Pro-Polluter Bills Move Forward Despite Concerns; Budget Conferees Named
April was indeed the cruelest month (so far). It saw advances in bills that serve the interests of the oil and gas industry and Texas Chemical Council, despite legitimate concerns about their potential to undermine basic citizen and city rights.
SB 709/HB 1865
SB 709 by Sen. Fraser (R-Horseshoe Bay) passed the Texas Senate on a 21-10 vote. The bill, written and heavily supported by the Texas Chemical Council, impacts the contested case hearing process for most kinds of waste, wastewater, and air pollution permits. Here’s what’s wrong with the bill:
- The bill creates a presumption that the proposed permit and accompanying documents are all the proof needed from an applicant, thus essentially shifting the burden of proof in a contested case hearing to the protestants.
- The bill gives nearly full discretion to the TCEQ to determine who is an affected party, and thus eligible for party status.
- The bill limits the time for a contested case hearing to take place to be within 180 days and limits the protest only to issues raised during the initial comment period.
In short, the bill makes the contested case hearing process before a judge at the State Office of Administrative Hearings (SOAH) less impartial and fair, putting more power on the permit applicant and the TCEQ, who, though making the final decision on a permit, also serves as a party for the permit in the hearing itself.
Not everyone agreed with the bill. Senator Uresti (D-San Antonio) did negotiate a technical amendment on the bill to make clear that SOAH can extend the 180 days if issues arise and ultimately voted for the bill. However, other Senators were not satisfied and pressed for further changes. Senator Watson (D-Austin) repeatedly grilled Fraser about changes that Fraser claimed were being made to reflect a recent decision of the Third Court of Appeals on a case brought by the Sierra Club. Watson asked if the language was actually the same, pointing out that Fraser’s language went much further than the court decision. Fraser, for his part, essentially refused to answer the question, saying (ad nauseam) that the language had been “carefully crafted” to reflect the decision. Watson also pointed out, correctly, that the Appeals Court decision could be appealed to the Texas Supreme Court. In fact, Sierra Club has already let the Texas Supreme Court know that is our intention. Watson’s attempt to strike and amend certain parts of the bill failed, however.
For his part, Sen. West (D-Dallas) pointed out the changes in the bill, that essentially would shift the burden of proof and pit the protestant against not only the applicant but the agency, were unprecedented and should be removed. Again, Fraser refused to acknowledge the criticism, saying the bill did not change fundamentally the role of the agency or burden of proof. West then withdrew his proposed amendment, acknowledging he did not have the votes.
Finally, Sen. Garcia (D-Houston) argued that since the bill limited the ability of citizens to protest permits, providing improved notice through a requirement to put all information about permits on the internet should be required. While Fraser ostensibly agreed to the concept, he basically said Garcia’s proposal came too “late” in the process and refused to support it. Unfortunately, Garcia’s proposal did not have enough votes to be included in the bill.
The bill was sent to the House, where a companion bill, HB 1865 by Rep. Geanie Morrison (R-Victoria), has been passed out of committee and is scheduled for a floor vote on April 30.
Sierra Club is working with our allies to stop or improve the bill with reasonable amendments to protect citizens, cities, and other entities to preserve their right to contest environmental permits. If you haven’t already, please call your Rep and ask them not to vote for these bills as they are currently written.
HB 40
The House overwhelmingly passed CSHB 40 by Rep. Drew Darby (R-San Angelo), the oil and gas state pre-emption bill – which severely restricts the ability of cities and other political subdivisions to limit oil and gas development within their boundaries.
The Texas Oil and Gas Association, as well as other oil and gas interests, heavily promoted the bill. Because Darby made some slight changes to the bill based on input from the Texas Municipal League (TML) – who agreed to be neutral on the bill – Darby continually insisted he would not take any amendments on the bill. And he stayed true to his word.
