On Tuesday April 16th, the Senate Natural Resources committee voted 6-3 in favor of legislation to weaken the rights of Texans to protect their communities by challenging the permits of polluters. SB 957 (Fraser) makes major changes to the contested case hearing process, which has helped Texans win stronger environmental protections in permits to build new or modify existing landfills, hazardous waste facilities and power plants.
“We are very disappointed by the committee’s vote today,” said Environment Texas Director Luke Metzger. “The deck is already stacked against residents when a powerful polluter applies for a permit to discharge chemicals in to our air, water and land. The contested case hearing process has played a critical role in giving residents the ability to ask the polluters tough questions and make them take steps to mitigate health and environmental threats.”
“When polluters apply for a permit to pollute, they are basically asking for the state’s permission to contaminate our environment,” said Tom “Smitty” Smith, Director of Public Citizen’s Texas office. “Current law has protections in place to help reduce the impact on the neighboring communities, but this bill eliminates those protections and shuts the public out of the process.”
“This bill dilutes public participation and effectively eliminates the contested case hearing process,” said David Weinberg, Executive Director of the Texas League of Conservation Voters. “This is terrible public policy.”
The bill was supported by Senators Nichols, Seliger, Eltife, Hegar, Estes, Fraser and opposed by Senators Duncan, Ellis and Uresti. Senators Hinojosa and Deuell were absent.
Background on SB 957
The Committee Substitute (i.e., CSSB 957) unjustifiably shifts the burden of proof to the public. The company seeking the permit has all the data and nearly all the money, but:
CSSB 957 requires the protesting parties bear the burden of proving that an application should be denied. Under CSSB 957, a “tie” goes to the company seeking the permit; this changes present law.
Shifting the burden of proof will force members of the public to spend more money on fact-finding and experts.
The deck is already stacked against the protesting public. Going into a hearing, the permit applicant and the TCEQ Executive Director are aligned: they claim the information and analysis already presented to the agency adequately address every permit issue. The permit applicant does not need more help.
CSSB 957 creates new limits on the public comment process that disproportionately impact low-income communities.
Currently, TCEQ must hold a public meeting (not a hearing, just a meeting) in response to significant public interest or if requested by a state legislator. Currently, the TCEQ responds to public comments, if they are “formally” offered at the meeting. CSSB 957 would define the entire public meeting as an “informal” process, thus, relieving the TCEQ of its duty to respond to comments.
Particularly for low-income members of the public (e.g., for members who often lack the resources to hire attorneys or experts to prepare written comments or lack ready internet access or lack writing skills), public meetings, under present law, provide the most realistic way to get answers to their questions.
The Worst Part of CSSB 957 is that it makes a sham of the public’s “Contested Case Hearing” Rights
Under CSSB 957, the “contested case hearing” may only consider information in papers and electronic files defined by the TCEQ as the “record.” The record is limited to materials previously submitted to or gathered by the TCEQ, but TCEQ has every incentive to say it considered a world of information (EPA guidance documents, for example), so the record could easily extend to 1000s of pages. CSSB 957 does not require TCEQ to state the fact findings or legal conclusions on which it relied for the draft permit, so the parties will be left to figure those out on their own.
There will be no discovery (e.g., depositions, site inspections or compelled document productions) in the hearings. There will be no live witnesses or cross-examination of the company’s experts. There will be nothing trial-like about this new “contested case hearing.”
An organization may not be a party to a so-called “hearing,” unless the organization has “documentation” that one of its purposes is to contest permit applications. The national environmental organizations generally state their mission statements more broadly, e.g., “to protect the natural environment.”
The so-called “hearing” is limited in duration to 120 days (unless a 60-day extension is agreed to by the company and TCEQ). Presently, an administrative judge takes 60 days simply to write an opinion. Since the facts in these cases are usually complex and the materials involved voluminous, the judge’s 60 days is fairly reasonable. CSSB 957 does not even require that the record be provided to the parties before the 120-day clock begins. The citizens will barely have time to figure out what is in the “record,” let alone identify and dissect the record documents on which TCEQ relied. The laws are very complicated, and industry lobbyists are constantly making them more complicated (with loop holes, for example). The mandatory nature of the deadline imposes overly harsh consequences, since it fails to allow flexibility for circumstances such as a disaster or the death or serious illness of a party representative, attorney or expert.
CSSB 957 jeopardizes federal delegation and funding of TCEQ wastewater, air quality and waste programs.
Limiting the scope of the hearing as set forth in CSSB 957 prevents the consideration of new guidance, rules, or technical information. In 2011, industry lobbyists pushed a similar bill, and EPA submitted a letter to the Legislature noting that such an action would jeopardize TCEQ’s delegation of federal programs.
CSSB 957 shifts the burden of proof to the public in a manner unlike any equivalent federal process prior to issuance of a permit. EPA also last session indicated this sort of thing would lead to a re-evaluation of the Texas programs.
CSSB 957 does not allow all affected persons to participate in the “hearing.” Since participation in the “hearing” will likely be ruled a step necessary to exhaust administrative remedies and allow an appeal to court. Such a limitation violates the conditions of Texas’s right to administer federal programs.
CSSB 957 modifies the substantive legal standards for an association to request a hearing, creating a new standard that differs from the standard for associational standing that is otherwise uniformly applied in state and federal proceedings. Any such deviation from federal standing requirements is likely to trigger close scrutiny by EPA and, possibly, disapproval.
As discussed, CSSB 957 creates a public comment process that disproportionately ignores comments by low income communities, and this jeopardizes federal approval of state environmental programs by violating federal Environmental Justice requirements.