Over the past week and a half, the Texas Legislature’s biennial session has been defined by intraparty clashes and the impeachment of Texas Attorney General Ken Paxton. But beneath the flurry of controversies, a notable environmental regulation was passed into law.
For the first time since 2011, state lawmakers voted to increase the maximum daily fine amounts for pollution violations. Those penalties, which are assessed by the Texas Commission on Environmental Quality, or TCEQ, will now be as high as $40,000 per day for certain offenses — an increase from its previous maximum of $25,000 per day.
This enforcement boost was originally presented as one of several regulatory bills sponsored by state Rep. Penny Morales Shaw, a second-term Democrat from Houston who sits on the House Environmental Regulation Committee. It was later rolled into what is known as the TCEQ sunset bill, part of a formal process that evaluates the agency’s performance and incorporates suggested changes into legislation that extends the agency’s existence for another 12 years.
Morales Shaw saw the sunset bill as an opportunity to address some of the problems she read about in Public Health Watch’s 2022 investigation into Houston-area environmental justice efforts. That investigation and another recent Public Health Watch project showed that the TCEQ repeatedly ignores Clean Air Act violations and rarely assesses penalties for even the most egregious petrochemical polluters.
The increase in fines was “long overdue,” Morales Shaw said in an interview with Public Health Watch, “but it’s a testament to what can happen when media, community groups and lawmakers push for change — when you create a culture where the state has to begin listening.”
The oil, gas and chemical industries are among the biggest contributors to the Texas economy and collectively have donated more than $50 million to Gov. Greg Abbott, Lt. Gov. Dan Patrick and Paxton over the course of their political careers.
Adrian Shelley, who heads the Texas office of Public Citizen, a nonprofit advocacy group, said the fine increase Morales Shaw won was “objectively the most significant change” within the TCEQ sunset bill. The rest of the legislation focused on how the public interacts with the agency, priorities that Shelley said fall far short of what’s needed.
“Let’s just be blunt,” Shelley said. “There was never an appetite for real reform for the agency. The initial report [by the Texas Sunset Advisory Commission] introduced last summer made that clear.”
That report, produced in May 2022 by commission staff members who conducted the TCEQ’s 12-year review, questioned the agency’s ability to fulfill its mission statement of protecting Texas’ “public health and natural resources consistent with sustainable economic development.” The findings were then discussed during a public hearing run by the 12-member Sunset Commission, composed of 10 Texas lawmakers — eight Republicans and two Democrats — plus two “public members” with political ties to the GOP.
The report focused on issues like the TCEQ’s poorly constructed website and the need to modernize its archaic permitting process. It gave the agency high marks for “admirably administering its complex programs” while suggesting that the TCEQ’s poor reputation with the public stemmed from “a ‘not in my back yard’ perspective that merely wants to prevent industrial activity in their own communities.”
These suggestions significantly shaped the 2023 sunset bill, which Shelley said had “extraordinarily modest goals.”
“We have one shot at this process every 12 years,” he said. “This agency is in need of much more than a few technical fixes.”
Although Morales Shaw is pleased with her legislative victory, she’s worried about another piece of legislation that emerged during this session. On the same day the sunset bill was sent to the governor’s desk, the Legislature passed a related bill that will make it easier for the TCEQ to ignore citizen complaints about pollution and other environmental problems in their neighborhoods.
The bill’s loosely worded text grants the TCEQ leeway to avoid investigating environmental complaints if “there is not a reasonable probability that the commission can substantiate” them. The agency can also decline to act if citizens’ concerns are “repetitious or redundant of other complaints concerning the same site investigated in the preceding 12 months that were not substantiated by the commission.”
“This could cast a shadow over the things we’ve accomplished this session for Texans and our environment,” Morales Shaw said. “Rest assured, I’ll be monitoring it closely.”
David Leffler covers toxic chemical pollution and other environmental health issues for Public Health Watch. Reach him at dleffler@publichealthwatch.org. Follow him on Twitter at @DavidJLeffler.