Sunset Dispatch #1: And We're Off!

Hello, friends!?Long time, no post.?Well, of articles anyway.?I had a lot of really nice feedback on my last write-up on the founding of the Texas Commission on Environmental Quality (TCEQ).?Thank you all so much.

Since I wrote that article last July, the only environmental issue tackled by the Texas Legislature dealt with the “interim” storage of spent nuclear fuel in Andrews County.?As much heat as that issue generated (some of which I felt), the Legislature was focused on other things.?In the meantime, TCEQ took some major regulatory actions, some of which I highlighted.

Now, though, seems like a good time to gear back up and start talking about what might be on the Legislature’s plate next session.?And why might that be??Well, Sunset of course!

The Sunset Review of many Article VI (Natural Resource) agencies has started in earnest, with Sunset staff already taking their deep dives into the weeds at the various affected agencies.?I thought it would be helpful to catch ?you all up on some things I have heard and discuss some of the issues that have already emerged.?Let us do our own deep dive....

First, A Refresher.?If you have read any of my previous articles on the Sunset process, you may recall that there is an extended period of intensive review at the outset.?Click here for the Commission’s helpful broad overview of their timeline.?Here’s the more detailed schedule as it stands now.

Note that the reviews for the following agencies have already begun:?Texas Water Development Board, Texas State Soil and Water Conservation Board, San Antonio River Authority, TCEQ, and the Texas Low-Level Radioactive Waste Disposal Compact Commission.?Of course, it is no accident that all of these agencies have some overlapping or at least complimentary functions, not to mention cross-cutting issues, that bear being reviewed all at the same time.?That is why these reviews, in my view, should all be monitored.?There are lots of opportunities for card decks to get reshuffled, rearranged, etc.

The reviews began in October with broad agency overviews presented by senior management.?Sunset staff is now drilling down into the detail at the major programmatic level.?

As for TCEQ, if this review cycle pans out like the ones in 2000-2001 and 2010-2011, we can also expect Sunset staff to visit representative regulated entities for a more “boots-on-the-ground” sense of what the agency does.?Such site visits also provide an invaluable opportunity for the regulated community to engage in the process, including briefing the Sunset staff on the actual mechanics, opportunities, and challenges associated with compliance.

And, as I have written before, outside input at this stage—be it from the regulated community or watchful non-governmental entities—is confidential.?Having been through two Sunset reviews at TCEQ, I do believe the input provided during this phase of the process is not only kept close to the vest but placed in an inside pocket.

Each agency under review gave the Sunset Commission an exhaustive list of interested stakeholders.?If you want to see if you are on the list, you can check out each agency’s self-evaluation report by clicking on the agency name from this page.?I also would not wait to be contacted, particularly with a large agency such as TCEQ—proactive outreach is better.

Additionally, as a practical matter, the sooner you provide your input, the better.?On its website, TCEQ is recommending input be provided by February 1, 2022.?In my own conversations with Sunset staff, they have echoed this request as they will be doing the heavy writing in the Spring.?So, while the schedule says this part of the review extends until May, I suggest you start communicating now.

Finally, generally speaking, next summer is when you can expect the deliberative portion of this process to begin.?It?will start with the issuance of the “staff report” that outlines the issues they have identified and how they could be addressed, either through operational or statutory changes.?The full Sunset Commission (five Senators, five State Representatives, and two members of the public) will receive the staff report in an open meeting, then it will be open for public comment, then the commission will meet again to take final action on the recommendations.?Look for that to take place between June and September of next year.

Then, of course, there will be legislative action in 2023, and agency implementation to follow.?I am telling clients to think of this as at least a two- to three-year proposition.

Commission Appointees.?On September 21, 2021 Lieutenant Governor Dan Patrick announced the appointments of Senators Charles Schwertner, M.D. (as chair), Angela Paxton, Brian Birdwell, and Drew Springer to the Sunset Commission.?According to the announcement, Senator Lucio will continue to serve until the end of his term in 2023.?The Senate’s public member is James “Jim” Lee of Houston.

The Senators will be joined by State Representatives John Cyrier and Craig Goldman.?House Speaker Dade Phelan will appoint three more House members, as well as a member of the public.?As of this writing, we expect those appointments to happen any time.?Given that Senator Birdwell, Chairman of the Senate Committee on Natural Resources and Economic Development was appointed for this review cycle, it would not be surprising if an environmental policy expert is among the Speaker’s appointees.?Additionally, we will also need to see what impact, if any, comes from Representative Cyrier’s announcement that he will not seek reelection in 2022.?Watch this space! (Image from sunset.texas.gov)

Sampling of Issues Raised Thus Far.?At this point, the only issues I have seen that have already been placed into the record have been submitted by coalition of NGOs as part of TCEQ’s Sunset review.?Frankly, the broad topics raised are not surprising.?Public participation in permitting, the inadequacy of environmental penalties, the permitting process itself, and emissions events/affirmative defense are familiar to all of us.?If you have not seen it, here is their letter to TCEQ.?Additionally, it would not be a surprise if these groups hold town hall meetings on TCEQ’s review, just as was done during the last review of the agency.

Another thing to keep an eye on—in parallel with the Sunset Review, the Legislative Budget Board will be conducting a Strategic Fiscal Review of the state agencies under review.?As I have said before, the state budget is policy, and any Sunset report should be read in tandem with this comprehensive analysis.?To see what they pulled together last year, click here.

So, as things stand, we have a general sense of what the review schedule is, what Sunset staff will be focused on over the next few months, and an early preview of the issues, at least from the NGO perspective.?I will say, however, that as far off as next summer may seem, I would heed the advice to get your input in sooner rather than later, particularly while it is confidential.

In the meantime, I will post updates in this space as warranted, and I will occasionally file a new dispatch as the contours of the review come into sharper relief.?Thanks for reading.?If I can help, please let me know!

xxx