History of LWVTX Action on Air Quality/Climate Change

History of LWVTX Action on Air Quality/Climate Change

1985-1989: In the 1985 legislature, the League supported requirements for the state to do periodic reviews of permits and to institute administrative penalties for industry violations of air quality guidelines. We worked in the 1987 session to maintain these gains. The League also intervened on behalf of the state in the suit brought against Texas by the Texas Association of Business regarding jury trial and administrative penalties. (In 1993, the Texas Supreme Court upheld the lower court's ruling in our favor, affirming the constitutionality of administrative penalties.) The League worked in the 1989 session in support of legislation that promoted the use of alternative fuels in fleets of vehicles such as school buses, taxicabs, and metropolitan transit systems.

1991-1993: In 1991, the League supported funding at adequate levels for the Texas Air Control Board and the necessary statutory authority to implement the FCAA in Texas. This legislation ultimately passed during the first special session as part of a reorganization of natural resources agencies. In the 1993 session, the League supported dedication of revenues from environmental fees, such as those required of air polluters, to environmental regulatory and remedial programs. We also successfully opposed legislation that would have exempted agriculture operations from all state air pollution control requirements. Also adopted in 1993 were legislative changes required to bring Texas clean air programs into compliance with regulations adopted by the U.S. Environmental Protection Agency to implement the 1990 FCAA amendments. Despite League opposition, the 1993 session repealed the requirement that school buses convert to alternative fuels; conversion of school buses is now purely voluntary.

1995: Though environmental protection was a priority for LWV-TX in the 74th Legislature, an anti-regulatory mood prevailed. A League-opposed measure that broadens the definition of alternative fuels to include petroleum fuels passed and signed into law. In addition, despite opposition from the League and environmental groups, the statewide air emissions testing program was scuttled. Centralized testing was abandoned in favor of returning to the old system of tailpipe testing that is done at the time of the annual safety sticker inspection. Known as the Interim Texas Plan, the program will be in effect while the governor, through the Texas Natural Resource Conservation Commission (TNRCC), negotiates a program with the EPA. The new program will be designed to show that Texas meets the requirements of the Clean Air Act while at the same time administers a program of maximum convenience. The League considers these actions to be a major setback to efforts to achieve cleaner air for polluted areas of the state.

1997: The League was unable to support any of the bills concerning air quality that passed during this legislative session. One law authorized TNRCC to exempt a permit applicant from meeting pollution control requirements as long as the exemption is consistent with federal law and is at least as protective as the usual standard. Another bill weakened previously enacted laws that required a significant percentage of the vehicle fleets of state and local government agencies, mass transit authorities, and school districts to use alternative fuels. A third bill allowed grandfathered facilities from the 70's to continue to receive exemptions from obtaining air pollution control permits for new construction and modification permits. The League did not support a provision which was added requiring TNRCC to develop a voluntary emissions reduction plan for these facilities, which could provide the opportunity for interested parties to address the issue of bringing grandfathered facilities into permitted status. The good news is that several other objectionable air pollution bills failed passage.

1999: As in the 75th legislative session, natural resources was one of our legislative priorities: advocacy to promote funding and policy initiatives supporting environmental protection and public participation. In 1999 the legislature revisited the issue of "grandfathered" facilities, those facilities that were exempted from having to obtain air pollution control permits as they were in operation prior to implementation of the Clean Air Act in 1970.

Believing that thirty years is long enough, LWV-TX worked with a broad coalition to require that all air-polluting facilities be required to comply with laws protecting public health by a certain date. A House bill would have set a deadline to require facilities to be permitted, would have required the use of best available technology, and would have ended the volume discount for polluters that only had to pay fees on the first 4000 tons of emissions. However, what passed was a bill implementing the governor's voluntary program for moving grandfathered polluters into the air control permitting process.

The greatest success in cleaning up Texas air came through the electric deregulation/ restructuring bill that was passed and signed into law. Although the League does not have a position on electric deregulation, LWV-TX testified before the Senate and House committees urging them to consider (in the legislation) the importance of public participation and education, the impact on public health and the environment, the use and conservation of energy, and the development of renewable energy resources.

Language in this bill requires about 100 grandfathered power plants to reduce emissions by 50 percent. With that provision, the exemption loophole was removed from roughly 30 percent of the state's total grandfathered facilities. Together the two bills will ensure that 60 percent of the annual emissions by grandfathered plants, or about 540,000 tons of air pollutants, will now have to begin to meet clean air standards. This stands as the biggest win for the environment this session.

