Environmental -- 2016

BCCA Appeal Group, Inc. v. City of Houston   (Texas Supreme Court)

Preemption of Houston's air regulation

The NAM and the U.S. Chamber of Commerce filed an amicus brief urging the Supreme Court of Texas to overturn a lower court ruling that allows the City of Houston to run its own clean air enforcement office. Our brief argued that such local enforcement is preempted under provisions of the Texas Constitution by the Texas Clean Air Act. Principles of federal preemption law can be used to analyze the validity of the city ordinance.

Preemption is required because the Houston ordinance is inconsistent with the state's chosen method of regulating the air in Texas, making an end-run around the Texas Clean Air Act's delegation of authority to the Texas Commission on Environmental Quality (TCEQ). It also upsets the law's requirement that TCEQ balance environmental and economic interests. Even though Houston claims to use the same underlying environmental laws in its enforcement efforts, "a conflict in technique can be fully as disruptive to the system Congress enacted as a conflict in overt policy," according to the Supreme Court. There are legitimate roles for the city in environmental enforcement within the Clean Air Act's statutory structure, but establishing its own enforcement office is not one of them. Houston's goal was to disrupt existing environmental enforcement in the state, and that violates the law's balance in giving prosecutorial discretion to TCEQ.

The ordinance threatens to balkanize air quality enforcement around the state, and is part of a growing trend by home-rule cities to go beyond state environmental restrictions. Home-rule powers determine whether some localities may ban fracking or other projects with environmental implications.

On 4/29/16, the court found that Houston's enforcement provisions are inconsistent with the statutory enforcement requirements, and the ordinance's registration requirement makes unlawful what the Texas Clean Air Act approves. The Houston ordinance allows criminal prosecutions without following the procedures required by the Texas Water Code, which is inconsistent with the code, converting "what is primarily an administrative and civil enforcement regime under state law into a primarily criminal enforcement regime . . . ." The state legislature clearly intended that TCEQ determine the appropriate remedy in every case. The court also rejected Houston's effort to require that all facilities be registered with the city, since that makes unlawful the operation of a facility that otherwise complies with the Clean Air Act and the TCEQ rules. This decision will help streamline the permitting process by keeping that responsibility at the state level only.

Related Documents:
NAM amicus brief  (January 12, 2015)


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