From the Texas Tribune: Paxton Blasts Clean Power Plan Ahead of High-Profile Legal Arguments

More conflict between Texas and the EPA.

- Click here for the article.

Texas Attorney General Ken Paxton on Monday accused the U.S. Environmental Protection Agency of trying to “force Texas to change how we regulate energy production,” through what he called an “unprecedented expansion of federal authority.”

“What we need is more reliable energy — not less, and the EPA is trying to stop that,” the Republican said while appearing on a panel in Washington, D.C.

Paxton specifically targeted the Clean Power Plan, President Obama’s state-by-state effort to fight climate change by shifting away from coal power to cleaner-burning natural gas and renewable resources.

His appearance on the panel, organized by the conservative Texas Public Policy Foundation, came one day before the U.S. Court of Appeals for the District of Columbia is to hear four hours of oral arguments over the carbon dioxide-cutting rule. Those watching the litigation say the outcome could make or break Obama’s legacy on climate change.

Mentioned in the article:

- The EPA.
- The Clean Power Plan.
- Texas Public Policy Foundation.
- U.S. Court of Appeals for the District of Columbia.
- Environment Texas- Brattle Group
- Texas Clean Energy Coalition.
The case being considered by the DC court is State of West Virginia v EPA.

The Texas Supreme Court hears arguments from the oil industry against the right of Houston to regulate pollution.

State limits on local autonomy have been in the news all year - mostly in the legislature - but now the judiciary weighs in. An industry group wants Houston's clean air ordinance declared unconstitutional

The case is called BCCA Appeal Group Inc. v City of Houston.

- Click here for the oral arguments before the Texas Supreme Court.
- A description of the case from the U.S. Chamber of Commerce.
- Case file.
- Houston’s environmental protection ordinances go to the Supreme Court.

- Some detail from the Texas Tribune: Houston Argues for Right to Regulate Pollution.

Two ordinances passed by the city of Houston to regulate air pollution reflect the spirit of the Texas Clean Air Act and state environmental regulations and should be allowed to stand, lawyers for the city argued on Wednesday before the Texas Supreme Court.

The ordinances, passed in 2007 and 2008, require industrial polluters to register with the city and follow state emission guidelines, at risk of being fined. The local rules are necessary, attorney Robert Higgason argued on Houston's behalf, so the city can plug gaps in environmental enforcement left by the Texas Commission on Environmental Quality.
“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,” 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.”

Now there is conflict between the city of Houston and the state of Texas over the enforcement of pollution rules

Not only the national government opposes Texas' approach to pollution control - or lack thereof. So does Houston. Again, the Texas Tribune:

- Houston Seeks to Keep Power to Police Air Pollution.

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.”

The next round in the battle between Texas and the EPA

The Texas Tribune reports on the latest chapter of the never ending conflict between the government of Texas and the United States Environmental Protection Agency. More specifically, its between the business interests within the state of Texas which focus on extracting and processing natural resources and heavily influence that activities of the state government and the environmental forces that look to minimize the side effects of those processes and are represented on the national level.

It's classic federalism.

- Click here for the article: Judge Casts EPA Rule into Muddy Legal Waters.

After a setback in court Thursday, can the federal government enforce its controversial "Waters of the U.S." rule in Texas?

The U.S. Environmental Protection Agency says yes. Texas says no.

The agency on Friday said the regulation, aimed at better defining the scope of bodies of water protected under the federal Clean Water Act, took effect in Texas and several other states, rankling Texas Attorney General Ken Paxton.

The confusion started Thursday. Hours before the regulation was set to take effect, U.S. District Court Judge Ralph Erickson of North Dakota granted a request from 13 states — not including Texas — to block the rule, which would allow the federal government to regulate small streams and wetlands.

The debate over the EPA rule has to do with what the term "navigable waters" means, as well as the extent of the judges decision regarding the implementation of the rule.

For background over the question of what "navigable waters" means click on the following:

- EPA Seeks to Clarify Federal Water Law.

In 2000, when the Chevron Pipe Line Co. spilled 126,000 gallons of oil into a creek in West Texas, no water was flowing in the tributary. When the federal government sued the company under the Clean Water Act, though, a federal trial court judge ruled in the company's favor, arguing that the oil had not reached “navigable” water.

The EPA said that the clarifications the agencies are seeking do not add new bodies of water to its jurisdiction, they just explain that both wetlands and intermittent streams that often dry up in the summer are included in the act's definition.

“It is universally understood that term ("navigable water") includes many kinds of non-navigable waters,” said Jon Devine, senior attorney at the Natural Resources Defense Council. “The agencies are seeking to protect those water bodies that have a significant affect on waters that are navigable.”

But opponents of changing the federal rules say the EPA is overstepping its bounds, and that it could damage private property rights in the process.

