Does Houston Have the Right to Enforce Clean Air Laws? The Texas Supreme Court Will Decide

The City of Houston has been defending its Clean Air Ordinance ever since it was enacted in 2007, with city lawyers arguing in court that Houston has the right to control and regulate its own air quality. Now the Texas Supreme Court is taking on the issue. The high court is slated to hear oral arguments about whether the ordinance is an overreach of city authority in the case BCCA Appeal Group v. City of Houston on Wednesday. 

The lousy air of the Bayou City isn't exactly news. Houston officials have been grappling with the city's air problem for years. In fact, the city has been classified as a "non-attainment" city for ozone pollution since the federal Clean Air Act rules went into place in 1975. (In 2008 the Environmental Protection Agency agreed to classify Houston as a "moderate non-attainment" city at then-Gov. Rick Perry's request, which is sort of like calling a spade a club.) In a 2003 case before the U.S. Fifth Circuit Court of Appeals, the Fifth noted that “Houston-Galveston has one of the most serious ozone problems in the country.” Houston is the fourth-largest city in the nation, and in 2014 the American Lung Association ranked Houston as the nation’s sixth most ozone-polluted city.

In short, we've had lousy air for a really long time.

However, former mayor Bill White campaigned on cleaning up Houston's air pollution during his first run for office and after he was elected to a second term, he started trying to do something about it, according to lawyer Ryan Hackney in the Vermont Journal of Environmental Law. For years, the city actually shared the regulation of air pollution with the state. That deal ended in 2005 after city officials became frustrated with the Texas Commission on Environmental Quality's failure to actually regulate that much, according to Hackney. So in 2005, as the city was steadily going greener and more energy-efficient under White's stewardship, Houston ended its contract with TCEQ. 

That break with the state agency was the start of a fight for the city's right to monitor and regulate its own air quality, Tracy Hester, an environmental law professor at the University of Houston, says. When White announced in early 2007 that Houston was going to use a nuisance ordinance to start bringing suit against industrial polluters outside of city limits, the response was rapid. By March 2007, Beaumont state Sen. Mike Jackson tried to get a law through the Lege prohibiting local governments from regulating pollution coming from outside their boundaries. 

At the same time, the city council looked at the existing ordinance on air pollution — the city had been using it to register and monitor polluting facilities since 1992 — and amended and broadened it to expand the city's powers to control facilities that regularly pollute the city's air. Ordinance no. 2007-208 was passed in February 2007.

“The ordinance was the city's attempt to step in when they felt the state wasn't doing enough to enforce environmental regulations,” Hester says.

Under the newly revised ordinance, Houston would regulate everything, from small businesses like auto repair shops and dry cleaners, to large facilities like the petrochemical refineries that dot Houston's landscape. The fines for violations range from $100 for a company with six employees or fewer to fines of more than $2,000 for a facility emitting more than 10,000 tons of airborne contaminants each year. This might sound reasonable enough, considering the legendary Houston smog, but local industry was fuming about the city taking over air pollution regulation from the second the local rules were enacted.

The Business Coalition for Clear Air, an offshoot of the Greater Houston Partnership, already existed, but plant and refinery owners in the area decided to create another offshoot to fight the regulations, the Business Coalition for Clean Air Appeals Group. The BCCA spokeswoman at the time said that the group had tried to work with the city to no avail and had been forced to file the suit, the Houston Chronicle reported at the time. In the lawsuit filed in 2008, the group claimed that the ordinance sets the city up to usurp the power of the TCEQ, power granted to the TCEQ through the EPA. (Yes, even the oil industry types behind the BCCA become reverent of the EPA's federal authority when it stands to benefit them.)

From then on, industry officials have been fighting against the ordinance, as it has bounced from court to court. In February 2013, the Texas Supreme Court looked at an aspect of the law and sided against the city. In August 2013, Houston's First District Court of Appeals reversed a lower court's ruling finding that nothing in the Texas Clean Air Act stops a city from coming up with concurrent laws to fight against air pollution. The court ruled that the Texas Clean Air Act  "expressly and unambiguously acknowledges the city’s right to enact and enforce its own air-pollution abatement program.”

Of course, the BCCA appealed that ruling. Earlier this year, the Texas Supreme Court agreed to hear an appeal of the ordinance from a petition filed by a clutch of powerful energy and industrial companies who'd filed a lawsuit to overturn the city's clean air regulations. The group includes ExxonMobil Corp. and Dow Chemical (so you know they've got an impressive reach). At issue is whether Houston, or any city, has the right to put in an ordinance that they maintain is an interference with state law.

“The city incorporated the state's requirements into its own ordinance and this gave the city a mirror image of state regulations. Now they have to decide if it gave the city the same authority as the state,” Hester says. “The critical question is whether or not this type of city activity is an extension into gaps in the state regulation or whether it conflicts with the state's authority.”

Not that the BCCA is alone in this fight, by any means. In early August, Gov. Greg Abbott filed an amicus brief with the high court. “The Texas Constitution and Texas statutes prohibit city officials from interfering with the State’s enforcement of environmental regulations,” Abbott said in a statement. “I am committed to promoting economic development and job growth in the state of Texas by reducing the regulatory burden that drives up the cost of doing business.”

Meanwhile, lawyers for the city of Houston have maintained that the ordinance helps the city deal with a local issue – anyone who has had the misfortune to try to do anything cardio-intensive during one of the heavy smog days will probably concur – and that it is not intended to overstep state law. The court filings for the city also state that the ordinance has yet to even affect any of the companies that are members of the BCCA. It's simply a matter of getting cleaner air, the city says.

“The city does not set different pollution standards, but instead cooperates with TCEQ to 'vigorously enforce' air pollution standards consistent with the state’s policy to 'safeguard the state’s air resources from pollution,'” the city's lawyers wrote in a February brief. (Janice Evans, Mayor Annise Parker's communications director, says they aren't commenting on the case.)

Still, the BCCA, according to court filings, maintains that the ordinance “manifestly intrudes” in state law and regulations set up by the TCEQ. (We've put in a request for comment with Evan Young, one of the Baker Botts LLC lawyers representing BCCA. We'll update if we hear back.)

What's intriguing about this case is that the outcome might ultimately do more than just decide whether Houston has the right to regulate its own air quality. The case gives the Texas Supreme Court the chance to wade into a seldom-explored area of law looking at whether cities have the right to enact local regulations without clashing with state law, according to Law360. Should the high court decide in favor of Houston's ordinance, that, for instance, could potentially give the city of Denton some legal legs to bring back its anti-fracking ordinance. (Hester, however, contends the chances of that happening are still slim.) 

But a ruling against Houston would limit the city's ability to enact environmental regulations and that would mean the TCEQ would be the agency deciding how to penalize companies that pollute in Houston. “It's really a question of who gets to make the call on what type of enforcement should take place,” Hester says. “If the ordinance is upheld and the city feels like an enforcement action doesn't address their concerns, then they will be able to have their own enforcement actions.”