Environmental News and Views Vol. 9

Hello, and welcome to the eighth edition of Environmental News and Views!?This is a content series made up of several updates on what is happening.?If you have not already done so, check out Volumes One, Two and Three, ?Four,?Five, Six, Seven, and Eight!?

Here is the latest on a few things.

THE LEAD.?June 22nd Sunset Advisory Commission Hearing.?The full Sunset Advisory Commission met last week to take up or down votes on recommendations for changes at the Texas Water Development Board.?Among these, the commission adopted statutory and management recommendations to improve project reviews and evaluations of programs and outreach efforts.?At the request of Senator Charles Perry, the commission also voted to not adopt a Sunset staff recommendation to abolish the SWIFT Advisory Committee—instead, it will be recommended for the same 12-year extension as the Board.?

The commission also unanimously adopted several new recommendations from its members.?Per Vice-Chair Holland, the Board was directed to work with the Legislative Budget Board to establish performance metrics for the project review process.?Also adopted was a recommendation from Senator Perry that the Board conduct a feasibility review of certain projects in the State Water Plan, including reservoirs, interstate water transfers, and desalination projects.?The Board is to analyze project timelines, costs, land acquisition considerations, and economic impacts.?Senator Perry was quite candid that the Board should “force the issue” on whether certain projects are truly feasible.

With these changes, the Board can begin implementing non-statutory recommendations immediately.?Work can also begin on their “Sunset bill” for the next session.?The full decision document for the Board can be found here. ?

The commission also heard almost eight (8) hours of public testimony on the staff reports for the Texas Commission on Environmental Quality (TCEQ) and the Texas Low-Level Radioactive Waste Disposal Compact Commission (Compact Commission).?Several dozen citizens from Harris County arrived on buses chartered by Senator Boris Miles, Harris County Commissioner Adrian Garcia, and environmental groups.?Dozens of other witnesses also testified, bringing the total to over one hundred folks.

Additionally, Senator Miles, Representative Brooks Landgraf, Representative Armando Walle, and Representative Penny Morales Shaw attended and were allowed to ask questions.?A written statement provided by Senator Carol Alvarado was read into the record, and the interest of Representative Senfronia Thompson was noted.??

People do not drive 150 miles to tell you are doing a good job, and the hearing certainly was no exception to that rule.?It is safe to say that the majority of commenters blasted TCEQ, accusing it of not doing its job.?

The broad issue was “environmental racism” as manifested primarily through concrete batch plant permitting in Harris County.?While it was pointed out that the City of Houston lacks zoning authority (in contrast to the City of Dallas, which is moving to limit where concrete batch plants can be built), it should also be noted that Harris County also has unincorporated areas.

TCEQ Chairman Jon Niermann was given an opportunity to explain the TCEQ’s permitting process, including how it conservatively develops air quality standard permits.

While dominating the discussion, concrete batch plants were not the only issue raised by commenters.?Other witnesses called for tighter regulation of aggregate production operations, higher penalties for deterrence, an end to the affirmative defense for emissions events, and the prohibition of discharges into twenty-two “pristine” streambeds around the state.

Representatives from regulated entities expressed opposition to Sunset staff recommendations related to the use of compliance information by the agency, such as adding more violations to the formula for classifying a regulated entity’s compliance history and minimizing the role of site complexity.?There was also support for the staff recommendations to institute a timeframe cap on nuisance complaints to reduce the number of resources devoted to investigating unsubstantiated complaints.?There was broad opposition to canceling water rights that go unused for more than ten (10) years.

As for the Sunset Advisory Commission, individual members expressed skepticism of certain staff recommendations.?Senator Perry expressed concern that these particular recommendations indeed strayed too far into the policy purview of the Legislature.?I would bet a dollar that the recommendations pertaining to expanding public participation (such as adding a public meeting) will at the very least be tightened-up so as not to disrupt permitting timeframes.?I also think (but I could be wrong) that the water-related recommendations may not be adopted at all.?Of course, commission members can bring new recommendations.?

Several dozen comments have been added to the Sunset Commission website and can be viewed here.?The up or down votes on all of this will be October 12, 2022.

The Supremes Decide on EPA Authority.?By a vote of 6-3, the Supreme Court decided in West Virginia v. Environmental Protection Agency that EPA exceeded its authority when it adopted the Clean Power Plan.?

At the risk of oversimplification, the central question was whether certain provisions of the 1990 Federal Clean Air Act Amendments provide sufficient authority to EPA to adopt the sweeping economic regulation found in the Clean Power Plan. ??Writing for the majority, Chief Justice Roberts made clear the view that only Congress could grant such sweeping powers and that current statute is lacking.?In her dissent, Justice Kagan accused the court of tying EPA’s hands when trying to deal with, “the most pressing environmental challenge of our times.”

The fear in some quarters now is that the “Chevron deference” will be collateral damage.?The court’s decision could tip the balance away from administrative agencies, such as EPA, and back toward Congress.?Additionally, the current administration’s drive to make climate the central concern of all Federal Agencies (i.e., not just the natural resource agencies, but others such as the Securities and Exchange Commission), could be in jeopardy.

Permian Basin Ozone Nonattainment Area??Late last week, there were burblings that the U.S. Environmental Protection Agency would begin the process of unilaterally designating portions of Eastern New Mexico and West Texas as nonattainment for the 2015 ozone standard.?The news flew a little bit under the radar initially, but the klaxon is starting to sound.?

On June 27th, Governor Abbott sent this letter to President Biden calling on him to suspend EPA’s “discretionary” action. ?The Governor requests a response by July 29th and reserves the right for Texas to defend the state’s interest.

Just my two cents:?this action is another example of the incoherence of the Biden Administration’s energy and economic policies.

Environmental Groups Petition EPA.?On June 28th, 13 environmental and community groups filed a petition with EPA demanding TCEQ be required to consider environmental justice in permitting and reform its permit-by-rule permitting system.?Stay tuned.?

Thanks for reading everyone!

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