Texas Supreme Court Blocks Houston Air Quality Ordinance

The Texas Supreme Court ruled to strip Houston of its authority to enforce additional air quality regulations Friday.

In 2007, the city amended its air quality ordinance to require industrial polluters to register with the city. It also modified regulations to collect fees from businesses and use the funds to police industrial operations and fine violators.

In the majority opinion, the Supreme Court justices wrote that the Houston ordinance is “inconsistent” with enforcement requirements in the state law, and its registration requirement “makes unlawful what the [state Clean Air] Act approves.” Eight justices concurred with the majority opinion and Justice Boyd dissented in part.

The ruling reverses a lower court’s decision and is the latest development in the fight over local versus state control on environmental regulations. The decision is a blow to the city and to environmental groups that have been working to improve air quality in Houston and hold polluters accountable. Houston, which has some of the highest levels of smog in the country, is currently not in compliance with federal regulations limiting smog pollution.

The suit was filed by the Business Coalition for Clean Air Appeals Group in 2008. The coalition, which is funded by large petrochemical companies such as ExxonMobil and Dow Chemical, argued that the city’s ordinance was in conflict with state regulations, making it difficult for businesses to comply with state laws.

Last year, Governor Greg Abbott filed an amicus brief in support of the coalition, saying that Houston’s regulatory oversight “unfairly penalizes small businesses and is not the most effective way to promote compliance with the State’s environmental laws.”

The Texas Commision on Environmental Quality (TCEQ) has primary enforcement authority of clean air laws. But critics of the agency have said it has been lax in its regulation, allowing large polluters to skirt environmental laws with minimal repercussions. A report released by environmental groups Wednesday blamed high rates of illegal industrial emissions, occurring during malfunctions and maintenance events, on legal loopholes and poor enforcement of state laws by the TCEQ.

City officials cited the TCEQ’s poor enforcement record as the main reason for amending their air quality ordinance and said they were trying to bridge the gap by using fees from the industry to better monitor the industry’s activities.

“The practical effect of [the ruling] is there will be less resources available in Houston to oversee polluters,” Adrian Shelley, executive director of the environmental nonprofit Air Alliance Houston, told the Observer. “There were already few violators being held responsible because of the lax regulatory climate and now that situation will just get worse.”

Correction: A previous version of the story stated the ruling was unanimous. Justice Boyd dissented to parts of the majority opinion.