The bottomline: we didn’t make the kind of progress on clean energy and clean air issues we had hoped to make. ACT bills faced two hurdles that could not be overcome this session. The first was strong industry opposition that both slowed the process (especially getting bills voted out of committee) and undermined the bipartisan support these measures had going into the session. The second was a legislative session that was behind from the beginning and ultimately derailed by a partisan stalemate in the House.

It’s important to note that bills did indeed pass that will continue to move Texas toward a cleaner, healthier future. Over the coming weeks, we’ll take a look at each of the 2009 issue areas in-depth and publish an assessment of how we fared on each. By the end of the month, ACT plans to publish a 2009 Legislative wrap-up.

Today, it’s worth taking a look at where ACT’s high priority bills ended up. First, the good news. Two of the ACT’s nine high priority bills are headed to the governor’s desk. HB 821 (TV producer takeback recycling) and SB 184 (greenhouse gas registry study) passed to engrossment in both chambers. ACT would like to thank everyone who worked on these bills – both this year and in years past laying the foundation for their success.

As for the other seven bills: frankly, last Friday, three more high priority bills seemed poised to make it: SB 546, SB 545 (as an amendment) and HB 300 (TXDoT sunset). However, SB 546 failed in the conference process, taking SB 545 with it. HB 300 died when the Senate chair of the Transportation Committee threatened to filiabuster it. Obviously, members of the ACT issue teams did everything possible to keep these bills alive – particularly SB 545. But Sine Die came without a solar bill headed for Gov Perry’s desk, without the increase in energy efficiency goal recommended by the PUC’s Itron Study, and without needed improvements to make TXDoT a more environmentally-sound agency.

SB 16 became ensnared in a tremendous amount of industry push back, particularly against future air permits requiring ozone impact analysis and cumulative impact studies. After a considerable delay in voting the bill out of House Environmental Regulation, the House Calendar committee finally placed SB 16 on the House Major State calendar on May 23. But by that point, the House had ground to a halt and SB 16 failed to be passed by the midnight deadline on May 26. Eventually, parts of SB 16 were amended onto other legislation, but between the stripping of non-germane amendments and the abrupt adjourning of the Senate last night, most of them died as well.

HB 280 was made the companion for SB 546 by the House on May 14th, so it essentially shared the fate of SB 546. And HB 1553 – the climate adaptation plan bill – was voted out of House Envirnonmental Regulation but was not placed on the House calendar.

On the renewable energy bills front, SB 545 has been sent to the House Calendars committee. SB 541 has beed reported favorably by the House Committee on State Affairs; the committee report has not yet been filed. ACT has two urgent recommendations on behalf of these bills:

1. ACT urges the House Calendars Committee to place SB 545 on the calendar for Major State Affairs at its next meeting.
2. ACT urges the House Committee on State Affairs to take all necessary steps to have the committee report on SB 541 in the House Calendars Committee before its next meeting.

Two more ACT high priority bills are poised to move to the next step. HB 821 (producer TV takeback recycling) was heard in Senate Business and Commerce yesterday afternoon and passed out on a 9-0 vote.  It is now eligible for the Senate Intent calendar; ACT will continue to follow this bill and let supporters know if and when calls to the Lieutenant Governor’s office might be needed.

Finally, SB 184, Senator Watson “no regrets” greenhouse gas bill was reported favorably from House Environmental Regulation yesterday. The next step for this bill is for the committee report to be sent to the House Calendars Committee.

The next step for these three bills is to be placed on the House calendar. ACT urges the members of the House Calendars committee to place SB 545, SB 16 and SB 541 on the calendar before Sunday (the deadline for Senate bills to be heard in the House). The people of Texas expect their lawmakers to take bold action on energy this session. The Texas Legislature could make the 81st Session an historic one for the development of the next great Texas energy industries. While many traditional energy businesses and their allies oppose these bills, the people of Texas know that for Texas to be as strong in the 21st century as it has been in the 20th, it needs to stay ahead of the curve on all energy development.

Another ACT high priority bill reaches the next step in the legislative process tomorrow morning. HB 821, the producer TV takeback bill, will be heard in the Senate Committee of Business & Commerce tomorrow morning. An unusual committee referral (most recycling and landfill bills are referred to Senate Natural Resouces), ACT hopes that the members of Senate B & C can see the value of this timely bill that will help keep more lead, mercury and other hazardous materials out of our landfills.

