Photo: Al Braden Photography
How does one sum up 140 days of good and bad legislative ideas, all kinds of maneuvers, hundreds if not thousands of hours of staff time, volunteer engagement, calls and visits to legislators? Difficult. Impossible. But we start with this brief summary, and promise a more exhaustive “Legislative Scorecard,” in which we will literally grade your State Senators and State Representatives over the last months of legislative action and inaction.
Good outcomes
It might sound strange to start with bills that failed to pass (some of which are not strictly environmental), but that’s where we begin.
Several wrong-footed pieces of legislation were stopped in the House, including provisions that would have prohibited Texas cities from regulating workplace activities. Originally filed as SB 15 by Sen. Brandon Creighton, this anti-city anti-worker legislation was stopped in the Senate, only to reemerge as four separate bills sponsored by Creighton (SB 2485 through SB 2488) that would have put progressive city policy on workplace safety in their cross-hairs. Fortunately, those bills never made it to the House floor, dying a quick death in the Calendars Committee, and at least for two years, preserving the right of cities to look out for the health and safety of their residents, even if it might put some extra requirements on business.
Similarly, a widely panned “election integrity” bill - SB 9 by Sen. Bryan Hughes - that would have made it harder to vote - passed the Senate but then failed to get on the House Calendar in the final days of the session, and repeated attempts to add SB 9 language to other bills also failed. Why is this important? With 2020 elections promising to be contested throughout the state, making it harder to vote could influence outcomes that could -- speaking frankly -- influence future environmental policies.
Other bills that Sierra Club and our members fought against but did not pass included a crazy proposal by Rep. Kacal to put contested case hearings (where citizens or local governments oppose a permit for a new or amended facility that could pollute) at the Texas Commission on Environmental Quality (TCEQ) rather than at the independent State Office of Administrative Hearings (SOAH). Fortunately, HB 3114 failed to pass out of the House Committee on Calendars as we and our volunteers fought tirelessly to assure that TCEQ would not become judge, jury, and executioner of environmental permits.
We also successfully blocked the attempt by radioactive waste importer Waste Control Specialists to pass a bill that would double the amount of imported low-level radioactive waste while reducing fees and taxes (i.e. more waste, less revenues, less oversight) through keeping HB 2269 (Landgraf) and SB 1021 (Seliger) from ever making it to the Senate or House floors. However, as is often the case, a last minute floor amendment to an unrelated bill (SB 1804 by Kolkhorst which focused on domestic violence), put a portion of the bill -- delaying a surcharge on imported waste and reducing a gross receipts tax on other radioactive “compact” waste -- resulted in WCS being successful in getting some of what it wanted.
Who did that? Well, surprisingly it was Rep. Poncho Nevarez, who at the last minute, on third-reading snuck in the amendment on a domestic violence bill and described the amendment as having to do with economic incentives, but never bothering to tell his House colleagues it had to do with imported low-level radioactive waste. Given that this happened in the last days of the session, Sen. Kolkhorst did not want to risk having the whole domestic violence bill fail, so she did not try to go to conference committee to get it removed. We are still waiting for an explanation from Chair Nevarez as to why he carried the amendment in the first place!
Advances on clean air and park funding
Another bright spot came in the form of increased funding in the future for state parks and clean air programs at the TCEQ.
First, the budget bill earmarked all expected revenues from the state sales tax on sporting goods to the Texas Parks and Wildlife Department (93%) and Texas Historic Commission (7%). Moreover, the Senate and House passed legislation to assure that continues to happen in the future through passage of SB 26 (Kolkhorst) and SJR 24 (Kolkhorst), a constitutional amendment which would permanently dedicate the sales tax to the two agencies. With population growth and continued sales of sporting goods, the bill and proposed amendment -- if approved by voters this Fall -- promises a further commitment to our state parks and historic areas.
Similarly, the House and the Senate agreed to a last-day compromise on funding the Texas Emissions Reduction Plan (TERP), though the benefits won’t occur until 2021.
Under the provisions of HB 3745 (Rep. Cecil Bell Jr. and Sen. Birdwell), the revenues that support the TERP programs will continue until Texas meets its Federal Clean Air Act obligations to reduce ozone (smog) pollution. These revenue sources should generate about $250 million per year. The bill will also create a “trust fund” outside the normal budget process beginning in 2021 so that, starting that year, the TCEQ will be able to begin spending that amount of money each year largely through grants for cleaner vehicles. Thus, in essence, the House and Senate assured future funding of TERP though in the approved budget for 2020 and 2021 they only earmarked $77 million per year. The bill essentially gives the state extra money for budget certification purposes over the next two fiscal years in return for expanded funded after 2021 but overall is a big victory for clean air.
