Environmental and Energy Law Blog

Tuesday, May 31, 2016

Texas Supreme Court Limits Cities' Role in Emissions

Can cities in Texas enforce state level environmental regulations?

In May, the Texas Supreme Court invalidated criminal enforcement provisions of Houston's air quality ordinance.  In particular, the court struck down stipulations that allowed for fines up to $2,000 a day for violations of state environmental regulations.  A requirement that certain facilities register with the city and also pay a fee was also invalidated.

Challenge by BCCA

The ordinance was challenged by BCCA Appeal Group Inc., a business coalition that was comprised of companies such as Exxon Mobil Corp., and Dow Chemical Co. among others. BCCA argued that the Houston ordinance was preempted by state law because certain provisions were inconsistent with TCEQ regulations. A state appeals court in Houston had previously ruled against BCCA  agreeing that cities have the power to enact and enforce air pollution abatement programs.

In its appeal to the Supreme Court, BCCA argued provisions in Houston's ordinance encroached on the state's regulatory authority and that state law promotes uniformity. The Texas Supreme Court agreed in part by ruling the criminal prosecution provisions of the Houston ordinance circumvented state law and the TCEQ's authority. In particular, the court found the city's registration requirements overrode TCEQ issued permits.

What the Court's Ruling Means

While this ruling limits Houston's enforcement authority in favor of state regulators, cities can still play a complementary role in enforcing state air quality rules. The court's ruling allows cities to incorporate TCEQ regulations into their code and enables cities to enforce state rules provided that a state agency has oversight of any enforcement action. For all intents and purposes, however, cities must defer to the state's authority with respect to criminal penalties.

Some observers noted that the case reinforces the state's role in advancing certainty and uniformity for business operations. Lacking specific legislation granting cities regulatory authority, they cannot act to supersede state agency rules. In short, industries must continue to comply with TCEQ environmental rules, obtain the appropriate permits, and work proactively with the agency to resolve any issues of noncompliance. Houston's misstep here was in its grab at criminal enforcement powers, whereas other cities, like Dallas, can still enforce code regulations by assessing fines for actions that are not deemed to be criminal violations.

The bottom line: regulated industries must still work within the framework of the TCEQ's regulatory powers and operate in a way that will not lead to a criminal proceeding by the state. For this reason, it is best to engage the services of an attorney experienced in environmental and energy matters to ensure your business is in compliance with the environmental laws in Texas.

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