“This potentially could allow for the federal government to require a permit to do anything on your land,” said Steve Pringle, legislative director of the Texas Farm Bureau. The Farm Bureau Federation is one of 29 groups in the Waters Advocacy Coalition that is lobbying against the EPA changes on behalf of the construction, mining, agricultural and energy interests.

Before 2001, the EPA and the Army Corps of Engineers believed the Clean Water Act protected almost all of the waters in the U.S. But in 2001 the U.S. Supreme Court ruled that the Clean Water Act did not protect an abandoned sand and gravel pit that had evolved into permanent and seasonal ponds — and that a solid waste agency wanted to fill.

A 2006 Supreme Court case in which a plaintiff filled 22 acres of Michigan wetland with sand in preparation for the construction of a mall only added to the confusion. The plaintiff argued that since the land was 20 miles from a navigable waterway, he wasn't breaking the law. The high court did not reach a majority opinion and remanded the case to a lower court; in that case, the Supreme Court justices each wrote individual opinions of what constituted "navigable waters."

“That Supreme Court case created mass confusion. It created room for additional defenses," said Daniel Cooper, a partner at Lawyers for Clean Water, which supports the proposed changes. "Clearly this will create more clarity of what is covered by the Clean Water Act. I think this will decrease the amount of litigation.”

"Texas has sued the EPA 21 times since President Obama took office in 2009"

That's a quote pulled from the following story in the Texas Tribune on a recent decision concerning the EPA's Cross-State Air Pollution Rule.

- Click here for the article.
- Click here for the rule.

Pollution - nitrogen oxide and sulfur dioxide specifically - from Texas tends to float upwind and affect other states. The rule allows the EPA to regulate power plants here and elsewhere that causes such pollution - which of course raises objections here.

Texas sued the EPA and the U.S. Court of Appeals for the D.C. Circuit ordered the rule be reconsidered, but also ruled that the EPA did have jurisdiction to issue such rules. This allowed each side to claim a victory.

The story also links to a list of all the lawsuits filed by the state of Texas against the EPA. Its a good way ti com to grips with the conflict between the national and state governments regarding pollution.

- You can peruse them here.

What is the Clean Air Act?

Since Michigan v EPA involved questions about the propriety of how the Clean Air Act was implemented, it's worth linking to some background on the Act itself - in addition to some history of air pollution legislation.

1955 - Air Pollution Control Act. Provided funding for research into the study of the causes and health consequences of air pollution, in addition to how it could be controlled. The research was to be done for 5 years by the Public Health Service. It was amended in 1960 and 1962 to extend funding and to authorize the Surgeon General's Office to student the effects of motor vehicle exhaust.The act did not establish a mechanism for implementing any solution to the problem.

1963: Clean Air Act of 1963. Created emission standards that could be applied to "stationary sources" which is the fancy term for factories and industry. It highlighted high sulfur coal as a source of pollution. It furthered funding of research and investigations of suspected polluters. It was amended to establish standards for automobile emissions in 1965. It was also amended in 1966 to assist local air pollution control programs, in 1967 to create air control regions and establish timetables for implementing state pollution plans and in 1969 to fund research into low emission fuels.

1970: National Environmental Policy Act. Creates President's Council on Environmental Quality.

1970: Clean Air Act of 1970. This is the most important of the bunch.Establishes the National Ambient Quality Standards which focuses on the reduction of a set of pollutants including carbon monoxide and ozone. Amendments added in 1977 modified the act's goals.

1970: Richard Nixon establishes the Environmental Protection Agency with an executive order. It is established to implement the requirements contained in the Clean Air Act.

1990: Clean Air Act Amendments. Focuses on the reduction of acid rain and leaded gasoline.

- EPA: History of the Clean Air Act.
- Clean Air Act Implementation in Houston: An Historical Perspective 1970-2005.
- EPA: Understanding the Clean Air Act.
- Clean Air Timeline.

The Supreme Court rules that the EPA has to consider costs and benefits when it issues rules under the Clean Air Act

The case is Michigan v EPA, and is yet another 5-4 decision with Justice Kennedy deciding which side wins.

- ScotusBlog: Michigan v. Environmental Protection Agency.
- Oyez: Michigan v. Environmental Protection Agency.
- Click here for the decision.