Separately, the Sierra Club was able to work with Sen. Jane Nelson and Rep. Oscar Longoria to add a measure to a good government reporting bill (SB 421) to add an amendment carried by Rep. Ron Reynolds that will continue energy use reporting by universities and political subdivisions that are located in non-attainment and near non-attainment areas. The amendment will ensure that those entities will continue to report their electric energy use to the State Energy Conservation Office for at least another seven years, as well as efforts to control energy use.
Flood control and post-Harvey recovery: more money but for what?
While it might be hard to follow, a total of five bills passed the Legislature that will allocate additional funds that could be used to help communities rebuild from Hurricane Harvey and other floods, and prepare for future storms. First, the House and Senate agreed to a “supplemental budget” bill (SB 500) that includes funding for rebuilding efforts related to schools, parks, and other local government efforts, as well as up to $1.7 billion for a variety of flood control projects.
Flood control is good right? Well, theoretically yes, but exactly what projects make sense and will lead to good sustainable projects is debatable. That’s where SB 7 (Sent. Creighton; House Sponsor Rep. Phelan), SB 8 (Sen. Perry; House Sponsor Rep. Phelan) and SB 6 (Kolkhorst) come in. SB 7 creates four separate funds at the Texas Water Development Board dealing with aspects of flood control, while SB 8 creates the process for a Statewide Flood Control Plan at the Texas Water Development Board, and SB 6 creates guidance and a process for local and statewide emergency management, including how to plan for all that future debris and clean-up.
The reason Sierra Club ended up supporting these pieces of legislation is because we were able to get language and assurances that the flood control projects and planning would include not just traditional flood control -- think dams and lots of concrete -- but nature-based and green infrastructure -- investing in green space, land use practices, riparian zones, and other means to prevent flooding.
This fall, voters will have a chance to weigh in on as HJR 4 (Phelan) created a constitutional amendment to set up two of the flood control funds.
Slight gains on better inspections and enforcement of municipal landfills and quarries
In part, because of actions taken through the budget (HB 1), a little bit more attention was paid to the issues of municipal landfills and quarries and rock crushers, though most major efforts at reform failed.
First, HB 1 includes eight new municipal landfill inspectors at TCEQ, whose sole job will be to inspect landfills, respond to complaints, and hopefully write “tickets” where municipal solid waste operators fail to obey the law. Second, two good pieces of legislation by Rep. Ed Thompson were passed into law, including one that will raise the application fee for solid waste permits so that taxpayers are footing less of the bill and to discourage fly-by-night operators (HB 1331), while another (HB 1435) will require TCEQ to actually visit a proposed site and verify information in its application before they approve a permit.
Similarly, HB 1 includes more money for inspections of quarries and “fly-overs” of such operations, and one bill (of literally dozens) HB 907 (Huberty) was approved. That bill requires that all aggregate facilities will be inspected at least once every two years during their first six years of inspections, allows “surprise” inspections, raises the annual fee on aggregate producers, and increases fines and penalties for facilities that don’t properly register with the Commission.
Other positives in the budget
There were some other positives in the budget bill in which Sierra Club played a role in our lobbying and advocacy efforts. First, in a major victory, we were able to get an additional $1.5 million for TCEQ for money related to mobile monitoring and related equipment that will allow the agency to respond more nimbly to future natural or human made disasters.
Second, as part of the Texas Parks and Wildlife Department’s budget, we were able to help secure the full request of $12.5 million for development of Palo Pinto State Park, west of Fort Worth near Strawn, Texas.
Similarly, the Railroad Commission of Texas (which of course regulates oil and gas) will get 22 more inspectors over the next two years, hopefully to regulate pipelines and oil and gas facilities better, while also securing more money to continue its IT upgrade, and additional funds to plug abandoned oil and gas wells.
Stalemate: renewable energy
While no “clean energy” bills were approved this session by the Texas Legislature, we did help defeat two proposals being promoted by the fossil fuel-funded Texas Public Policy Foundation that could have negatively affected the future development of wind energy.
We joined with our allies in the renewable energy industry to help stall a bill by Sen. Kelly Hancock (SB 2232), which would have required the Public Utility Commission to study the “ongoing effects that federal renewable energy subsidies have on the pricing, reliability, and efficiency of the electric power market in the ERCOT power region” and then make recommendations back to the legislature about how to fix it. If passed,the bill would have been used by fossil fuel interests to try and impose extra costs and hurdles on the further development of the wind industry.
Similarly, while the Sierra Club did not formally support HB 3143 (Rep. Murphy and Senate Sponsor Royce West), which extends tax abatement agreements for another 10 years, we worked with renewable companies to oppose proposed amendments on the Senate floor that would have effectively stripped wind projects from being able to use the same property tax abatements as the fossil fuel industry uses. That proposed amendment by Sen. Hall was defeated on a 21-10 vote in the final days of the legislative session.
