Houston seeks to uphold air pollution ordinance at Supreme Court; Businesses argue against hostile action

By The SE Texas Record | Sep 8, 2015

AUSTIN – Houston can punish air polluters as criminals in a manner consistent with state regulators who impose civil penalties, the city argued at the Supreme Court on Sept. 2.

Houston seeks Court approval of an ordinance creating an agency to enforce air quality regulations of the Texas Commission on Environmental Quality.

Businesses with state emission permits have delayed enforcement since 2008.

At oral argument, the theory of city counsel Robert Higgason that city and state enforcement would be consistent encountered doubts.

Chief Justice Nathan Hecht stopped him as soon as he started, asking if the motive behind the ordinance was stricter enforcement.

“The motivating factor was clean air,” Higgason said.

Hecht asked it again and Higgason said, “If you want to call it stricter, that’s fair.”

“Then why is that consistent with the state scheme?” Hecht asked.

As he began to answer, Justice Paul Green asked him if the state would have to monitor every city if they all adopted the same ordinance.

Higgason said no.

Justice Debra Lehrmann offered him relief, saying it seemed it wouldn’t matter whether the city or state determines compliance.

“TCEQ is under funded,” Higgason said.

“It would alleviate some pressure on the TCEQ,” Lehrmann said.

Justice Eva Guzman said the city’s discretion in enforcement could be inconsistent with the state.

Higgason said the ordinance does not require prosecution.

“But the city has taken some of that discretion,” Guzman said.

“I can’t agree,” Higgason responded. “The statute envisions doing this.”

Guzman asked for a response to a brief from a friend of the court, and Higgason said, “TCEQ is unable to vigorously enforce this.”

Hecht said different discretion in prosecution might be disruptive, and Higgason said, “It’s not disruptive, your honor.”

Green read aloud from the record and said, “It’s inconsistent.”

“Correct, but it doesn’t say you can’t do that,” Higgason said. “The city has a range of options available to it.

“This is not a way to go to immediate prosecution.”

For the businesses opposing the ordinance, Evan Young said TCEQ must be a party to any civil action under the Texas Clean Air Act.

Hecht asked about penalties, and Young said each offense is up to $2,000.

Young said TCEQ has discretion in trying to manage competing priorities.

Guzman said the Legislature didn’t want the commission acting alone.

He said the city can enter and inspect premises at will, and can appeal TCEQ actions at Travis County court.

“It’s open hostility,” he said.

First District appellate judges upheld the ordinance in 2013.

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