Who’s the toughest enforcer of clean-air laws in Texas? Oddly, the answer appears to be “nonprofit groups.”

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.

The House Committee on Environmental Regulation will hear important clean air bills today including  SB 16 – Senator Averitt’s omnibus clean air and energy efficiency bill.  Several address flaws in the TCEQ permitting process. (TCEQ was already in the news this week when Senators Shapleigh, Davis, Ellis and Watson held a press conference on “cleaning up the mess at TCEQ.“)

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.