid record low prices for natural gas and increased environmental scrutiny. The decision announced Friday means that Texans might not see another coal plant built after an 800-megawatt unit near Waco comes online in April.

The demise of the White Stallion project “hopefully represents the last dying gasp of ‘new’ coal plants in Texas proposing to employ technologies from the last century,” said Jim Marston, who leads the energy program for the Environmental Defense Fund.

Texas now has 19 coal plants, but once had plans for more. In 2005, Gov. Rick Perry issued an executive order that put their permits on the fast track, but most approved projects were never built.

The natural gas boom, driven by low prices on natural gas, is the single biggest reason why White Stallion and many other proposed coal plants were scrapped, and the main reason why there are no new coal plants on the horizon after the Waco plant was built. But that wasn’t the only factor – the Environmental Protection Agency did its job, too.

White Stallion had run afoul of new federal limits on emissions of mercury and other toxic pollutants. The project’s developers had asked the U.S. Court of Appeals for the District of Columbia Circuit to review the regulations, but the case is on hold.

The project also faced the EPA’s first-ever limits on emissions of carbon dioxide and other gases linked to global warming from new power plants.

And it did not have the support of many locals.

See here for the last update I had regarding litigation over the EPA’s regulation of greenhouse gases. As State Impact notes, White Stallion was in danger of seeing its state permit expire before getting an answer one way or another from the courts, and that would have meant needing to start over, which wasn’t going to happen. Pulling the plug was their only choice. While this is very good news for clean energy proponents, it’s not all good:

“The only downside of this shift to natural gas is that it has made the challenge for renewable energy to be competitive without subsidies even greater,” Rep. [Mark] Strama says. “Because any time that lower-priced natural gas power electricity displaces coal, for the same reason it tends to displace wind and solar. I think this story highlights again the need for a renewable strategy in Texas.”

To that end, Strama has advocated for state incentives and subsidies for more solar and coastal wind projects, which could help the state during hot summer days when demand for electricity is at its peak. He has filed legislation to that end, and is more hopeful that it stands a chance this legislative session.

“Let me put it this way,” Strama says. “We were really close in 2009 to passing meaningful legislation around renewables. [Then] we didn’t come very close in 2011. But this year feels a little more receptive to having a discussion.”

Some of what needs to be done to promote renewable energy in Texas is regulatory and not legislative, but either way there are things to do. In the meantime, let’s celebrate a win for a cleaner tomorrow. The Environmental Defense Fund has more.

We’ve got mercury, yes we do

Once again, Texas overachieves at something bad.

Martin Lake coal plant

Even though mercury and other hazardous air pollution from U.S. power plants are declining, the progress at the coal-fired power plants are uneven, leaving in place a significant remaining risk to the health of the public and environment, according to a new report by the Environmental Integrity Project (EIP).

Coal-burning power plants release millions of pounds of toxic pollutants into the air every year, including mercury and carcinogens like arsenic and chromium. US EPA’s Toxics Release Inventory (TRI) can be used to identify the largest sources of these dangerous pollutants based on annual reports the electric power industry submits to the Agency under federal Right to Know laws. Mercury is a potent neurotoxin, especially harmful to developing fetuses and young children.

Available online at http://environmentalintegrity.org/news_reports/01_03_2013.php, the new EIP report uses TRI data for 2011 (the most recent full year available) to identify the 10 largest sources of power plant mercury emissions – five of these are in Texas, of which four are owned by Luminant Generation.

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EIP Attorney Ilan Levin said: “Nationwide, equipment has been installed over the years to reduce emissions of sulfur dioxide and particulate matter. That has helped cut down on the release of mercury, toxic metals and acid gases from power plants over the last ten years. However, that progress is uneven, and the dirtiest plants continue to churn out thousands of pounds of toxins that can be hazardous to human health even in small concentrations. For example, emissions of mercury from coal-fired power plants have actually increased in the last decade in the state of Texas.

Levin added, “Emissions from local power plants deposit mercury and other toxic metals in nearby rivers and streams, where these pollutants concentrate in aquatic organisms at levels that can make fish unsafe to eat. The fact that so few plants are responsible for so much of the mercury pollution makes the solution less complicated; the dirtiest sources need to clean up their act.”

You would think, given his deep and abiding love for fetuses, that Rick Perry would be all over this. You would, of course, be wrong. The full report is here; note that not only does Texas have five of the top ten, we have four of the top five. And as the report notes, the news just keeps getting better.

Fortunately, mercury emissions from coal-fired electric power plants have declined over the past decade, from 88,650 pounds in 2001 to 53,140 pounds in 2011. States like Maryland have cut mercury emissions from coal plants at least 80 percent through tough new state standards, while reductions in other states are a byproduct of pollution controls installed to meet other federal standards. For example, scrubbers that reduce sulfur dioxide to comply with acid rain or fine particle standards will also remove mercury. These reductions have not been evenly distributed; for example, mercury emissions from Texas power plants have actually increased since 2001. That matters, because rivers and lakes closest to power plants are the most likely to be the hardest hit by power plant mercury pollution.

The EPA’s long-delayed Mercury and Air Toxics (“MATS”) rule, which gives power plants until February of 2015 to comply, would level the playing field by requiring the industry’s laggards to catch up with companies that have already cleaned up their plants. EPA estimates that the rule will cut annual power plant mercury emissions to just over 13,000 pounds by 2016, about 75 percent below current levels. But the rule is being fiercely challenged by Luminant and other companies seeking to avoid the cost of the pollution controls needed to meet the new standard.

Yes, they are fighting it fiercely. See here, here, and here for some background. After that story about the connection between lead contamination and crime rates, we should all be very, very afraid of anything that dumps large quantities of heavy metals into our air, water, and soil. There is one bit of genuine good news in all of this, and that is that the proposed White Stallion coal plant has been cancelled, and with the boom of natural gas there’s no new coal-burning plants on the horizon. That won’t do anything to help mitigate the effects of the plants we have now, but at least it won’t get any worse.