Disdain for environmental regulations has helped make Houston the new smog capital of America. Even amid frequent warnings to children and the elderly to restrict outdoor activity, business leaders darkly forecast economic death whenever faced with a new green statute. Ordinary folks bristle at the notion of restrictions on the use of their cars.
However, the latest flap over an environmentally friendly program has a unique twist. The chief critic is not a captain of industry or a rugged individualist, but Jeri Yenne, the district attorney of Brazoria County.
Yenne believes that the Texas Department of Public Safety's use of remote-sensing technology to ferret out pollution-spewing vehicles smacks of Big Brother and undermines the bedrock freedoms upon which America was founded.
She is refusing to prosecute people who ignore a DPS notice to get their cars checked for excessive emissions.
"I am impressed at how important a clean environment is to us as a community and as a society," she said in a prepared statement. "Yet, I am not willing to suspend our constitutional rights for that laudable goal."
Her hard line has DPS officials, environmentalists and even a fellow prosecutor scratching their heads. They say the remote-sensing program is the most painless way to catch the dirty birds of Brazoria and six other counties surrounding Houston. Unlike Harris County, residents of those counties do not face mandatory emissions tests as part of their annual vehicle safety inspection. With remote sensing, only those people whose cars have been found out of compliance twice in nine months have to get an emissions test.
What makes the controversy all the more baffling, says Houston environmental attorney Jim Blackburn, is the fact that Yenne is a prosecutor whose role is to uphold Texas laws.
"I think the district attorney is playing politics and ought to be defending this system and let a good criminal lawyer overturn it if there is a problem," he says.
Remote sensing in the Houston, Dallas and El Paso metropolitan areas began in 1998, as part of a state plan to achieve compliance with federal clean-air statutes. The program was an alternative to a more sweeping plan that would have established inspection and maintenance stations across those smog-choked areas.
Harris County got saddled with the mandatory inspections. Brazoria, Galveston, Fort Bend, Liberty, Montgomery, Chambers and Waller counties dodged the bullet. However, since parts of those counties fell within the area designated as "non-attainment" by the Environmental Protection Agency, state officials adopted the remote-sensing program to gauge vehicles commuting into Houston.
"It's kind of a blessing in disguise for those outlying counties," says Ted Mora, assistant district attorney for Galveston County. "Those counties don't have to go through the annual inspection thing."
The alternative to remote sensing would be to stop vehicles and subject them to a roadside check, says Jimmy Guckian, the remote-sensing administrator for the DPS. In addition to the inconvenience to drivers, the on-the-spot inspections would fail to catch many of the heavily polluting vehicles, he says. Remote sensors can check scores of vehicles in the 20 or so minutes it would take for one roadside inspection.
"There's an old axiom out there that 10 percent of the cars create 50 percent of the pollution," he says. "And if we can get those cars identified and have them brought in for testing and repairs, then we've accomplished our main objective, which is to clean the air."
A DPS van rotates among 40 sites along the main corridors into Harris County, shooting a pollution-detecting beam at vehicles' exhaust plumes and simultaneously snapping photos of license plates. Owners of vehicles with high emissions of carbon monoxide or hydrocarbons receive a notice to get their cars tested and make repairs if necessary. They have 30 days to comply.
Beginning this past May, people who did not act on a DPS notice received a citation equivalent to a class C misdemeanor, or a speeding ticket. The penalty is a fine of up to $350.
"What we're asking [a vehicle owner] to do is go get a test. He has two choices: He can either go do that or he can throw it in the trash can. The citation comes when he makes that latter choice," says Eugene Summerford, a DPS lawyer.
In addition to incurring a fine, a person who fails to comply with the DPS notice could be denied vehicle registration by the Texas Department of Transportation.
Yenne blasts the remote-sensing program as "covert surveillance" and questions the reliability of the technology as a basis for prosecutions. She says the program compromises constitutional guarantees such as the presumption of innocence, the burden on the government to prove an accusation beyond a reasonable doubt. Yenne also complains that it infringes on protections against self-incrimination and the right to confront accusers.
"It's a very dangerous principle and precedent," she says. "If I can maintain surveillance records on people who have not committed crimes and base a criminal accusation on a beam from a machine this should cause all of us some concern. Some grave concern."
But Winifred J. Hamilton of the Galveston-Houston Association for Smog Prevention (GHASP) says constitutional rights can be interpreted in different ways.
"Do you have a right to force people behind you to breathe very toxic fumes?" she asks rhetorically.
As of early last week, the DPS had filed citations in Brazoria County against 12 people for breaches of the remote-sensing program. Yenne asked the court to postpone the hearings so she could study pertinent legal issues. She later announced that she would review each of the citations on a case-by-case basis and encourage the accused to get their vehicles tested. But, she said, she would not prosecute those who refused to comply.
For years Houston-area officials turned a blind eye to the declining state of the region's environment. Today there is little debate that Houston has a serious air pollution problem. Last year the city eclipsed perennial smog king Los Angeles for the number of violations of the federal ozone standard. Health problems associated with ozone, smog's chief component, include cardiovascular and respiratory diseases, asthma attacks and possibly permanent lung damage, says Ramon Alvarez, staff scientist for the Texas branch of the organization Environmental Defense.
"You can put a face on this. It's not just an abstract problem," he says. "It affects human health."
Vehicle emissions account for about one quarter of Houston's air pollution. Alvarez points out that one of the flaws in the DPS's remote-sensing program is that it measures carbon monoxide and hydrocarbons, but not nitrogen oxide, a principal ozone-forming compound.
Later this year the Texas Natural Resource Conservation Commission will submit a plan to the EPA outlining how Houston intends to bring ozone levels within federal guidelines by 2007. If the plan is not approved, the city and outlying areas could face the loss of federal transportation funds and heavy restrictions on new or expanding businesses. A preliminary version of the plan calls for steep cuts in industrial emissions, a ban on heavy construction during certain hours and lowered speed limits.
Alvarez says Brazoria County's refusal to enforce the remote-sensing program could hurt the Houston-area plan's chances of getting EPA approval. If officials are unwilling to comply with a program like remote sensing, that bodes poorly for the more stringent measures on the horizon, he adds.
"I look at it from a practical standpoint and from a cost-effectiveness and public-inconvenience standpoint, and to me [the remote-sensing program] seems like a reasonable approach. If Brazoria County is not happy with it, I think it falls on Brazoria County to come up with an alternative," Alvarez says.
Yenne is not alone in her contempt for the program. Concerns have been voiced by officials such as state Senator Mike Jackson of La Porte, state Representative Dennis Bonnen of Angleton and Fort Bend County District Attorney John Healey. But among district attorneys, only Yenne has refused to prosecute cases, says Guckian of the DPS.
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Mora, the Galveston County assistant district attorney, says his office will prosecute if necessary. But he and Justice of the Peace Mike Nelson have agreed to take a lenient approach by simply prompting violators to get their vehicles checked and brought into compliance.
"We're not out to make criminals out of just plain old law-abiding citizens. We're going to try to work with these people," Mora says. "We're not going to issue any warrants for people's arrests except as a last resort."
Mora finds Yenne's positions philosophically compelling, but he's unconvinced that remote sensing endangers basic rights. As a prosecutor, he points out, his responsibility is to enforce the law.
"I don't have a problem with the constitutionality of this system," he says. "We're duty-bound to uphold the law."