Here is the issue presented to the court from ScotusBlog:

Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

And the facts of the case according to Oyez:

The 1990 amendments to the Clean Air Act require that the Environmental Protection Agency (EPA) regulate electric utility steam generating units (EGUs) if it finds that such regulation was “appropriate and necessary” after conducting a utility study. In December 2000, the EPA issued a notice that such regulation was necessary based on the results of the utility study, which showed that the mercury emissions from EGUs were a threat to public health. In 2005, the EPA reversed its findings and determined that it was not “appropriate and necessary” to regulate coal- and oil-fired EGUs. States and other groups petitioned for review, and the U.S. Court of Appeals for the District of Columbia Circuit held that the EPA’s attempt to reverse its findings was unlawful because it could not remove pollutant sources from the regulation list once they were on it. In 2012, the EPA confirmed that EGU regulation was necessary and promulgated emission standards. State, industry, and labor groups petitioned the appellate court for review of the EPA’s interpretation of the “appropriate and necessary” requirement with respect to these regulations. The appellate court denied the petition.

For media coverage:

- NYT: Supreme Court Blocks Obama’s Limits on Power Plants.


- The Hill: Supreme Court overturns landmark EPA air pollution rule.
- WaPo: Supreme Court: EPA erred in rule on toxic emissions from power plants.

Who gets to implement state pollution laws? The cities or the state?

Each responds to different political pressures so they do not necessarily approach their jobs the same way:

From the Texas Tribune:

In the 1950s, decades before LeRoy Melcher became a well-known real estate tycoon and philanthropist, he opened his first shopping center on San Felipe Road in the River Oaks neighborhood.

It was a modest 12,000 square feet, with a convenience store at one end, and at the other, a shoe repair shop. Tucked in between was a dry cleaner.
Sixty years later, it sits in one of Houston’s most expensive neighborhoods and has become the epicenter of a contentious debate over the enforcement of the state’s environmental laws.

On one side is Harris County, which blames the Melcher family and its tenant, River Oaks Cleaners, for a toxic plume of chemicals detected beneath the property. The plaintiffs are seeking penalties of between $50 and $25,000 per day going back nearly two decades – up to roughly $173 million.

On the other side are Melcher’s heirs, who have refused to settle for anything more than $1. LeRoy Melcher, who died in 1999, and his wife donated millions to charities and the University of Houston, which has three buildings on campus bearing their names.

The legal battle has become a flashpoint for some Republican lawmakers and business leaders in Texas, who think local governments shouldn’t be leading the charge to prosecute the Melchers — or anyone else — over violations of state law. In such cases — including this one — the state must join the case as a plaintiff.

And from Houston Public Media:

Darryl Tate is following his nose down a dead end street in a mostly industrial area in northwest Houston.

“I know the winds are out of the north today,” Tate said.

What’s blowing in the wind is important because Tate investigates environmental complaints for Houston’s Bureau of Pollution Control and Prevention. He came here to see what stinks.

“This is the facility here, we are on the backside. They recycle grease from restaurant grease," the investigator said. "It smells...hard to describe...old, rank grease.”

Tate said the company has been trying to mitigate the odors by using misters to dilute it and by burning hickory wood to mask it.

He likes his job because he never knows where it will take him.

“We go from petrochemical plants down to a neighbor painting a fence,” Tate said.

People file complaints; the city then investigates and then can cite violators under state and local pollution regulations.

“We follow state guidelines,” Tate said.

But big chemical plants and oil refineries are now taking issue with the work of Houston’s pollution police. In a case scheduled to be heard later this year before the Texas Supreme Court, a group of big energy companies will argue that the City of Houston is breaking Texas law.

The big companies - which include ExxonMobil and Conoco Phillips - say only the state can legally enforce Texas environmental laws. Lawyers for the industry did not make themselves available for an interview. But in briefs filed with the court, they argue that Houston is going rogue, enforcing state pollution laws because: “Houston disagrees with the TCEQ’s enforcement actions. 

From StateImpact Texas: Bill Would Stop Private Lawyers Who Help Counties Sue For Pollution

The bill is HB 3119, and it is still in a House committee which makes it unlikely it will pass, but the bill would change the ways counties pay for law firms they hire to sue companites they accuse of pollution. The bill seems focused specifically on Harris County:

Here's the report:

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.

. . . 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.

The issue is nothing new to the county. In a case before the Texas First Court of Appeals, attorneys for two corporations challenged Harris County’s right to hire contingency fee lawyers in a case involving a dioxin-contaminated site along the San Jacinto River. In the 1960s, waste from a paper mill was dumped into ponds. It’s now an EPA Superfund site. Signs in the area warn that fish are contaminated and should not be eaten.

Lawyers for the companies argued in court that the case could result in $2 billion to $3 billion in civil penalties with 25 percent going to the private lawyers, according to coverage of the hearing by Law360. The companies’ lawyers reportedly said that the contingency fee arrangement created a profit incentive that would be unfair to their side, denying them a neutral prosecution of the case.

The Office of the Harris County Attorney portrays the fee arrangements differently. The county argues that contingent fee contracts are reviewed and approved by the Texas Comptroller and are governed by state law that caps payments according to the amount of work performed.

And the county points out that the big corporations fighting the suits often use very experienced, highly-paid attorneys.