Texas environmentalists may face new hurdles in opposition to industrial permits

In January, we forecast another move to chip away at the way citizens can contest controversial pollution permits.

Sure enough, the chairs of the Senate Committee on Natural Resources & Economic Development and the House Environmental Regulation Committee have filed companion pieces of legislation that would raise the bar for citizens to win standing to fight proposed industrial permits making their way through state agencies.

Looked at one way, we wrote last month, the effort is about streamlining the process to attract business to Texas and further improve the economy; looked at another way, it’s about bulldozing roadblocks to power plants, refineries and other major industrial sites.

The twist here is that the Texas Commission on Environmental Quality, the state agency that decides whether the industrial facilities can be built, is saying in court documents that environmental groups don’t have standing to fight a proposed East Texas coal plant facility because they did not obtain a contested case hearing when the issue was before the state agency.

Southwestern Electric Power Company owns and operates the coal-fired Henry W. Pirkey plant located in Harrison County. In 2010, the company asked the TCEQ to renew the permit for its landfill pond, which is used to impound water from the handling of coal ash, among other things. Environmental group Public Citizen alleged that limits in the permit were inadequate to protect the environment.

Both sides seem to agree they must exhaust available administrative remedies – but Public Citizen and Sierra Club say being granted a contested case hearing is not one of those remedies.

“An evidentiary hearing has been a continual component of the administrative procedure for issuing or amending a water-quality permit for more than a half century — since 1961,” attorneys from the Texas Attorney General wrote in a September 2014 filing on behalf of the TCEQ. “And it is apparent from the enactments through the years that the legislature intended that an evidentiary hearing would be among the available administrative remedies.”

But Eric Allmon, the attorney for the environmental groups, responded in October that  “Neither Southwestern Electric Power Company nor  the Texas Commission on Environmental Quality have identified any procedure that Appellants failed to pursue at the agency level to challenge TCEQ’s decision on the merits of the permit ultimately issued. They only identify a procedural remedy pursued by Appellants that TCEQ refused to grant. Thus, SWEPCO and TCEQ have failed to show that Appellants did not exhaust administrative remedies.”

The combination of the bills under consideration at the Legislature and the position of the state environmental agency and the state attorney general mean that it will be harder for citizens to obtain a contested case hearing, and that that higher bar will be used as a prerequisite for earning standing in a later court case, Allmon said.

We’ll track the fate of the bills, filed by state Sen. Troy Fraser, R-Horseshoe Bay, and state Rep. Geanie Morrison, R-

Author: Asher Price

Asher Price has covered energy and the environment for the American-Statesman since 2006. Twice the Society of Environmental Journalists has named him a finalist for its beat reporter of the year award. He spent part of the spring of 2011 as an environmental science journalism fellow at the Marine Biological Laboratory in Woods Hole, Mass., and during the 2011-12 academic year was stationed at Columbia’s business and journalism schools as a Knight-Bagehot fellow. He is the co-author of the book The Great Texas Wind Rush: How George Bush, Ann Richards and a Bunch of Tinkerers Helped the Oil and Gas State Win the Race to Wind Power. (UT Press.) His new book, Year of the Dunk, comes out in May 2015. He lives in the South Congress neighborhood with his wife and dog.

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