Good water resources outcomes
Some good outcomes did occur related to water resources. First, Sierra Club supported and worked with Sen. Eddie Lucio and Rep. Mary Gonzalez to pass SB 2452 and SJR 79, which will expand and continue the “Economically Distressed Area Programs” at the Texas Water Development Board that helps bring water and wastewater services and good stormwater drainage to working Texans who meet certain income guidelines. The programs will be subject to a constitutional amendment in November that will allow up to an additional $200 million in bond funding.
Other good water bills sent to the Governor for his signature include HB 807 (Larson/Buckingham), which continues the surface water planning process for the State of Texas, HB 3339 by Rep. Dominguez and Sen. Creighton, which updates the water conservation plans and programs for the State of Texas; SB 942 (Sen. Johnson and Rep. Metcalf), which relates to the federal and state revolving water pollution loan fund; and HB 723 by Rep. Larson and Sen. Perry, which updates the water availability studies for Texas’s major rivers. While none of these bills were controversial, they are important advances in future water management for the State of Texas.
One bad bill was stopped due in part to efforts by the Sierra Club and our great volunteers, and an opportune “Point of Order” from new state representative Erin Zwiener. HB 3750 by Rep. John Keumpel and Sen. Charles Schwertner would have prevented cities from enforcing water quality ordinances and other related measures in their extrajurisdictional territories that were more stringent than federal or state standards. To make matters worse, a bad Senate bill, SB 422 by Sen. Donna Campbell, was added onto the bill on the Senate floor, which would have effectively prevented the City of San Antonio from enforcing any municipal ordinances in certain areas around San Antonio, including parts of its tree ordinance. However, Rep. Zwiener was able to bring a point of order that the Campbell amendment was not germane to the original bill, and the whole bill died when the point of order was sustained.
Bad outcomes
It is nice to start with the good, but unfortunately there was quite a bit of “bad” this session, although perhaps our efforts made outcomes less bad.
First, Rest in Peace LIRAP and LIP. The Low-Income Vehicle Repair and Replacement Vehicle Program and Local Initiative Programs are suspended for another two years. These programs -- supported by fees on automobiles in the Austin, Dallas, and Houston areas -- were intended to help those failing their vehicle emissions test with grant money with financial support either to fix up cars to meet the emission tests, or a grant to help defray the costs of a newer vehicle. Another similar program was used by local government to help enforce clean air laws on polluting vehicles.
The nearly $50 million per year initially proposed in the House version of the budget was cut out of the final budget, while separate bills to reform and continue the programs, notably SB 1070 by Sen. Watson (and a companion bill by Rep. Celia Israel) never made it to the Senate or House floors. (You may recall that Gov. Abbott has wanted to kill this program for years, having vetoed LIRAP funding last session).
Similarly, great bills by Rep. Israel and Sen. Menendez (SB 892) to make “coal” rolling - in which individuals mess with the emissions controls on diesel pick-up trucks to spit out black smoke full of dangerous air pollutants - a criminal offense, fell victim to a procedural trick by Rep. Stickland, who “talked” the bill to death on the local House calendar. Stickland also killed another bill by Sen. Menendez (SB 2070) and Rep. Genie Morrison (HB 3930) that would have better regulated grease and grit trap waste through a similar action in the last days of the session.
Oil and gas industry have their cake and eat it too!
Two dangerous pro-polluter bills did pass despite our best efforts (and yours). First, HB 2771 will require the TCEQ to seek “delegation” authority to allow oil and gas operators to seek permits to discharge their “produced” water into Texas’s surface water, i.e., rivers, streams, reservoirs, and bays. Currently, oil and gas companies must obtain a permit from both the Railroad Commission of Texas and the U.S. Environmental Protection Agency, and in practice, discharge permits for such wastewater have not been granted. HB 2771 (Lozano, Sen. Hughes Senate sponsor) will force TCEQ to come up with a program to allow such permits. The Sierra Club was able to work with Rep. John Turner in the House and Sen. Chuy Hinojosa to at least get the deadline pushed back to 2021 for seeking the authority to allow such discharge permits, giving the public more time to weigh in on what protections will need to be developed for such permits.
Second, in a bill which we have seen passed in other state houses throughout the country, the Texas Oil and Gas Association, Texas Pipeline Association, Texas Chemical Council, and other industry associations, used their incredible power and influence over the Texas Legislature to pass HB 3557 (Rep. Paddie, Senate sponsor Sen. Birdwell). This is the so-called “Critical Infrastructure Protection Act,” which in our view, could criminalize peaceful protests of pipelines, power plants, and chemical plants, including pipelines that have yet to be built. The bill is a reaction to many high-profile protests of current and future pipelines, notably the Dakota Access Pipeline and Standing Rock protests, but also protest camps in West Texas against the Trans-Pecos Pipeline.
