Environmentalists Ask EPA to Strip Texas' Regulatory Authority

Alleging that Texas has dramatically eroded its safeguards against air and water pollution, two environmental groups are asking the federal government to step in.  

The Environmental Defense Fund and the Caddo Lake Institute are petitioning the Environmental Protection Agency to strip Texas of some of its authority under the federal Clean Air Act and Clean Water Act.

The nonprofits asked the agency to “review and withdraw its delegations of permitting authority to the Texas Commission on Environmental Quality” — the TCEQ — arguing that Texas lawmakers, by gradually cutting funding and passing more industry-friendly laws, have effectively rendered the agency toothless.  

The commission panned the petition. “Texas law has and continues to meet federal requirements – to suggest otherwise is misleading to the public," spokesman Terry Clawson said in an email. "We expect EPA to reject this frivolous petition.” 

And the EPA on Tuesday said it was "not aware of significant deficiencies in TCEQ-delegated environmental programs at this time."

"We will carefully review and consider claims raised by the environmental groups and respond accordingly," Melissa Harrison, a spokeswoman for the EPA, said in an email.

The nonprofits' request comes months after a particularly rough legislative session for environmental advocates. A wide range of industries scored key victories, including one bill that EPA officials have already questioned.

Senate Bill 709, signed into law by Gov. Greg Abbott, aimed to quicken regulators’ pace of cranking out permits for major industrial projects by limiting public scrutiny.

The bill sought to scale back "contested case hearings," which allow the public to challenge industrial applications for permits Texas environmental regulators handle, such as those allowing wastewater discharges or air pollution emissions.

Proponents argued the change was needed to keep businesses from fleeing to neighboring states.

In May, a spokesman for the EPA’s Dallas-based regional office wrote that the federal agency was “concerned” that the legislation could affect Texas’ ability to carry out certain federal requirements. That letter was in response to Rep. Eddie Rodriguez, D-Austin, who had asked for input on the matter. 

“The Legislature and Gov. Abbott thumbed their noses at these warnings,” Jim Marston, who directs the Environmental Defense Fund’s Texas office, said in a statement. “They passed and signed laws, respectively, that resulted in Texas’ clean air and clean water programs no longer meeting minimum legal safeguards, which puts the health of Texas families at risk.”

The nonprofits' request of the feds also named House Bill 1794 as problematic. That legislation, which Abbott signed in June, arguably made it tougher for local governments to sue big-time polluters — capping their payouts and setting a statute of limitations. The law largely targeted Harris County’s attorneys.

Abbott’s office declined a request for comment on Tuesday.

As it has in other states over the past four decades, the EPA has given Texas the authority to permit and enforce a variety of air, waste, water and mining programs after lengthy and complex negotiations.

The federal agency rarely — if ever — has completely revoked a state’s permitting authority. But there have been close calls.

In 2013, for instance, Arkansas lost some of its Clean Water Act authority after its legislature passed a bill changing requirements for discharging minerals into streams. Lawmakers fixed the legislation after several permits were routed to the EPA.

Experts can’t recall an example where the agency took away Texas’ authority, but the state has faced similar issues.

About five years ago, the state refused to follow regulations involving greenhouse gas permits, delaying dozens of energy projects and prompting a major outcry from the industry. The Legislature relented in 2013 and directed TCEQ to begin issuing the permits.