Amendments – all of them very reasonable to further clarify the rights of cities to regulate certain aspects of the oil and gas industry – were offered by Reps. Sylvester Turner (D-Houston), Eddie Lucio III (D-Brownsville), Helen Giddings (D-DeSoto), Mary Gonzalez (D-Clint), Elliott Naishtat (D-Austin), Nicole Collier (D-Fort Worth), and others. For example, Lucio III offered an amendment to protect the rights of cities to regulate oil and gas operations during a hurricane or emergency. It was rejected on a 90-50 vote.
Simply put, the oil and gas lobby had put the word out – no amendments.
For a good description of why the bill is so dangerous, see this blog by Scott Anderson at the Environmental Defense Fund. The bill now goes to the Senate, where Fraser is scheduled to take it up, along with its companion, SB 1165. Sierra Club is urging members to contact your city and let them know that the deal made by TML is not a good deal for anyone. HB 40 is scheduled to be taken up by the Senate Committee on Natural Resources and Economic Development on April 30.
SB 931
The Senate also passed SB 931, Fraser’s bill to repeal the Renewable Portfolio Standard (RPS), on a 21-10 vote. While Texas has already met its 2025 RPS goals through large-scale wind development, getting rid of the RPS ten years early would have financial consequences for wind and solar developers, and might also impact our state’s ability to cost-effectively meet upcoming clean air standards. The bill has been received in the House but not yet referred to committee as of this writing. Sierra Club is urging the House to let the bill die, or amend it to reaffirm the 2025 date.
HB 1736
Sierra Club has some concerns with HB 1736, which would undermine the process for adopting new energy efficient building codes both statewide and locally. We did see some improvements but not enough for us to support the bill. Working with many stakeholders and Villalba’s office, the bill was improved in committee and passed to the Local and Consent Calendar. While the bill is much improved – it would adopt the 2015 International Residential Code statewide in 2016, but allow a more flexible compliance path for homebuilders until the 2021 Code is adopted – certain issues were not fixed.
- It is not clear whether the September 2016 adoption in the bill would be immediately effective.
- It is not clear whether the flexible path would continue even if the state were later to adopt a later edition of the code.
- Most importantly, the bill allows local amendments to the codes, but it is not clear if they can adopt amendments that would make the code weaker, rather than stronger.
Without these changes, Sierra Club is working to slow down the bill until these issues are addressed. HB 1736 is scheduled for a floor vote on the Local and Consent Calendar on April 30.
Not all the news is bad
Some good bills are moving, such as SB 991, which would require the General Land Office and Texas Water Development Board to study the potential to combine water desalination with renewable energy. Authored by Sen. Rodriguez (D-El Paso), it sailed through the Senate on a 30-0 vote.
HB 14, which would extend the Texas Emissions Reduction Plan (aka, TERP) through 2025, moved through the committee.
Legislation to give more flexibility to spend the sporting goods sales tax for the Texas Parks and Wildlife Department – HB 300 and SB 1366 – are both moving through the legislative process. HB 300 is being taken up on the House floor on April 29, and SB 1366 has been voted out of the Senate.
And then there is the budget, the only bill that must pass…
HB 1
The budget bill has passed both the House and Senate but, as is always the case, the Senate and House budgets are different. Thus, both the House and Senate named their “Conferees” for the budget. The House named Reps:
- John Otto (R-Dayton)
- Sylvester Turner (D-Houston)
- Larry Gonzales (R-Round Rock)
- Trent Ashby (R-Lufkin)
- Sarah Davis (R-West University Place).
The Senate named:
- Chairman Jane Nelson (R-Flower Mound)
- “Chuy” Hinojosa (D-McAllen)
- Charles Schwertner (R-Georgetown)
- Joan Huffman (R-Houston)
- Lois Kolkhorst (R-Brenham).
The Conferees are scheduled to meet for the first time next week.
Sierra Club will be analyzing the two versions of budgets and making our recommendations on key agencies like the Railroad Commission of Texas, Texas Commission on Environmental Quality, and Texas Parks and Wildlife Department in the coming weeks.