While the Sierra Club, in alliance with many other conservation and indigenous rights organizations, as well as the American Civil Liberties Union, was able to lessen the severity of the bill compared to its initial version, the bill as finally passed would create a second degree felony for “damaging or destroying” so-called “critical” infrastructure punishable with up to 2 to 10 years in jail, and a state jail felony (up to two years in jail) for “impairing” or “interrupting” the operations of critical infrastructure. This provision could mean that advocates peacefully protesting construction of a pipeline by blocking a road for an hour could face up to two years in jail and a felony on their record, bringing into question future employment, or even the ability to vote. In addition, the bill creates huge fines (up to $500,000) for organizations found to have been involved in such activities, as well as civil and additional liabilities, such as damage and court costs.
While we are already seeing laws similar to this being challenged in other states, the intent is clearly to silence critics of the fossil fuel industry and make it hard to highlight the role these industries play in our climate crisis.
Privatizing surface water?
While the bill was promoted as helping to “solve” our water supply issues, HB 720 by Rep. Lyle Larson and sponsored in the Senate by Sen. Charles Perry would create a new and easier process for private or public entities to seek authorization to take “public” surface water resulting from storms and floods, and store it underground in aquifers, thus creating a “private” groundwater right. Might sound okay for those not closely engaged on water issues, except that groundwater would be authorized not by a local groundwater district but by the state, and would not be subject to the same notice, public participation, and contested case hearing provisions as surface water rights. Also, the economic and technical feasibility of capturing stormwater and storing it underground is suspect. Sierra Club opposed the legislation as a bad approach that could impact both instream and environmental flow needs, but our concerns fell on deaf ears. We will have to engage in future rulemaking to at least put some rails on this wide open legislation.
Missed opportunities
A number of good bills supported by the Sierra Club came close to passage, but fell just short, while other good bills will need much more support to get closer to passing in the next session..
First, there were a couple of good bills to raise our building code standards, and give local governments more authority to improve water and energy savings through new construction. HB 3810 (Rep. Paul; Sen. Buckingham Senate sponsor) would have raised the state’s residential code in cities to the 2012 International Residential Code (and allow them to adopt better codes if they chose). It passed the House, and was passed out of Senate committee, but unfortunately, the bill ran out of time when Lt. Governor Patrick refused to recognize Sen. Buckingham to bring up the bill on the final day to pass bills. Similarly, a more ambitious building codes bill, HB 4080 by Rep. Dominguez, would have allowed counties to approve and enforce building codes in much the same manner as cities do, but it never got out of committee despite having a positive hearing.
Second, two good clean energy bills, Sen. Kelly Hancock’s SB 1941 on energy storage, and Sen. José Menendez’s SB 2066 on distributed solar, passed out of the Senate, were passed out of House committees, but were never taken up on the House floor. Another good bill, SB 1981 by Sen. Birdwell, that would have created a statewide administrator for “Property Assessed Clean Energy (PACE) Districts” was taken up late in the process in the House, and did not have support in the House Committee on Energy Resources.
SB 1446 by Sen. Nathan Johnson had a similar fate. It would have required the TCEQ to come up with performance standards for above-ground petroleum storage tanks. It had a positive public hearing in the Senate Committee on Water and Rural Affairs. While the bill never got out of committee in large part due to industry opposition, Chair Charles Perry publicly announced his intention to make regulation of above-ground storage tanks an interim charge of the committee which could lead to future action.
At least that bill got a public hearing. Other great bills supported by the Sierra Club were never even granted a hearing. Bills (HB 225 by Rep. Reynolds and SB 1380 by Sen. Rodriguez) intended to study the issue of the vast amount of flaring of natural gas by the oil and gas industry and fugitive emissions did not even get a hearing, nor did good bills to assure that entities wishing to get state funding had good restrictions on outdoor watering use (SB 1379 by Sen. Rodriguez and HB 2957 by Rep. Zwiener).
Next steps
Now just because a bill passed the Senate and House doesn’t actually make it law. Governor Greg Abbott has until June 16 either to sign them into law, veto them, or take no action and allow them to become law. He can also veto budget provisions that he doesn’t like.
We are extremely grateful to all the Sierra Club members and supporters in Texas who took the time to email, call, text, and visit with their lawmakers in person this session. You are a growing force in Texas for the environment and its people, and we could not have been as effective as we were without your help. Together, let’s chart a course for success in the next session in 2021 and demand more from our state leaders. Stay tuned for ways to stay involved!