Thirteen organizations, led by environmental advocacy heavy hitters Earthjustice, Environmental Integrity Project, and the Sierra Club, petitioned the EPA on June 28, 2022, urging the Agency “to take action in Texas, where the state’s air permitting program has for years failed to meet public participation and environmental justice obligations under federal environmental and civil rights laws,” Earthjustice says in a press release. “Until EPA addresses the deficiencies identified in the petition, the Texas Commission on Environmental Quality (TCEQ) will continue its discriminatory practices that ignore input from the communities most harmed by air pollution and neglect to evaluate environmental justice impacts in permitting decisions.”
In the petition, the groups accuse the TCEQ of violating both the Civil Rights Act and the Clean Air Act (CAA) by consistently refusing to conduct environmental justice (EJ) analysis in the state’s air permitting process.
Title VI of the Civil Rights Act states that any program receiving federal funds cannot discriminate based on color, race, or national origin.
The TCEQ has stated in EPA filings that EJ “reviews are too burdensome to conduct …” and that EJ impacts of individual permits are “not relevant to the issuance of [a] permit,” says Earthjustice.
The El Paso Times reported that the EPA declined to comment in response to questions about the petition.
The petition reminds the EPA of its obligations under the CAA to ensure state programs meet federal CAA requirements, and it identifies three alleged unlawful barriers under the Act in the TCEQ permitting process:
- Limiting access to judicial review of permits;
- Allowing public information to be withheld from the public;
- Allowing operators to use unenforceable permits to authorize new construction, modifications, and emissions increases without any meaningful opportunity for public participation.
“Under Texas law, only ‘affected persons may participate in Texas’ contested case hearings, a critical step in judicial review of air permits,” the Earthjustice press release adds. “However, TCEQ arbitrarily presumes that people who live more than one mile from a facility seeking an air permit are not affected persons even though air pollution is not contained to this short boundary. For example, TCEQ recently ruled that Petitioner groups San Antonio Bay Estuarine Waterkeeper and Texas Campaign for the Environment were not ‘affected persons’ for contesting an air permit for an oil export terminal expansion near Port Lavaca, Texas even though the groups had members who fish commercially and recreationally near the terminal, regularly monitor for pollution nearby, have respiratory health problems, and live under two miles from the terminal.”
Sunset Advisory Committee review
A recent report by the Texas Sunset Advisory Committee found the TCEQ has become “reluctant regulators” and that the state agency often encourages “self-policing” by industry. Key recommendations for the TCEQ in the report include:
- Clarify statute to require public meetings on permits to be held both before and after the issuance of the final draft permit.
- Direct the commission to vote in a public meeting on key foundational policy decisions that establish how staff approach permitting and other regulatory actions.
- Direct the TCEQ to develop a guidance document to explain how it uses the factors in the rule to make affected person determinations.
- Increase access to TCEQ information online.
“In a letter responding to the report, TCEQ Executive Director Toby Baker wrote that the agency ‘questions some of the word choices and opinions’ in the report, but welcomed the opportunity to improve,” says The Texas Tribune. “The TCEQ said it agreed with many of the Sunset Commission’s recommendations, including more transparency, especially in improving its website.
“During committee testimony, TCEQ Commissioner Jon Niermann said he wants the agency to be better. ‘We want to do a better job of communicating with the public,’ he said. ‘We want to be more transparent.’ But he also said some of the Sunset staff’s recommendations — including altering the agency’s compliance history formula to require the agency to include minor violations when considering issuing permits — would be a ‘more heavy-handed or punitive’ approach. Such changes, he said, would require more money and staff.”
The Biden EPA has consistently taken action to show EJ concerns will be addressed, and EPA Legal Tools to Advance Environmental Justice (EJ Legal Tools), a recent publication by the EPA Office of General Counsel, outlines specific actions the EPA and other federal agencies can take in utilizing existing regulations to advance EJ goals.
The document specifically mentions utilizing the CAA and the Civil Rights Act to promote EJ in overburdened communities.
These facts would seem to point to an EPA response to the groups’ petition that will ensure the TCEQ complies with federal requirements in its air permitting program.
The other groups included in the petition are Port Arthur Community Action Network, San Antonio Bay Estuarine Waterkeeper, Diane Wilson, Familias Unidas del Chamizal, Shrimpers and Fishermen of the RGV, Citizens Alliance for Fairness and Progress, West Dallas 1, Texas Environmental Justice Advocacy Services (t.e.j.a.s.), Air Alliance Houston, Texas Campaign for the Environment, Sierra Club Lone Star Chapter, and the Sierra Club.