This is part 1 of a two-part series on the Texas Commission on Environmental Quality.
The Texas agency responsible for regulating air and water pollution is in the midst of a review that environmental advocates hope will help reform its reputation and strengthen its regulatory authority. Most Texas agencies are subject to a formal “sunset review” once every 12 years. It’s a prolonged process involving an internal agency study, feedback and criticism from the public and industry stakeholders and, eventually, new legislation to either reauthorize or abolish a given agency.
This year, it’s the Texas Commission on Environmental Quality’s turn in the hot seat. With two separate federal investigations currently underway into allegations that TCEQ has failed to comply with federal standards, the temperature is especially high.
Throughout 2022, a group of TCEQ staff working in liaison with the Texas Sunset Advisory Commission carried out an internal review of the agency and solicited feedback from the public and from industry. The Sunset staff found that the agency was insufficiently transparent in its permitting processes and public meetings protocols, generating “distrust and confusion among members of the public.” The staff also found that TCEQ did not sufficiently hold regulated entities accountable in terms of compliance monitoring and enforcement of violations. “Confronted with conflicting viewpoints and demands, TCEQ’s commissioners have in some ways become reluctant regulators,” the authors wrote in their final Sunset Staff Report, submitted to the Legislature in November 2022.
On Thursday, March 23, the House Committee on Environmental Regulation met to hear testimony on House Bill 1505, which would reauthorize TCEQ for another 12 years. The bill incorporates recommendations from the Sunset Staff Report. Substantial changes to the agency’s authorizing statutes include provisions designed to facilitate more public participation throughout the permitting process, to increase transparency, and to give the agency more latitude to punish violators. The new bill also expands TCEQ’s ability to make meeting notices and important information available in Spanish, a priority of environmental justice advocates, and to increase virtual access to hearings and digitized documents related to permit applications. (A companion bill, SB 1397, has passed the Texas Senate in the weeks since the hearing, but HB 1505 remains at the committee level.)
The reauthorization bill does not mention climate change, nor does the phrase appear on TCEQ’s website. When it comes to permitting new industrial projects, the agency does not consider climate implications. In a statement to Dallas-based TV station WFAA in 2021, TCEQ said it “uses air monitoring data and a variety of other inputs to develop future projections for air quality in Texas. … The agency does not use climate change projections to evaluate future impact on air quality.”
A recent permit for an Entergy Texas Inc. natural gas power plant in Bridge City — sandwiched between dense concentrations of oil and gas facilities in the Port Neches area — drew numerous public comments urging TCEQ to end fracking and to “support alternative, clean energy,” and expressing “concern about the effects of the project as it relates to climate change and global warming.” In its response, TCEQ claimed that climate change and energy source preferences are beyond its mandate.
“Climate change modeling and evaluations of risks and impacts are typically conducted for changes in emissions that are orders of magnitude larger than the emissions from individual projects that might be analyzed in permit reviews,” TCEQ wrote. “Thus, EPA has concluded it would not be meaningful to evaluate impacts of [greenhouse gas] emissions on a local community in the context of a single permit. … An air quality analysis for GHG emissions would provide no meaningful data.” Additionally, the agency wrote, “TCEQ cannot prohibit a private company from using any product or fuel source as long as such usage does not result in a violation of applicable environmental regulations or the NAAQS.”
TCEQ is not likely to face pressure from the EPA anytime soon over its lack of action on climate change. In 2022, the Supreme Court issued a long-awaited ruling restricting the EPA’s authority to regulate carbon dioxide. The ruling officially killed Obama’s Clean Power Plan, which the Obama administration called “a historic and important step in reducing carbon pollution from power plants that takes real action on climate change.” As part of the CPP, the EPA developed new rules to regulate carbon dioxide as an “air pollutant” that “may reasonably be anticipated to endanger public health or welfare” by causing climate change. But the Supreme Court ruled that the EPA only has authority to regulate air pollution under the National Ambient Air Quality Standards (NAAQS). “Carbon dioxide is not subject to a NAAQS and has not been listed as a toxic pollutant,” wrote Chief Justice John Roberts.
The ruling put a chill on federal and state agency efforts to tackle climate change and, more broadly, to create new tools to address evolving problems. “Remember, when Joe Biden was elected, he said we’re going to use a whole big government approach to climate change, not just EPA regulation,” Harvard law professor Richard Lazarus told NPR at the time. “Well, that whole government approach may now find itself under a cloud of this court’s opinion.”
Even with TCEQ’s narrow view of its own mission, industry lobbyists representing the Texas Oil and Gas Association, the Texas Chemical Council and the Texas Association of Manufacturers were on hand in force at the March 23 hearing to voice their concern about provisions that would raise the daily penalty cap for permit violations from $25,000 to $40,000 and give TCEQ more enforcement tools to monitor and punish repeat violators. But environmental and public health advocates — including unaffiliated members of the public and representatives from nonprofits Texas Public Citizen, Air Alliance Houston, Environment Texas and the Lone Star Chapter of the Sierra Club — testified that the TCEQ Sunset bill’s reforms do not go far enough.
“The Legislature could go much further with significant reform of the TCEQ,” said Delores McGruder, an elderly Black resident of Houston’s Fifth Ward who spoke on behalf of the nonprofit Coalition for Environment, Equity, and Resilience. McGruder, who serves as a “climate ambassador” with the organization, said that her neighborhood has been almost entirely walled in by the Union-Pacific Railroad, oil and gas facilities, and concrete batch plants — a dense concentration of polluters that she holds responsible for multiple cases of terminal cancer in her family. “I’m almost 80 years old, and you all meet every 12 years, so I won’t be around to testify again,” McGruder said, “but this is dealing with people’s lives, and even if you don’t know them, you affect people’s lives with your decision.”
The TCEQ’s poor record of serving the public interest and holding polluters accountable — failings that the Sunset staff highlighted in their own report — could have roots in the conflicting demands of the agency’s mission statement: “The Texas Commission on Environmental Quality strives to protect our state’s public health and natural resources consistent with sustainable economic development. Our goal is clean air, clean water, and the safe management of waste.”
According to the Sunset Advisory Commission, 80% of Sunset staff recommendations eventually become law, so these agency reviews represent a rare and important opportunity for reform and improvement of agencies charged with serving the public. In their engagement with the Sunset staff last year, environmental and public health advocates pressed for the removal of economic development from TCEQ’s mission statement, but the staff declined to include the recommendation in their final report. Following the Sunset staff recommendations, the current reauthorization bill does not address the contradiction in the mission statement.
“What’s the point of having a strong economy if people are physically in pain or suffering or their lives are cut short?” said Molly Cook, a registered nurse who testified at the March hearing. Cook, who is white, redoubled demands to remove economic development from the agency’s mandate. She spoke about the ongoing legacy of environmental racism in Texas, where a severely disproportionate percentage of Black and Hispanic people live in communities with high density industrial activity and poor air and water quality.
“There are members of communities, some here today, who repeatedly experience the risk that this agency and ultimately this body considers tolerable, and that isn’t fair,” Cook said, “and I don’t see their harm, their unwilling sacrifice, or their cries for help reflected anywhere in the language of this bill or throughout the language that governs TCEQ.”
This series will conclude tomorrow with part 2 of our two-part series on the Texas Commission on Environmental Quality.
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