Houston Chronicle, May 5, 2009

Yesterday, The Houston Chronicle published “The Short Arm of the Law.” Normally, the ACT website does not comment on the articles listed in the left column of the homepage. However, this editorial describes the state of clean air enforcement and protection in Texas as well as anything we have read during the 81st Session. We strongly recommend that you read the it in its entirety.

The editorial board commends Environment Texas and the Lone Star Chapter of the Sierra Club for their successful suit against Shell Oil for over 1,000 “upset” emissions at its Deer Park refinery. A landmark settlement of $6 million was announced in Houston on April 23rd. (Environment Texas and the Sierra Club plan to spend this money cleaning Houston’s air.)

Where, you might wonder, was the state’s official enviro-cop unit, the Texas Commission on Environmental Quality? It turns out that the TCEQ knew good and well about Shell’s illegal releases. (Environment Texas director Luke Metzger says that the environmental groups found out about them by combing the agency’s own database.) But the TCEQ leveled only light fines, and it didn’t force Shell to mend its ways. [emphasis added]

TCEQ knew. They knew about the upset emissions because they were tracking them. They knew that these emissions were in violation, so they fined Shell Oil. But the fines were too small to make a difference to such a profitable company and the TCEQ did not require Shell to fix the problem. (The settlement requires Shell to reduce upset emissions by 80% over the next three years.

Every Wednesday for the past two months, the House Committee on Environmental Regulation has held public hearings. Every Wednesday, at least one bill is heard that would make the TCEQ do a better job of protecting Texans’ health. Bills have been heard that would strengthen the permitting process, improve air monitoring technology, or require the agency to comply with federal law. And every Wednesday, industry representatives oppose these bills, saying they would impose an unfair burden on business.

Thanks to The Houston Chronicle for drawing attention to this suit, this settlement and the agency that isn’t doing what it should to protect the health of all Texans. Now it’s up to the 81st Legislature to make the TCEQ a stronger, more effective agency that will work with us to keep our air clean.

BE IT RESOLVED, That the Texas Medical Association (TMA) urges our state, local, and federal government leaders and legislators to act promptly and aggressively to reduce the health burden of pollution from vehicular, diesel, air toxics, and NAAQS criteria pollutant emissions.

TMA is to be applauded for adding its authoritative voice to the growing medical consensus that legislative action is necessary to protect the health of Texas citizens.

Right now, Texas medical organizations are joining together and calling for action. Last week, Health Professionals for Clean Air (a member of The Alliance for a Clean Texas) released its Consensus Statement on Reducing the Health Burden of Air Pollution in Texas. The following medical specialty societies have already endorsed the consensus statement:

• Texas Association of Obstetricians and Gynecologists
• Texas Chapter of the American College of Cardiology
• Texas Chapter of the American College of Physicians
• Texas College of Emergency Physicians
• Texas College of Occupational & Environmental Medicine
• Texas Pediatric Society

Additionally, five other leading societies are currently reviewing the consensus statement (including the Texas Allergy, Asthma and Immunology Society).

With four weeks left in the session, the Texas medical community has given the 81st Legislature a prescription: pass legislation that will reduce air toxics, vehicular emissions, mercury emissions, and improve overall air pollution “by basing air quality standards principally on human health.” This week is crucial for clean air legislation: SB 16 – Senator Averitt’s omnibus clean air bill – is still in House Environmental Regulation. (There’s a committee meeting this afternoon upon adjourment.) Additionally, the school bus idling bill (HB 4208), the school siting bill (HB 1839), the enhanced air monitor technology bill (HB 4581) and the comprehensive emissions database bill (HB 3582) have all been reported out of committee and should be on the House calendar.

Today, members of the ACT Clean Air team will testify on SB 16, HB 721, HB 3590, HB 4081, HB 4083, HB 4085 and SB 1472. (There are also mercury thermostat bills recycling on the agenda that are supported by ACT organizations.)

Representative Donna Howard’s HB 721 addresses one of the more difficult challenges in the fight for clean air: keeping affected counties (areas that are designated as having poor air quality under the Texas Emissions Reduction Plan but have not yet reached non-attainment status) from going into non-attainment. Translation: cities such as Waco, Austin and San Antonio are not in the same category for air quality monitoring and measures as are Dallas, Fort Worth and Houston, but they’re on what amounts to a watch list. All three cities and surrounding counties are fighting to keep from going into non-attainment. However, the permitting process in affected areas currently does not require assessing the cumulative impact of proposed power plants on the area’s ozone level.

