Following Internal Review of Texas Environmental Regulators, Critics Demand Reform

This is Part 2 of a two-part series on the Texas Commission on Environmental Quality. Read the first story here.

New legislation is advancing in the Texas House that would reauthorize the Texas Commission on Environmental Quality. House Bill 1505, the TCEQ reauthorization bill, represents the culmination of what’s known as a “sunset review,” a process that occurs once every twelve years and determines whether a state agency should be reauthorized or abolished. In the case of reauthorization, which will almost certainly be the fate of TCEQ, the sunset review is a rare opportunity to introduce reforms.

Environmental and public health advocates had hoped that a TCEQ reauthorization bill would address longstanding complaints about the disproportionate burden of industrial activity on communities of color, make it easier for citizens to contest permits for polluters, and remove economic development from the agency’s remit. But the staff charged with reviewing the agency to submit recommendations to the Legislature declined to call for several environmental justice and accessibility reforms that were top priorities among activists.
 

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Environmentalists and public health advocates had pushed for the creation of an environmental justice office within TCEQ that would have the authority to include factors related to environmental justice in permitting decisions. The federal Environmental Protection Agency — which delegates regulatory authority to TCEQ under the Clean Air Act and Clean Water Act — opened an environmental justice office in 2022, charged with focusing on “the needs of minority communities overburdened by pollution and [overseeing] the delivery of $3 billion in environmental justice grants created by the recent passage of new climate legislation.” Activists urged the Sunset staff to recommend that TCEQ follow suit, but they declined. 

According to Air Alliance Houston’s executive director, Jen Hadayia, people of color make up the majority of Texans living in EPA-designated “nonattainment areas,” where levels of a particular regulated contaminant exceed federal National Ambient Air Quality Standards (NAAQS). People of color comprise about 66% of residents in the Houston-Brazoria-Galveston region, home to some of the largest petrochemical facilities in the world; about 89% of residents in the transborder El Paso-Las Cruces region, which also boasts several large refinery complexes; 56% in Dallas-Fort Worth, and 74% in San Antonio.

Calling attention to the fact that petrochemical and other industrial facilities tend to cluster together in communities that score poorly in terms of environmental justice concerns, activists urged the Sunset staff to recommend giving TCEQ the authority to consider cumulative impact when evaluating permit applications. Currently, TCEQ considers permits in isolation, evaluating whether a proposed new facility or expansion would emit air or water pollutants in excess of state and federal limits. But pollution never exists in isolation, whether air, water or noise, and Texans who live in places like Houston’s Fifth Ward — like Delores McGruder, who testified in a March hearing on the TCEQ reauthorization bill — amid a sprawling tangle of permitted facilities that, taken together, grossly exceed state and federal pollution limits.

“They just pretend those other sources don’t exist,” said Gabriel Clark-Leach, an Austin-based attorney with the Environmental Integrity Project, “and that the proposed source will act as represented in its permit application, 8,736 hours per year, assuming perfect operation, excluding poison being emitted by other facilities, and on top of that, not doing anything to cut down on illegal emissions from existing sources.” 

The Sunset staff declined to recommend the consideration of cumulative impact in the permitting process and it is not addressed in the current bill.

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The perception of poor air quality among residents of major industrial areas in Texas is backed by government air monitoring data. In 2022, the EPA downgraded the eight counties known as the Houston-Brazoria-Galveston region to a “severe nonattainment” area rating for ground-level ozone, an airborne chemical compound that can damage airways and cause chronic bronchitis, asthma and emphysema. Ten counties in the Dallas-Fort Worth region earned the same rating. 

The EPA is currently investigating a complaint of environmental racism and civil rights violations brought by the Harris County Attorney Christian D. Menefee and nonprofit Lone Star Legal Aid against TCEQ in the wake of the agency’s decision to unilaterally alter permit requirements for concrete batch plants, which are often clustered together in disadvantaged communities. Batch plants emit particulate matter and crystalline silica, which are linked to respiratory disease and cancer. 

A separate EPA investigation prompted by complaints from citizens’ groups in the Corpus Christi area is looking into TCEQ’s failure to adequately regulate wastewater discharges in adherence with the federal Clean Water Act. A finding in either investigation that TCEQ has failed to comply with federal law could result in withdrawal of delegated authority, meaning regulation of Clean Air and Clean Water Act standards would revert to the EPA.

According to Gabriel Clark-Leach, TCEQ’s reputation as a “reluctant regulator” owes partly to its reluctance to penalize violators. Fines are rarely levied, and almost never at the existing maximum cap of $25,000 per day, making the proposed raising of the daily cap to $40,000 something of a moot point, unless it’s accompanied by a new will to use enforcement tools. The EPA’s cap for administrative fines under the Clean Air Act is $55,808 per day, for a total penalty not to exceed $446,456. Some violations can incur EPA civil penalties of up to $117,468 per day. 

“These facilities are saving money by noncompliance, and TCEQ often fails to charge them a penalty that’s equal to or greater than the economic benefit,” Clark-Leach said. “Unless you blow up and hurt people, you’re not going to be charged the statutory maximum.”

