Credit: U.S. Environmental Protection Agency

A dozen Texas organizations filed a petition today calling on the U.S. Environmental Protection Agency to intervene in how Texas reviews air permits, saying the state’s process violates civil rights and illegally limits public participation. 

EPA regulations require states to consider how permits affect low-income communities and communities of color, which bear the brunt of air pollution. The Clean Air Act also requires that the public have certain opportunities to participate in the approval of permits for facilities that pollute their neighborhoods. 

The petition argues that the state agency responsible for protecting public health and the environment, the Texas Commission on Environmental Quality, or TCEQ, disregards these rules.

“Until EPA requires Texas to correct the deficiencies identified in this Petition, Texas will continue to perpetuate discriminatory practices and ignore input from the communities most harmed by air pollution,” a summary of the document says.  

The TCEQ declined to comment on the petition. The EPA did not immediately respond to requests for comment.

Erin Gaines, an attorney representing the organizations, said she is “cautiously optimistic” that the EPA will meet the petition’s demands. Part of her optimism is based on the Biden administration’s decision to make environmental justice a “top priority.” The TCEQ is also in the midst of a review process that happens every 12 years and can lead to changes within the agency based on reports and public comments. 

“The combination of this administration and their stated commitments, plus the TCEQ Sunset review process going on at the same time, gives this window of opportunity for EPA to actually ‘walk the walk’ of major commitments they’ve been saying,” said Gaines, a senior attorney for Earthjustice, a public-interest, environmental law firm.

The EPA is required to respond to petitions within a “reasonable time,” but the petitioners in this case have asked for an expedited response.

They include groups from areas including Houston, the Rio Grande Valley and El Paso. They argue that the 1964 Civil Rights Act and a 2021 executive order from President Biden require states to consider environmental justice when approving permits. 

The TCEQ has held that it does not consider race or socioeconomic status when issuing permits. In 2021, when the agency responded to a civil rights complaint about Oxbow Calcining dumping “dangerous” amounts of sulfur dioxide on a majority Black community in Port Arthur, it told the EPA that environmental-justice reviews were “resource-intensive.” The agency has the nation’s second-largest permitting program, topped only by the EPA.

The petition also asks the EPA to increase opportunities for public participation in Texas’ permitting program. Gaines said this is an integral part of environmental justice because it gives communities most affected by air pollution a meaningful role in the process. 

Petitioners want the TCEQ to: 

  • Make sure companies aren’t hiding information that should be made public under a “confidential” label.
  • Create new rules for a type of permit that allows companies to bypass public involvement, including creating a rule that would allow the public to comment on whether companies should be eligible for these streamlined permits. 
  • Allow more people to comment on permits at administrative hearings. Gaines said the agency typically only allows those living within a mile of a facility to participate, even though pollution’s effects can spread beyond that. 

Diane Wilson is the executive director of the San Antonio Bay Estuarine Waterkeeper, one of the groups petitioning the EPA. A fourth-generation fisherwoman and shrimper, Wilson said her organization ran into roadblocks when it tried to weigh in on a permit to expand a Max Midstream oil terminal on Lavaca Bay, about an hour and a half north of Corpus Christi. Wilson said dredging for the project could spread mercury from a Superfund site that has already poisoned part of the bay. Commercial fishermen, 90% of whom Wilson said are Latino, would be hit particularly hard. 

Wilson said members of her group filed multiple rounds of comment and repeatedly asked for an administrative hearing after Max Midstream applied for the permit in October 2020. 

But the TCEQ refused to hold a hearing, saying each requestor lived too far from the facility to be an “affected person.” The TCEQ issued the permit in April. 

“They do not care,” Wilson said. “Whether you are ruining an entire fishery on the Texas Gulf Coast and literally destroying towns, they do not care.”

Gaines said the organizations that are petitioning the EPA to intervene in the TCEQ’s permitting process are asking to meet with the EPA as soon as possible. 

“Communities who’ve been raising these issues for a long time should not have to wait years and years more to make these changes,” Gaines said.

This story was updated to include that the TCEQ declined to comment on the petition.