Written by: Rachel Schade
Photo Provided by Dylan Baddour/Inside Climate News at https://www.texastribune.org/2023/07/30/texas-tceq-1-mile-rule-pollution-citizen-complaints/
In the hustle and bustle of our busy modern society, there remains one silent and often ignored threat: our own air quality. As we strive to meet the growing demands of our nation, air pollution has become a widespread factor plaguing our daily lives, particularly for minority communities in North Texas. The threat posed by air pollution in North Texas can no longer be overlooked. Yet, despite this need for action, the Texas Commission on Environmental Quality (“TCEQ”) continues to remain ineffective.
The oil and gas industry in Texas makes up 42% of the United States’ oil production and 27% of its natural gas production.[1] Texas is a major contributor to the industry; the state alone reported 21,769 incidents that produced 409,575 tons of air pollution from September 2016 until September 2022.[2] But why should the public care? Industrial upsets or unexpected emissions events triggered by accidents, shutdowns, and the like pose an extreme risk to public health that is felt throughout the state of Texas and is not permitted by the TCEQ.[3]
Despite this increase in accidental occurrences, the TCEQ declines to use its legal authority to regulate air pollution in the state and punish repeat offenders.[4] As the amount of emissions from these industries rises, there is a growing concern of cancer risk for the 82 Texas counties, especially the 2.3 million Texans living within half of mile from an active gas or oil operation site.[5] Children and the elderly are especially at risk. Over 900 schools in Texas are located within .5 miles of oil and gas operations and children suffer almost 145,000 asthma attacks per year.[6] Additionally, a 2019 study conducted by the Environmental Integrity Project and Environment Texas estimated that these emissions are the cause of 42 deaths per year for those 65 and older.[7] Latino communities are particularly vulnerable.[8]
Nonetheless, TCEQ’s failure to act does not make it immune from legal intervention from other sources. The Clean Air Act directs the Environmental Protection Agency to establish National Ambient Air Quality Standards (NAAQS), setting “maximum permissible concentrations of air posing a risk to public health and safety.[9] The EPA has been provided the authority to establish the limits of criteria pollutants, which include anything from sulfur dioxide to carbon monoxide.[10] The EPA is further required to designate regions of the United States as meeting “attainment,” “non-attainment,” or “unclassifiable” based on the adherence to NAAQS[11]
The EPA classification system created a dispute regarding two Texan counties, Rusk and Panola, home to the Luminant Generation Company, L.L.C. owned Martin Lake power plant, which was designated as nonattainment in 2021.[12] In State of Texas v. Environmental Protection Agency, the designation was deemed not erroneous, arbitrary, capricious, or unlawful by the Fifth Circuit, which upheld the EPA’s designation of the counties as “nonattainment” for sulfur dioxide emissions.[13]
State of Texas v. Environmental Protection Agency is just one of the many examples of judicial interference revolving around Texas air quality and pollution concerns in the past five years.[14] Further, it appears the court’s involvement in air quality matters in Texas is far from over. Recently, on March 13, 2024, a Texas woman filed an environmental complaint against TCEQ in the US District Court for the Western District of Texas.[15] Her claim alleges violations of the Resource & Recovery Act.[16] The complaint in Padilla v. Texas Commission on Environmental Quality is that the commission illegally regulates naturally occurring radioactive materials that are generated and released by the oil and gas industry in the state.[17] The plaintiff seeks declaratory and injunctive relief regarding the regulation of pollution emissions in the industry by the inactive TCEQ.[18] That case is currently progressing through the court system and awaiting an answer from TCEQ on the allegations.[19]
As the affected communities in Texas and the nation await the results of Padilla v. Texas Commission on Environmental Quality, advocacy for improved air quality remains of utmost importance. Texans can either hope for judicial or agency action through the EPA to address their growing health concerns.
[1] Texas State Energy Profile, Texas Profile, https://www.eia.gov/state/print.php?sid=TX.
[2] Report Documents Systemic Failure of Texas to Correct Repeat Offenders for Air Pollution Violations, Environmental Integrity Project (Mar. 23 2023), https://environmentalintegrity.org/news/systemic-failure-of-texas-to-correct-repeat-offenders-for-air-pollution-violations/.
[3] Id.
[4] Id.
[5] David McCabe & John Graham, Health risks in Texas from oil and Gas Industry Air Pollution, Clean Air Task Force (June 2017), https://www.catf.us/wp-content/uploads/2017/06/CATF_FactSheet_HealthRisksinTexas.pdf.
[6] Id.
[7] Report Documents Systemic Failure of Texas to Correct Repeat Offenders for Air Pollution Violations, supra note 2.
[8] Wendy Selene Pérez, Neglected and exposed: Toxic air lingers in a Texas Latino community, revealing failures in state’s Air Monitoring System, The Texas Tribune (Mar. 14, 2024), https://www.texastribune.org/2024/03/14/texas-air-monitoring-tceq-cloverleaf-houston-ship-channel/.
[9] 42 U.S.C. §§ 7408–7409.
[10] Id. § 7409; see California Air Resources Board, Criteria Air Pollutants, California Air Resources Board, https://ww2.arb.ca.gov/our-work/programs/criteria-air-pollutants#:~:text=Criteria%20air%20pollutants%20are%20air,5.
[11] 42 U.S.C. § 7407(d)(1)(A), (d)(1)(B)(i).
[12] See State of Texas v. Environmental Protection Agency, No. 17-60088 (5th Cir. 2024).
[13] See Id.
[14] See generally State Of Texas v. Intercontinental Terminals Company, LLC, 2019 WL 1332660 (State of Texas on behalf of the TCEQ seek injunctive relief, civil penalties, and attorney’s fees for violations of the Texas Clean Air Act against Intercontinental Terminals Company, LLC); State v. U.S. Envtl. Protec. Agency, 983 F.3d 826 (5th Cir. 2020) (dealt with the classification of one county as nonattainment and three as unclassifiable, where the court held that the EPA did not act arbitrarily when designating three counties as attainment/unclassifiable; and sufficiently articulated its reasons for designating three counties attainment/unclassifiable); Port Arthur Community Action Network v. Texas Comm’n on Envtl. Quality, 86 F.4th 653 (5th Cir. 2023) (Court of Appeals vacated and remanded the granting the emissions permit at issue due to TCEQ’s failure to adhere its own administrative policy, or applies a policy inconsistently).
[15] Padilla v. Texas Commission on Environmental Quality, Justia Dockets & Filings, https://dockets.justia.com/docket/texas/txwdce/7:2024cv00077/1172778749; Round up: No norm for TCQE, activist lawsuit claims; AUKUS Waste debate Exchange Monitor (2024), https://www.exchangemonitor.com/round-up-no-norm-for-tcqe-activist-lawsuit-claims-aukus-waste-debate/?printmode=1&failed_auth=U0NIQURFUkBEVVEuRURV.
[16] 42 U.S.C. § 6901.
[17] Round up: No norm for TCQE, activist lawsuit claims, supra note 15.
[18] Padilla v. Texas Commission on Environmental Quality, supra note 15.
[19] Padilla v. Texas Commission on Environmental Quality (7:24-CV-00077), Texas Western District Court, PacerMonitor Federal Court Case Tools, https://www.pacermonitor.com/public/case/52695216/Padilla_v_Texas_Commission_on_Environmental_Quality.