TCEQ shares jurisdiction with the Railroad Commission over upstream oil and gas operations around production sites and storage facilities. The RRC “has jurisdiction over flaring operations with respect to prevention of waste of natural resources,” while TCEQ “has jurisdiction over air quality issues related to flaring … and handles all complaints regarding air quality and air pollution,” according to the RRC’s website. A recent Associated Press investigation found that TCEQ investigators rarely find companies at fault for exceeding their permitted emissions. “Of 5,362 reported ‘excess emissions events’ statewide last year, TCEQ … asked for corrective action in only 19 cases,” according to the report.

Critics say the TCEQ’s abdication of enforcement responsibility is especially grave in the Permian Basin, where activists and scientists like the team at Carbon Mapper have documented an epidemic of illegal flaring and leaky storage and pipeline infrastructure, which they claim results in unreported methane emissions that may be more than double the EPA’s estimates for the region. But TCEQ says its monitoring has not produced evidence of widespread leaks. “In general, problems identified during short-term investigations were sporadic and were almost exclusively related to odor issues,” the agency’s website claims. “Long-term air monitoring has not shown any chemical at levels of health concern.”

As a greenhouse gas, methane is considered to be as much as 84 times more potent than carbon dioxide, but TCEQ does not take climate change into account when determining “levels of health concern.”

“This policy of official ignorance comes from the top,” wrote former TCEQ inspector Sheila Serna in a 2022 essay for the Texas Observer. “Essentially, we were told to sweep real problems under the rug and mislead the public about the type and quality of work TCEQ is supposed to do.”

“They don’t go looking for anything,” former TCEQ official Tim Doty told the Associated Press. “Even though they have 20 infrared cameras, they don’t actively take them out in the field.” Doty, whose last post was senior manager for TCEQ’s mobile air quality program, said he retired in frustration in 2018 because of the agency’s lack of interest in monitoring pollution from the oil and gas industry.“You can’t really openly talk about climate change within that agency,” Doty said. 

When TCEQ does find violations, it has consistently shown a preference for giving companies the opportunity to avoid enforcement by claiming the “affirmative defense” — basically, self-reporting an unplanned emission event as “unavoidable” and complying with investigators. “Although meant to be rigorous and narrowly tailored,” the Sunset staff noted in their report, “TCEQ investigators have determined regulated entities met the affirmative defense criteria in over 85 percent of unauthorized emissions events in each of the last five years.” 

Critics say that the affirmative defense serves as little more than a rubber stamp to excuse unlawful pollution. “Industry knows they won’t be punished, and so they don’t bother to invest in things that could prevent accidents,” Clark-Leach said. “But the affirmative defense isn’t just discouraging polluters from making improvements, it creates confidence that violations won’t be enforced, and that’s really the point of the program.” In their report, the Sunset saff put it more succinctly: “TCEQ’s efforts do not effectively discourage violations.”

When the Texas House Environmental Regulatory Committee met  on March 23 to discuss the TCEQ reauthorization bill, HB 1505, multiple environmental advocates urged the legislators to eliminate the affirmative defense altogether. 

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As TCEQ interim Executive Director Erin Chancellor testified in March’s committee hearing, the agency is required to approve certain permits so long as the paperwork is filed correctly, without public input opportunities or subsequent investigation. “If there’s certain rules and boxes that they check off and they meet all the requirements, then you have no other choice but to grant,” said Rep. Terry Meza, a Democrat from Irving. “Makes me wonder if there’s ever a situation where you wish there was another checkbox?” 

Chancellor declined to offer any suggestions. “Some statutes are shall-issue,” Chancellor said. “We take our cues from the Legislature.” 

While TCEQ has earned a reputation as a rubber stamp for companies seeking permits to pollute, it has earned the opposite reputation when it comes to requests to contest those permits. In order to challenge a permit, a person has to request a “contested case hearing” within 30 days after a permit is approved. But TCEQ requires the challenger to meet what critics say are arbitrary and exclusionary “affected person” standards, tied to residency within a small radius of a proposed project. TCEQ applies an informal one-mile residency requirement, which is not codified in statute. 

People requesting contested case hearings who don’t meet the residency requirement are often denied affected person status. That group includes people who might live a quarter-mile too far from a proposed facility, but also recreational water and public land users, anglers and commercial fishermen, and anyone else who can make a reasonable case that their quality of life or livelihood is threatened. 

“It sounds like a procedural issue but it’s a fundamental roadblock,” said Erin Gaines, an Austin-based attorney for Earthjustice. “You can’t even get at the substantive Clean Air and Clean Water Act issues if you can’t challenge a permit.” Contested case hearings are also a required early step in nearly every lawsuit to challenge a permit authorizing construction in Texas, so when TCEQ denies someone a hearing based on affected person status, they may also be impeding future litigation. 

According to Gaines, Texans are often denied affected person status in cases where they would be granted status to challenge an EPA permit, raising still more questions about TCEQ’s alleged dereliction of delegated authority. “If you would meet those same standards to be in federal court, then you should be able to do it at state court to get to the merits,” Gaines said. “You should not have to do this dance around.” 

There is still time for amendments to HB 1505, and environmental advocates on hand to testify at the recent hearing urged the committee to widen TCEQ’s scope of who qualifies as an affected person, along with other unaddressed priorities. 

“I know we’re at the bottom of the totem pole, and it’s not too much you can do when you don’t have a lot of money in this country. If it could just touch your mind and your heart,” Delores McGruder told the committee members, “to go significantly further and make this a bill for all, so we all can live in Texas.”

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