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.
That fight is now over. On Friday, the Texas Supreme Court issued its ruling on the case, BCCA Appeal Group v. City of Houston, nixing the ordinance in a vote of 8-1.
The Clean Air Ordinance was former Mayor Bill White's brainchild, as we've previously noted. For years the city shared air pollution regulation duties with the Texas Commission on Environmental Quality, but the city ended its contract in 2005 after city officials became frustrated with TCEQ's habit of imposing a fairly loose form of regulation. 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.
Former Mayor Bill White campaigned on a promise to clean up Houston's air and during his second term in office, in 2007, he followed through, announcing that Houston was going to use a nuisance ordinance to start bringing suit against industrial polluters outside of city limits. At about 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.
Under the 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 thoroughly displeased 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.
In 2008, this group filed a lawsuit against the city claiming the ordinance set the city up to usurp the power of the TCEQ.
The city lawyer's countered the BCCA argument, insisting that the ordinance, which incorporated a lot of the state's requirements, simply helped Houston deal with a local issue that wasn't being covered by the state environmental agency.
The ordinance has been bouncing through the court system ever since. 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.”
That reasoning apparently didn't fly with the Texas Supreme Court. The court reversed the lower court's ruling, finding that the ordinance's enforcement provisions and registration provisions are "preempted and therefore unenforceable."
It's a win for the energy companies and the other industrial outfits that challenged the law through the BCCA. So now TCEQ is once again the agency deciding how to penalize companies that pollute in Houston. Keep in mind the head toxicologist at TCEQ, Michael Honeycutt, maintains that smog is only a problem if you go outside.
In other words, the energy companies and other industrial groups that were behind the challenge to the ordinance have just scored a pretty sweet legal victory.
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