Jan 05 2018

The environmental regulatory system in Texas continues to expand—largely growing through new permit conditions and authorization requirements

(Houston) – January 5, 2018 – Letter from the Editor

As the saying goes “everything’s bigger in Texas”. Increasingly the saying applies not just to the Texas sky, but to the state’s environmental regulatory system.

The environmental regulatory system in Texas is growing in both size and complexity. In many respects this growth has now gone underground. It’s occurring where the public, and even the Trump administration, generally can’t see how large it’s becoming.

What most people don’t realize is that it’s not Congress via legislation, nor agencies through rule making, but permit reviewers through authorization conditions that now write most of the new environmental laws in the United States.

 

You can call a requirement “boiler-plate” or “BACT” or say “everyone’s getting that permit condition” and almost make people wear purple pajamas if you want.

Even permit-by-rules or PBRs that were previously immune to such conditions no longer are.  In fact, TCEQ has turned some PBRs into essentially “mini-permits”—requiring approval instead of registration (if all of us want to be honest with ourselves about it), and including requirements akin to special conditions in order to obtain TCEQ’s blessing.

TCEQ holds almost all the cards in these situations.  A company needs their permit.  Without it the company can’t make money.  Without it the company in fact is losing money.  Agree to the condition or lose.  And since the company is losing more money than almost any condition will cost them regardless of its merit, the company will eventually relent to more or less what the agency wants.  It’s a Hobson’s choice.  The agency will tell the company that the company had a choice and could have contested the permit, but of course this would have cost the company even more time and money—even if the company were to prevail.  Again, it’s a Hobson’s choice . . . or no choice at all.  The result is a growing environmental regulatory system.

De-regulation is not truly occurring—at least in Texas.  Essentially regulation is going underground where it’s getting even bigger and more complicated, and where there is even less transparency and accountability.  The environmental effectiveness and true costs of these authorization laws on companies and consumers needs to see the light of day.  The environment, companies, and consumers would all benefit from such transparency.  The only truly effective way to do this is not to de-regulate more, but de-statute or re-statute the Clean Air Act to simplify its mechanisms and make Congress more accountable for the environmental laws they set in motion.   I have re-written the Clean Air Act to do exactly this (see “Clean Air Act Reauthorization of 2017“)

And TCEQ can begin its own effort to address the growing size and complexity of its regulatory system.  It’s simpler than we think.   I formally presented a plan to the State of Texas (see “Petition for Rulemaking to Reduce Rulemaking”) and agreed to lead this effort as a TCEQ commissioner.  Although I am no longer interested or willing to serve as a TCEQ commissioner because of other callings, I’m still eager and willing to help the people of Texas when they are ready.

The environmental and economic opportunities awaiting us in a simplified system are astonishing.  For a foretaste, see https://cleanairreform.org/about/.

With simplicity will come better transparency.  With transparency will come better accountability.  The more simple things are, the more everyone understands them.  The more everyone understands them, the better they can comply with them.  It’s that simple.

Jed Anderson is the editor of TexasEnvironmentalNews.com.  Mr. Anderson is a principal attorney with the AL Law Group–and a former attorney with Baker Botts and Vinson & Elkins and an Adjunct Professor of Law at the University of Houston Law School where he taught the Clean Air Act.  In addition to his legal practice, Mr. Anderson has become a national leader over the past 15 years and a hub for Clean Air Act reform efforts–writing articles, gathering people and ideas, speaking across the country, writing a book, helping to lead national efforts to transform the Act, and even himself re-writing the Act (for more information, see www.cleanairreform.org).