© 2016 The Texas Lawbook.
By Susan Carroll of the Houston Chronicle
(April 30) – The Texas Supreme Court on Friday struck down Houston’s air quality ordinances, ruling the city overstepped its authority to police polluters and handing industry advocates a major victory.
In an 8-1 decision, the justices ruled that ordinances requiring businesses to pay registration fees and allowing criminal sanctions for emissions violations were inconsistent with state law.
The Business Coalition for Clean Air Appeal Group, which includes giants such as Exxon Mobil and Dow Chemical Company, accused the city in a 2008 lawsuit of creating an “enforcement regime” that goes beyond its role permitted under state law.
In 2014, about 2,800 businesses were registered with the city, which collected nearly $1.5 million through the program that year.
“What the city is trying to do is not consistent with what the Legislature has decided,” said Evan Young, an appellate law partner at Baker Botts in Houston. “We are pleased with the Court’s decision today in what is a cutting edge area of law that greatly affects the state’s energy and environmental standards processes.”
“This ruling that Houston’s ordinance is preempted by the Texas Clean Air Act is a win for the state’s standard for clean air and also for the state’s economy,” said Young, who argued the case before the state’s highest court.
Young argued that Houston’s ordinance was inconsistent with the enforcement requirements of state law, which are implemented by the TCEQ.
“The Houston ordinance turns what should be an administrative or civil law dispute about pollution into a local, criminal matter,” he said.
City Attorney Donna Edmundson issued a statement saying the court’s decision “will not dampen the city’s efforts” to assist the Texas Commission on Environmental Quality with the enforcement of environmental laws. The statement said the city will employ “other legal mechanisms” allowed under state law to monitor and take action against polluters. A spokeswoman said the city hadn’t decided whether to appeal.
Adrian Shelley, executive director of the advocacy group Air Alliance Houston, said the decision was “not the least bit surprising” but dismaying nonetheless.
“It’s pretty in-keeping with both previous judicial decisions and the direction in which our state government is moving,” he said. He cited the state Legislature’s passage of a bill last session that caps the amount local governments can collect through environmental lawsuits, Gov. Greg Abbott’s filing of a brief in support of the industry advocates in this case, and a prior legal case that made its way to the Texas Supreme Court.
“There will be more polluters who pollute with impunity,” Shelley said. “There will be a little poorer public health in the city as a result.”
For a longer version of this article, please visit the Houston Chronicle at www.houstonchronicle.com.
To read the entire Texas Supreme Court opinion, please click here: www.txcourts.gov.
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