Texas SC to decide whether Houston can create its own air quality agency

By The SE Texas Record | Jul 15, 2015

AUSTIN – Justices at the Supreme Court of Texas must decide whether Houston can enforce an ordinance creating its own air quality agency.

The Justices plan to hear oral argument on Sept. 2, over a First District appellate court decision in the city’s favor.

The city council passed an ordinance in 2007, requiring owners of facilities within the scope of state law to register with city health officers and pay fees.

Sponsors promised to enforce the Texas Clean Air Act better than the state did.

Their ordinance authorized civil penalties and criminal prosecutions.

It incorporated specific provisions of state laws and regulations, “as if written word for word,” and “as they may be changed from time to time.”

It provided that it would change as laws and regulations change.

Facility owners formed a Business Coalition for Clean Air and petitioned Harris County court for an injunction against enforcement.

They claimed Houston usurped powers that the Legislature gave to the Texas Commission on Environmental Quality.

They argued that Houston violated a section of the Texas Constitution barring home rule cities from enacting ordinances inconsistent with state laws.

Houston defended the ordinance as a legitimate exercise of police power.

It argued that no law limited its right to regulate air pollution within its borders, and that the ordinance was consistent with state law.

The council amended the ordinance in 2008, to set a cap on fees for owners of single locations with many regulated facilities.

They deleted the word criminal too, but the coalition persisted in its petition.

District Judge Dan Hinde granted summary judgment to the coalition in 2011, finding the ordinance inconsistent with state law.

Houston appealed, pleading that the coalition “enjoys what it perceives to be a permissive regulatory approach.”

Houston argued that the coalition feared a vigilant watchdog.

First District judges reversed Hinde in 2013, finding the ordinance consistent with state law.

Justice Jim Sharp wrote, “If the legislature decides to preempt a subject matter normally within a home rule city’s broad police powers, either expressly or by implication, it must do so with unmistakable clarity.”

He wrote that neither the Texas Clean Air Act nor the Texas Constitution expressly limits the power of a home rule city or grants the state exclusive authority.

“Although the Texas Clean Air Act is extensive in its scope and there is considerable overlap between the ordinance and the Texas Clean Air Act, the mere fact that the city is attempting to regulate the same subject matter as the state does not, in itself, mean that the legislature intended to preempt such municipal regulation, much less with unmistakable clarity,” Sharp wrote.

He cited a precedent upholding city regulation of oil well drilling, despite the broad authority of Texas Railroad Commission over wells.

Sharp wrote that a city’s authority to enact ordinances under its police power carries with it a right to impose reasonable fees.

He wrote that the ordinance does not render the actions of the environmental quality commission ineffective inside the city’s limits.

“On the contrary, the city officers charged with enforcing the ordinance are required to defer to the agency’s decisions with respect to the lawfulness of a given air contaminant emitter’s actions,” he wrote.

“If conduct is not unlawful under state law, as determined by TCEQ, it is not unlawful under the ordinance.”

Justices Terry Jennings and Laura Higley concurred.

At the Supreme Court, Judith Ramsey represents Houston. Cristina Espinosa Rodriguez and Evan Young represent the Business Coalition for Clean Air.

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