SB 16 has measures that will require cumulative impact analysis for any new power plants proposed to be built in non-attainment areas – an absolutely necessary tool for these areas which are at risk of losing federal highway funds as the result of non-compliance with federal clean air standards. However, what’s missing in the Texas clean air picture are better permitting rules that will help other cities keep their air quality from deteriorating.

There’s a real irony at work here: a city must have a severe air quality problem before it qualifies for the type of measures that could have kept its air quality from deteriorating in the first place. And at that point, the things it must do have become far more costly and difficult than they would have been if the factors that were contributing to the ozone problem had been addressed before reaching this critical point.

ACT strongly supports HB 721 because it would require power plant permits in affected areas to include air quality impact analysis. Additionally, HB 721 would allow public review and comment on ozone air quality impacts analysis.

(Isn’t an ounce of prevention supposed to be worth a pound of cure?)

There was some good news on the clean air front last week: several bills that will help clean Texans’ air passed out of committee and go to the House floor. Three are worth noting. HB 4581 by Representative Hochberg has the distinction of being the first bill to be passed out of committee the same week it was heard. HB 4581 would require TCEQ to use “advanced technology” to monitor emissions. ACT strongly supports this bill.

Additionally, two bills out of the House Committee on Public Education will protect the health of Texas school children. Representative Patrick’s HB 4208 is the school bus idling bill. (You may remember that an identical bill was sent to Governor Perry in 2007. You may also remember that the governor vetoed this bill.) HB 4208 is such a common sense bill that it’s almost impossible to believe that it actually requires legislation: school districts would implement no-idling policies that will both clean the air around schools and save districts money.

The other bill – HB 1839 – is also by Representative Donna Howard (who, along with Representatives Burnam and Farrar, is quickly becoming one of the 2009 clean air champions in the House). This bill would require school districts to develop school siting plans that include assessing environmental factors. The Texas Association of School Boards has worked on this bill, making sure it is not burdensome for districts to implement.

It’s likely that Representative Cook, chair of Environmental Regulation, will have the committee vote of some of the 93 bills still pending in committee. Every ACT update now ends with the same warning: time is running short in the 81st Session. Check back on the ACT website (or follow ACT on Twitter) to stay up to date on the progress of clean air legislation.

One good example last week was in the House Committee on Environmental Regulation: three bills that address the wet cement kilns in Midlothian (in the Dallas-Fort Worth area) were heard together (HB 2174, HB 2355, and HB 3424). These kilns are major contributors to nitrogen oxide emissions in the Dallas-Fort Worth non-attainment area; at issue are locally-enacted laws for municipalities to adopt “green cement” purchasing plans as a NOx reduction strategy (and part of the regional State Implementation Plan with the EPA). The committee spent three hours on these three bills. Three hours on how the Dallas-Fort Worth area is working to improve air quality. And while not every question could be called friendly, the committee heard the testimony of two Dallas city council members who said their duty as “locally elected public officials” is to protect the well-being of all their citizens – especially their health.

One thing to note: the vote to pass this bill out of committee was unanimous. Thank you, Chairman Cook, for bringing this bill to a vote this week and to Rep Burnam for introducing this legislation in the House.

HB 1553 is exceptionally pragmatic in its approach to climate change. Rather than focusing on causes or solutions, it establishes a plan of action to respond to changes should they occur. Climate adaptation planning can be seen as a form of contingency planning. The state agencies will report to the Legislature biannually on any climate-related impacts to their programs they foresee in the coming two years. The bill sets the reporting date as September of even-numbered years, to provide the Legislature with information to allocate funds (if needed) in the following session. It’s simple. It’s smart. It’s a way for Texas to move forward.

Climate change legislation also came before the Senate this week. SB 184, Senator Watson’s “no regrets” on greenhouse emissions bill, was passed unanimously on the Senate floor, 31-0, and now moves to the House. Again, there was a unanimous vote in favor of climate change legislation – this time, on the Senate floor. Rep. Chisum introduced his companion bill, HB 4346, to the House Committee on Environmental Regulation Wednesday evening.

The disappointing vote of the week came in Senate Natural Resources, where Sen Ellis’ SB 988 failed to get out of committee. Frankly, this vote was surprising, given that SB 184 passed out of this committee unanimously. Interestingly, SB 988 and HB 1553 are companion legislation. Perhaps the Senate will have the opportunity to reconsider SB 988 if it comes to the Senate in the form of HB 1553.