The 82nd Session may be remembered for the drama of its final days–and the absence of a clear ending given the special session that Governor Perry called the following day. But the regular session did, in fact, come to an end on May 30th, and the governor’s veto period will end on Sunday, June 19th.

In the last week of the 82nd Session, ACT was fighting the Bonnen amendment to SB 875 and working to make HB 3328 (the fracking disclosure bill) as strong as possible. We also continued our work on the TCEQ Sunset bill (HB 2694). By standing up for stronger environmental protection and regulation in Texas, citizens influenced the final version of each of these bills and had a significant impact on the legislative process

The great news of the final week was that the Bonnen amendment was stripped from SB 875 in conference committee. This was a significant victory for all Texans who believe we have the right to protect our property and our health from harmful neighbors–in this case, those who cause harm by their permitted activities (also known as polluters). Once the reach of the Bonnen amendment began to be understood, the bill’s author Sen. Troy Fraser stood on the Senate floor and promised to strip the amendment. He even requested that Sen. Kirk Watson (not know as Sen. Fraser’s top ally on environmental issues) serve on the conference committee.

The final week also brought changes to HB 3328 that ACT opposed, in particular, the change to the implementation timeline. The Sierra Club Lone Star Chapter has an excellent recap of this bill in its May 31 State Capitol E-Report. As the Sierra Club says, “While HB 3328 is not what the Sierra Club would consider “model” legislation, it is a significant step forward.” The national debate on fracking fluid disclosure is just beginning; what we did and did not achieve in the Texas Legislature will set the stage for future bills. ACT strongly urges all Texans concerned about the health effects of fracking to stay involved in the issue, to educate their neighbors and fellow Texans who are just learning about fracking, and to continue advocating for regulations, enforcement, and the public good.

ACT will continue to review how environmental issues were handled by the 82nd Legislature. Once the governor’s veto period is over, we will publish updates on the following issues: TCEQ Sunset, energy efficiency and renewable energy, water and land, electronic waste and recycling, and gas drilling.

In the last days of the 82nd Legislative Session, industry has finally shown how far they will go to protect their power to pollute at will. Tuesday night, Rep. Dennis Bonnen (HB 25, Angleton), offered an amendment to SB 875 that would provide industry an affirmative defense against civil suits. This amendment would severely restrict Texans’ ability to protect their property by giving industry immunity from nuisance and trespass action on nearly every type of regulated activity.

Wednesday afternoon, Rep. Craig Eiland (HD 23, Galveston) led an hour-long debate on the Bonnen amendment. When the House voted on an amendment to remove the Bonnen amendment from SB 875, the vote was 82-63 to take it off the bill. But the motion failed because, as an amendment on 3rd reading, a 2/3rd majority was required for passage. In other words, even though a majority of representatives opposed the Bonnen amendment once they understood what it did, the amendment remains on the bill. And the bill passed on 3rd reading with the Bonnen amendment on it, even though the majority of representatives had voted to take the amendment off just moments earlier.

Now, only the Texas Senate can stop this assault on Texas property owners’ ability to protect their property. This may sound familiar to those who have followed the TCEQ Sunset legislation and industry’s attempt to weaken the public’s ability to contest a permit.

The Senate should not concur with SB 875 as it comes back from the House. The Bonnen amendment goes too far in giving industry a free pass to pollute without fear of consequences and restricts our ability to defend our property. Texans believe in private property rights–and they will rightly object to laws passed to restrict these rights. Call your state senator today and tell her or him that Texans do not want polluting industry to have a free pass to pollute in any of our backyards, pastures or communities. The Bonnen amendment needs to come off SB 875.

If you’re not sure who represents you, you can find out here. Here’s a list of the senators’ Capitol phone numbers:

Sen. Brian Birdwell (SD 22, Granbury)  512-463-0122

Sen. John Carona (SD 16, Dallas) 512-463-0116

Sen. Wendy Davis (SD 10, Fort Worth) 512-463-0110

Sen. Robert Deuell (SD 2, Greenville) 512-463-0102

Sen. Robert Duncan (SD 28, Lubbock) 512-463-0128

Sen. Rodney Ellis (SD 13, Houston) 512-463-0113

Sen. Kevin Eltife (SD 1, Tyler) 512-463-0101

Sen. Craig Estes (SD 30, Wichita Falls) 512-463-0130

Sen. Troy Fraser (SD 24, Horshoe Bay) 512-463-0124

Sen. Mario Gallegos (SD 6, Houston) 512-463-0106

Sen. Chris Harris (SD 9, Arlington) 512-463-0109

Sen. Glen Hegar (SD 18, Katy) 512-463-0118

Sen. “Chuy” Hinojosa (SD 20, McAllen) 512-463-0120

Sen. Joan Huffman (SD 17, Southside Place) 512-463-0117

Sen. Mike Jackson (SD 11, La Porte) 512-463-0111

Sen. Eddie Lucio Jr (SD 27, Brownsville) 512-463-0127

Sen. Jane Nelson (SD 12, Flower Mound) 512-463-0112

Sen. Robert Nichols (SD 3, Jacksonville) 512-463-0103

Sen. Steve Ogden (SD 5, Bryan) 512-463-0105

Sen. Dan Patrick (SD 7, Houston) 512-463-0107

Sen. José Rodriguez (SD 29, El Paso) 512-463-0129

Sen. Kyl Seliger (SD 31, Amarillo) 512-463-0131

Sen. Florence Shapiro (SD 8, Plano) 512-463-0108

Sen. Carlos Uresti (SD 19, San Antonio) 512-463-0119

Sen. Leticia Van De Putte (SD 26, San Antonio) 512-463-0126

Sen. Kirk Watson (SD 14, Austin) 512-463-0114

Sen. Jeff Wentworth (SD 25, San Antonio) 512-463-0125

Sen. Royce West (SD 23, Dallas) 512-463-0123

Sen. John Whitmire (SD 15, Houston) 512-463-0115

Sen Tommy Williams (SD 4, The Woodlands) 512-463-0104

Sen. Judith Zaffirini (SD 21, Laredo) 512-463-0121

This week, both chambers of the 82nd Legislature will consider legislation that will affect the future of environmental protection and regulation in our state. Frankly, most of this legislation would further limit TCEQ’s ability to keep our air, water and land safe–particularly by limiting citizens’ right to protect their health and their property by contesting TCEQ permits. When you take a look at all the bills and amendments out there that would further weaken environmental regulation and enforcement in Texas, you can’t help but wonder if industry’s feeling a little like the kid in the candy shop, not knowing just which bill to like best.

The centerpiece of this legislation remains HB 2694–the TCEQ Sunset bill. This bill establishes how TCEQ will operate over the next twelve years, adopting changes to the agency to make it more effective and efficient. On Tuesday May 3rd, the Senate Committee on Natural Resources will consider HB 2694. The original version of HB 2694 included much-needed improvements to TCEQ’s enforcement policy and practices. ACT supported HB 2694 as introduced.

However, the Alliance for a Clean Texas does not support HB 2694 in its current version. The Texas House voted to weaken TCEQ by adopting amendments that limit the agency’s ability to protect our health and our environment. These amendments limit citizens’ right to contest permits for air emissions, wastewater discharges, hazardous waste disposal and other pollution. These changes, which were not recommended by the Sunset staff or the Sunset Advisory Commission, would favor industry over property owners and local governmental entities.

The good news is that the Texas Senate can fix the problem sent to them by the House. The Senate can vote to strip off the House amendments and vote for a “clean” TCEQ Sunset bill. By voting for a clean bill, the Texas Senate can restore Texans’ right to legal protection of their property.

If you want to maintain your rights to protest a coal-fired power plant, a sewage treatment plant, a hazardous waste landfill or other pollution sources that could threaten you community or family, now is the time to contact your state senator. Tell him or her to support a “clean” version of HB 2694 without the House amendments. If you are not sure who represents you in the Texas Senate, you can find out here. A directory of Senate phone numbers is available here; call the Capitol office.

Meanwhile, the attack on environmental regulation continues in the Texas House in the form of stand alone bills. More on that in ACT’s next post.

Last Tuesday, when the Texas House of Representatives took up the TCEQ Sunset bill, our state representatives had the opportunity to show us where they stand. This legislation, which will “continue” TCEQ for the next twelve years, has been in development for nearly two years. Thousands of people participated in the TCEQ review and recommendation process with the goal of identifying ways to make the agency more effective and efficient. The floor debate was our representatives’ chance to make TCEQ a more effective protector of our health and our environment.

Instead, they decided to make the bill considerably worse.

As Ken Kramer, executive director of the Sierra Club Lone Star Chapter, put it, the House of Representatives took a balanced piece of legislation “that reflected the recommendations of the Texas Sunset Commission after a thorough and careful review of the state’s major environmental regulatory agency” and “have given polluters the best present they could have asked for to celebrate Earth Day.”

Without question, one amendment adopted by the House would have a profound impact on Texans’ ability to protect their health and their property. Rep. Warren Chisum offered an amendment to change the contested case hearing process. The proposed changes will mean that thousands of Texas property owners will now find participating in the permitting process even more burdensome and expensive.

Rep. Rafael Anchia, a member of the Sunset Advisory Commission, asked his colleagues to oppose the amendment, explaining that it was completely outside the realm of issues discussed and recommended by the commission. He not only opposed the amendment during the floor debate on Tuesday—Rep. Anchia took the step of offering a counter amendment the following day, on third reading, to strip the contested case hearing amendment from the bill. The video above is from that debate. It explains the changes this amendment would put in place clearly.

ACT remains committed to making TCEQ a stronger and more effective environmental protector and regulator. Our partner and affiliate organizations are working to improve the TCEQ Sunset bill in the Senate. Texans depend on TCEQ to keep the air they breathe clean, the water they drink safe and the land they love preserved for generations to come.

We will fight these efforts to weaken TCEQ. Call your State Senator in Austin now and ask her or him to prevent any debate on the TCEQ Sunset Bill until the crippling House amendments are removed. The people of Texas want a clean bill that does not weaken our state’s environmental regulatory agency.

