Home-Rule City in a Business-Friendly State: Texas Supreme Court Strikes Down Houston’s Air Quality Enforcement

By |2018-11-02T08:26:12+00:00May 26th, 2016|Tags: , |

Last month, the State of Texas was forced to choose between its business-friendly values and a controversial example of its independent home-rule history.

The business community won.

In an 8-1 ruling on April 29, 2016, the Texas Supreme Court struck down the City of Houston’s right to enforce its own air quality rules through a nuisance ordinance. The state’s central environmental regulatory agency, Texas Commission on Environmental Quality (TCEQ), already administers the Texas Clean Air Act, and opponents (including ExxonMobil and Dow Chemical) said that the city’s ordinance interfered with the state’s enforcement.

Since 2007, Houston has required industrial emitters to register with the city and pay violation fees. It also sought criminal charges against violators of state air emissions levels.

This was all enacted under the auspices of the city’s home-rule charter, which allows Houston to pass its own laws and govern as its leaders see fit, as long as they don’t violate state and federal laws. The court determined that Houston was doing just that by overstepping its bounds in air quality enforcement.

Four Reactions to the Strike Down

  1. The Texas Supreme Court: Writing the opinion for the court’s majority, Justice Paul Green stated that the city’s rules preempted the state’s and were “inconsistent with the statutory enforcement requirements.” The court also argued that “the ordinance’s registration requirement makes unlawful what the [Texas Clean Air] act approves.” The court did approve of the city maintaining an ordinance incorporating TCEQ’s air rules (though only TCEQ can enforce them).
  2. The Business Community: The group that brought the lawsuit, the Business Coalition for Clean Air Appeal Group, is understandably happy about the decision, which they say “sends the message that clear, evenhanded statewide regulation is something the Texas Supreme Court takes seriously.”
  3. Environmental groups: Environmentalists are disappointed with what Adrian Shelley of Air Alliance Houston sees as the “lax regulatory climate” established by the TCEQ. Shelley believes that “there is likely to be more pollution as a result of [the ruling], which will cause public health to suffer.”
  4. The City of Houston: Though the city lost its right to enforce its own air quality standards, its outlook is optimistic. TCEQ’s allegedly inadequate enforcement of existing air laws is the reason the city developed its own stringent rules back in 2007 and attorney Donna Edmundson explained that “the city will employ other legal mechanisms… to monitor and take action against those who pollute the city’s air in violation of state and federal air pollution control laws and regulations.” The city has not yet issued a decision regarding filing an appeal.

The Big Picture

This decision isn’t just about Houston. The Texas Observer called it “the latest development in the fight over local versus state control on environmental regulations.”

Though this decision favors the industry, when given the vote, Texans don’t always choose the business-friendly route. Most notably, a 2014 referendum in the City of Denton banned fracking within its limits, essentially illegalizing a practice that is legal in Texas and regulated by TCEQ.

Tensions run high on both sides of the argument. Governor Greg Abbott has stated that “unchecked overregulation by cities will turn the Texas miracle into the California nightmare,” but ardent small-government proponents like Councilman Darren Hodges of Fort Stockton claims it’s, “hypocritical that the state wants the federal government to give the states more power, yet at the state level, they want to take power away from cities and counties.”

Can a state be business-friendly and still give its citizens the power to create the communities they want on a local level? Maybe or maybe not – depending on if citizens want communities whose ideals are at odds with business values. As advocates in both camps work to sway public favor in their direction, this issue is an important one that could change the culture of Texas as we know it.

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About the author

Elizabeth High
Elizabeth High
Liz is as an environmental specialist and Geographic Information System (GIS) analyst in the San Antonio office. She has over six years of experience in environmental compliance consulting and permitting with an emphasis on GIS and spatial analysis.

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