Letter to Gov. Abbott from TX Environmental Groups on Bill Limiting Texans’ Ability to Protect Their Property, Health

May 15, 2015
Catherine Ittner, (512) 691-3458, cittner@edf.org

Dear Governor Abbott,

We are proud Texas likes to do things its own way. When Congress passed the Clean Air Act (CAA) and Clean Water Act (CWA) many decades ago, they included provisions that would allow the Environmental Protection Agency (EPA) to delegate administration of the related programs and regulations. Naturally, Texas applied for and received the right from EPA to manage the environmental permitting processes related to the CAA and CWA. A key component, though, was the obligation of states to meet the minimum requirements set by delegation of the federal rules, designed to ensure the safety and health of each state’s citizens.

We are very disappointed about the recent Senate Bill (SB) 709 by Senator Troy Fraser because it would put Texans’ health at risk for the sake of industry, all to solve a problem that does not exist. In addition, this bill puts the State of Texas at risk of losing EPA’s authorization to administer these permitting programs. If we want to protect the health of future generations of Texans, as well as Texas to remain in control of our environmental permitting programs, you must veto this bill.

Whether run by the federal or state government, there is one thing both the CCA and CWA are clear on: Every Texas citizen must have the opportunity to participate and voice concerns regarding proposed permits – and for good reason. Large industrial projects or facilities requiring an environmental permit have huge potential to pollute our air and water, making our homes less-safe places to live. Healthy people are the heart of any healthy state and economy, but SB 709 substantially alters and limits the public’s ability to adequately participate in the permitting process in a fully-informed manner. Signing this bill into law signals Texas values industry over the health of our children.

Texas prides itself on being a small-government state, one the uniquely values the rights of individuals. So, it is surprising to us the Legislature would further empower TCEQ and corporate multinationals at the expense of individual Texans. Under SB 709, once the preliminary decision is reached and the draft permit is issued, the penalty for failing to prove the safety of the application shifts from industries and the agency to regular citizens. The bill also introduces an unprecedented shift in the burden of coming forward with trial evidence, again transferring the responsibility from polluting companies to everyday citizens.

Further, an earlier version of SB 709 allowed a citizen to overcome the new “permit is good” presumption, if he or she proved “the draft permit, if issued, would not protect human health and safety, the environment, or physical property.” Disappointingly, that language has been stripped from the final version of the bill. If a citizen were able to prove there is potential harm, why would the State want to go ahead with the original presumption and maintain the validity of the permit?

The bill will also change who qualifies as an ‘affected person.’ As implemented by Texas, this means fewer people will have standing to participate in the Texas administrative process than is required under federal health-based laws.

Finally, SB 709 also dramatically shortens the time in which citizens may make their cases to TCEQ.

All of this spells very bad news for Texans. Shifting the “burden of proof” means it becomes the responsibility of citizens to prove the permit is not environmentally safe, as opposed to industry having to prove it is safe. Citizens will now be required to shoulder the burden of providing expensive experts or resources to which few people have access or funds. Worse yet, if the case is complicated and issues are unresolvable, the application is automatically approved in six months regardless of whether there are real and serious concerns about the threat to public health. As the final insult, this bill increases the risk that a citizen could prove the draft permit does not protect human health and safety, the environment, or physical property, but TCEQ would still issue the permit.

Claims that the current process is too difficult or too slow or unfair for industry is not borne out of the facts. This change in the process will result in less well-reviewed permits and weaker protection in permits. This will result in far more pollution and more Texans sickened by pollution sources because of an inadequate administrative process. We would note SB 709 only changes the administrative process for polluters and not for other types of permits.

An unintended consequence of SB 709 is its dramatic negative impact on rural Texans and Texans who live in unincorporated areas of counties. The effect of SB 709 goes far beyond the industrial air and water permits of the petro-chemical companies, manufacturers, and their trade associations and the special interest lobby most vocally in support of this bill. The bill also covers waste cases and non-industrial water cases for permits on landfills, waste transfer stations, non-oil and gas related waste disposal wells, rock crushing operations, and wastewater discharge permits for new subdivisions. SB 709 leaves rural Texans at a significant disadvantage to protect their property and contribute meaningful input on the permit applications, prompting Republican officials, particularly in the House, to speak out and vote against the bill.

Should this legislation be put into law, our attorneys believe Texas would no longer be in compliance with federal environmental laws and should therefore lose delegation. The EPA itself has expressed concerns in writing in a letter to Texas legislators. This could mean EPA would be forced to step in and administer these permit programs. We’ve already seen what happens when the Federal EPA issues permits in Texas. In 2010, when Texas was the only state that refused to meet new federal greenhouse gas emission rules, EPA became responsible for issuing those permits. Because of limited resources, EPA was slower to issue them. Economic development projects in Texas were delayed and, in some cases, completely canceled. Texas could repeat this mistake if SB 709 becomes law.

As Texas Governor, you can prevent this unfortunate outcome by vetoing this unwarranted and unnecessary legislation. Please veto SB 709 for the benefit of Texas citizens, now and for many generations to come.


Jim Marston, Regional Director of Environmental Defense Fund’s Texas Office

David Foster, State Director, Clean Water Action

Rick Lowerre, Executive Director, Caddo Institute

Luke Metzger, Executive Director, Environment Texas

Annalisa Peace, Executive Director, Greater Edwards Aquifer Alliance

Robin Schneider, Executive Director, Texas Campaign for the Environment

Adrian Shelley, Executive Director, Air Alliance Houston

Tom “Smitty” Smith, Director, Public Citizen’s Texas Office