If you’re not sure who represents you, you can find out here. A list of Senate phone numbers is available here.

Representative Warren Chisum has filed several amendments that would roll back reforms put in place during the last TCEQ (then the TNRCC) Sunset review in 2001.  One of these amendments is based on a bill he introduced that would severely limit citizens’ ability to oppose permits through contested case hearings. The bill (HB 3037) was heard in House Environmental Regulation earlier this month.   People  from around the state stayed in the Capitol until 1:30 a.m. to testify in opposition; HB 3037 would limit their ability to protect their property, their families and their communities from harm. As folks who’d participated in contested case hearings to keep their water clean and to limit the toxins their children and livestock breathe, they know how important contested case hearings are to all Texans. Now this bill has become an amendment that the Texas House could pass as part of the TCEQ Sunset bill.

Bob Thompson, a rancher with property in Jack County, stayed late to let the committee know how important the contested case hearing is. At the end of his testimony, he made this statement:

I see this bill as an assault on private property rights. I think most ranchers I know in the part of the country where we ranch would view the situation very similarly. If you emasculate private property rights here in the state of Texas, I think you’re going to be having people coming down here with pitchforks.

Over and over, at town halls and formal public hearings, we hear ranchers introduce themselves as “the original environmentalists.” We know how deeply they love the land and how hard they fight to protect it. We think Bob Thompson speaks for all Texans who believe it’s their duty to protect the environment–today and for generations to come. Here’s a clip of his testimony so you can see for yourself.

This is one of those fights we can’t fight alone. Please call your state representative by 10:00 am on Tuesday morning to tell her or him to VOTE NO on the Chisum amendments to HB 2694.  You stand with Texans all over the state who believe they have the right to protect their health and their property through the contested case hearing process. If you’re not sure who represents you, you can find out online here.  A directory of all the House members is available online and includes all Capitol office phone numbers.

And in what would seem to be quite a coincidence, Senate Natural Resources will hear SB 657–the Senate version of the TCEQ Sunset bill jointly authored by Senators Huffman and Hegar–tomorrow morning as well. Stayed tuned

ACT supports HB 3328, Chairman Keffer’s hydraulic fracturing fluid disclosure bill, and calls on House Energy Resources to pass it out of committee.  This bill would take a much-needed first step in making information about the chemicals used in fracking fluid public. Currently, the gas drilling industry is not required to register the chemicals used in fracking operations.  This bill would change that.  Interestingly,  Halliburton was nearly alone last week in its opposition at the committee meeting.  A bipartisan group of representatives has signed on as authors and co-authors this bill including Reps. Crownover (Vice Chair of Energy Resources), Burnam, Parker, Strama and Veasey. ACT agrees that increasing  transparency and protecting our health and our groundwater are in everyone’s best interest–throughout the state.  If fracking fluid is of concern to you, please thank these authors and co-authors and contact the members of House Energy Resources to let them know that you support HB 3328.

Bills of Concern

CSSB 875 Fraser
Relating to compliance with state and federal environmental permits as a defense to certain actions for nuisance or trespass.
CSSB 875 could set a dangerous precedent by providing an “affirmative defense” for industry in nuisance and trespass actions. The affirmative defense operates as a “shield” against prosecution. While the committee substitute has been rewritten to focus on greenhouse gases, the basic idea of the bill remains the same: a company could claim that “substantial compliance” with the permit, combined with a lack of enforcement action by the TCEQ (enforcement discretion), could serve as a defense against nuisance and trespass actions taken against it.
ACT opposes CSSB 875. The bill is eligible to be brought up for debate beginning on Wednesday, March 30th. ACT urges its partner and affiliate organizations, as well as Texas citizens, to contact the Texas Senate and inform them of their opposition to any motion to suspend the rules and bring up CSSB 875 for debate on the Senate floor.

ACT supports SB 449 (Watson | Estes) in Senate Finance, SB 1125 (Carona) in Senate Business & Commerce, HB 821 (Farrar) and HB 1966 (Chisum) in House Environmental Regulation. More about each of these bills is available here.

ACT opposes SB 875 (Fraser) because it could handicap local enforcement and citizens’ efforts to clean up air pollution. SB 875 would make changes to provide an affirmative defense for administrative, civil, or criminal nuisance and trespass actions as long as a defendant is in “general compliance” with a TCEQ rule or permit. This bill would affect people who are dealing with, for example, large upsets such as routinely occur at refineries and chemical plants, damage from air pollution from coal-fired power plants, cement plants and rock crushers. The proposed changes would provide the permit holder a relatively surefire way to defend themselves from the types of suits that often lead to significant reductions in harmful emissions.

Please visit our 2011 Lobby Day page in the Events menu to see the schedule of events.  If you’re passionate about protecting our water and our air, making the energy we use cleaner (and being smarter about the ways we use it), preserving our land for future generations, recycling all types of waste or simply making Texas a healthier and cleaner place to live, we hope you’ll join us at the Capitol on March 15th.