For more than three years, Roger Hurlbut had a front-and-center view of how the Texas Commission on Environmental Quality evaluates permits for industrial facilities across the state.
Alongside his wife and neighbors, Hurlbut fundraised more than $130,000 to oppose Bosque Solutions’ attempt to build a concrete batch plant on a rural residential road just outside of Mansfield. Their concerns ranged from the plant’s potential impact on air quality and health to increased traffic and decreased property values.
“People were concerned about our ability to live on our properties, our quality of life,” Hurlbut said. “We were successful by keeping the politics out of it and going to the actual core things people care about, and that’s their health, that’s their safety.”
In mid-2021, the group of homeowners became the first Texans to win a legal challenge against a concrete batch plant application. Commissioners eventually denied the permit request, and it’s been quiet on Gibson Cemetery Road ever since.
The saga put Hurlbut and his neighbors at the center of an escalating conflict over the role the Texas Commission on Environmental Quality should play in regulating industrial facilities and considering public opinion in its decisions. The commission oversees enforcement of air and water quality standards as well as permits for facilities seeking to emit pollutants into the air or water bodies.
“The process is heavily slanted against challenging permits,” Hurlbut, who practices law in Arlington, said. “That’s a fact. It’s more than an uphill battle. It’s almost a foregone conclusion. I guess you could say it’s almost like a rubber stamp.”
Hurlbut is not alone in his skepticism toward the commission, which is currently under scrutiny as part of the state’s sunset review process, which will examine 131 agencies over the next 12 years. The sunset process, which is carried out by a commission mostly made up of state legislators, assesses whether a state agency or program should continue to exist.
Unless the Texas legislature passes a bill to continue the agency’s operations – typically for a period of 12 years – the agency is automatically abolished. The process is also used as an opportunity to identify areas for improvement in agency operations and make recommendations that will be included as part of a bill introduced during the legislative session.
The sunset advisory commission is evaluating several agencies this year in preparation for the 2023 legislative session. Those include the Texas Water Development Board, the Texas Commission on Environmental Quality, the Texas Juvenile Justice Department and the Public Utility Commission, which has faced intense criticism for its handling of the electricity crisis during the February 2021 winter storm.
Public meeting on environmental recommendations set for June 22
When it comes to its evaluation of Texas’ environmental agency, the sunset advisory commission released its initial recommendations in late May and will host a public meeting about the report in Austin on June 22.
Texans can also submit comments on the sunset commission’s website, which will be taken into consideration before members vote on final recommendations later this year. From there, the recommendations will be translated into a bill to be passed during the 2023 legislative session.
Because most of the sunset process takes place outside of the public eye, Texas environmental and consumer advocacy groups decided to form a separate committee focused on engaging the public about the sunset process. The “For Our Communities” initiative includes nonprofits like Environment Texas, Air Alliance Houston, Greater Edwards Aquifer Alliance and Public Citizen, which works on clean energy issues.
Members of the coalition have hosted public meetings in San Antonio, Houston and Dallas focused on collecting feedback about the Texas Commission on Environmental Quality. “For Our Communities” will hold a final, statewide virtual hearing on June 8 where Texans can voice their opinions on the agency.
Those comments will be transcribed and submitted to the sunset advisory commission at the in-person Austin meeting, said Adrian Shelley, the director of Public Citizen’s Texas office.
“There were earlier steps of the process, where we did a lot of our own work to engage (sunset) staff, taking them on tours of sites of interest around the state and meeting with them on particular issues,” Shelley said. “But with this step, there is just one public meeting, and so we’re trying to supplement that opportunity with additional hearings.”
At the coalition’s public meetings, most participants said they want to see an agency that prioritizes the needs of communities and individuals over the desires of companies seeking air emissions, wastewater or mining permits, Shelley said.
In its May report, the sunset advisory commission acknowledges widespread frustration toward the agency and confusion regarding what Texas environmental officials have the power to regulate. State Rep. Craig Goldman, a Republican representing southwest Tarrant County and a member of the sunset advisory commission, did not respond to an interview request.
“Overall, the Sunset review found TCEQ performs admirably administering its complex programs and should be continued,” the executive summary reads. “However, the Sunset review also observed confusion and misperceptions about how and why TCEQ makes certain decisions, which contributes to a concerning level of distrust of the agency — by regulated entities, environmental advocates, public officials, and the general public.”
If the sunset advisory commission’s recommendations are adopted, the agency would be required to host a public meeting both before and after officials issue a draft permit. Currently, public meetings are only held after the Texas Commission on Environmental Quality has given the initial go-ahead on industrial and wastewater permits.
In addition, the sunset advisory commission recommends clarifying rules around who is allowed to contest a permit in state court and creating a more user-friendly website, featuring a calendar of public meetings and a database of permit applications.
On the regulation enforcement side, the commission recommends requiring the environmental agency to consider a corporation’s entire history of noncompliance when issuing fines and classifying companies as repeat violators.
Improving public participation doesn’t address all issues, advocates say
While having more opportunities for public input is a positive change, Hurlbut said, public meetings can be a “show pony” that doesn’t lead to meaningful change from state officials.
“Having more public hearings might cause a lot of excitement, but it seems like a box to check off,” he said. “We gave the people a chance to let off steam. Now let’s get back to what we normally do.”
Shelley and his allies support the public participation recommendations, but the sunset commission is off-base when it comes to characterizing all criticisms of the TCEQ as stemming from confusion about the agency’s responsibilities, he said.
For example, environmental activists would like to see the TCEQ remove “economic development” from its mission statement to reflect the state’s commitment to protecting its citizens rather than industry, Shelley said.
“I don’t think that all of the criticisms that members of the public have made, and particularly not the criticisms that professional advocates made, are all reducible to either a confused public or a NIMBY (“not in my backyard”) concern,” Shelley said. “There are real substantive critiques about the agency’s priorities that are overlooked.”
The sunset process is not an opportunity for large-scale reform of the TCEQ, Shelley said. That would have to come from legislative action. However, he said, the sunset process will lead to procedural improvements that will make the agency work better for Texans, Shelley said.
“The sunset process is the best process that we have to make real substantive critiques against an agency that works on our behalf,” he said. “It’s a process that has yielded results in the past. There are victories to be had, but we need the help from an interested public.”
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