2001: The 77th session was the best in a decade for air quality. Important air quality bills that were strongly supported by the League and signed by the governor included the TNRCC Sunset/Reauthorization bill that ended the Grandfather Loophole. After four years of sustained work by environmental and public interest groups, including LWV-TX, the legislature finally ended the 30-year-old loophole for grandfathered plants, forcing Texas' oldest, dirtiest industrial plants to meet modern clean air standards. The law defined new standards for "upset emissions" of pollution, required that all emissions be reported within 24 hours, made the source come up with a corrective action plan, and provided penalties.

A large setback came when the legislature failed to remove the fee cap or volume discount collected under the Clean Air Act on air emissions above 4,000 tons. The League, along with our coalition partners, lobbied hard on this issue.

In another major victory for cleaner air in Texas, the Texas Emissions Reduction Program provided three types of incentive programs: rebates to consumers for the purchase of low- emission and alternative fuel vehicles; incentives to use more fuel-efficient building materials and appliances; and assistance to companies that agree to retrofit or replace high polluting diesel engines. Another bill expanded vehicle emissions inspection and maintenance requirements to counties beyond the one specified by federal requirement. LWV-TX supports a regional approach to solving air quality problems.

Other legislation establishes the Clean Coal Technology Council, requires TNRCC to suspend operations for a rock crusher or cement batch plant found to be operating without a permit, allows TNRCC to authorize emissions reductions achieved outside the United States to satisfy emission reduction requirement in international border issues, allows TNRCC to waive public notice and hearing requirements under certain conditions during construction or modification of a facility. In a loss for the environment, the legislature enacted a provision that prevents TNRCC from requiring petroleum marketers to sell cleaner grades of motor fuels in Texas markets.

2003: In a session in which environmental protection was rolled back dramatically, funding the Texas Emissions Reduction Program (TERP) was a rare positive for Texans. Although TERP was adopted by the 2001 Legislature and signed into law, a court in 2002 ruled the main funding mechanism unconstitutional. Without the 16.3 tons of emissions reductions per day in the Dallas-Fort Worth area and 18.9 tons per day in the Houston area, last year the EPA threatened to reject the state's urban smog strategies (SIP). So the legislature was under pressure to find the money to fund the program.

Last minute action by both the legislature and the Governor prevented federal intervention by funding a program to replace dirty, old diesel-powered construction equipment. Consistent with the prevailing mood of legislators regarding public health and the environment, a state program on low-sulfur diesel fuel was replaced by less stringent federal rules that could increase pollution by 6 tons per day statewide. The new law also eliminated the program of rebates to consumers for the purchase of low-emission and alternative fuel vehicles.

As passed, TERP provides assistance to companies that agree to retrofit or replace high-polluting diesel engines and pays for research into new clean air technologies. To pay for it, the plan raises vehicle title transfer fees Texans pay when buying new cars and adds surcharges for on- and off-road diesel vehicles and equipment.

Another LWV-TX supported bill that passed allows areas with early action compacts with the EPA to establish motor vehicle inspection and maintenance programs as an air control strategy. Formerly only areas designated non-attainment were allowed to have I&M programs and other areas were prohibited.

Despite the budget shortfall, the legislature took no action to raise or remove the cap on the air emissions fee. They also failed to prohibit the use of hazardous waste as a fuel in cement plants. LWV-TX supports efforts to force polluters to pay for all emissions and to tighten the regulation of cement kilns, as the current permits are inadequate to protect air quality.

2005: The quality of the air in Texas was a low priority for the 79th Legislature. No significant piece of clean-air legislation passed, although many areas of the state face severe air-pollution problems. In fact, the Legislature worked hard to cut the Texas Emissions Reduction Program, or TERP, which since 2001 has provided hundreds of millions of dollars in grants to help companies replace older, dirtier diesel-powered construction equipment. Off-road equipment such as bulldozers and cranes contribute a significant portion of the state's pollution. The Legislature even proposed cutting in half the fund that helps low-income motorists repair vehicles that fail the annual emissions test required in non-attainment areas of the state, but restored that fund to current levels at the end.

The enactment of TERP in 2001, an economic incentive program to reduce air pollution instead of punishing polluters, was hailed as a model for the nation and was crucial to gaining EPA approval for State Implementation Plans in Dallas-Fort Worth and Houston-Galveston Area. As a compromise, that Legislature did not restrict use of heavy construction equipment during the summer smog season nor did it impose a requirement for faster replacement of old, high polluting diesel engines by providing funding through TERP for voluntary replacement by diesel-dependent industries.

The reason given was the budget constraints. But a proposal on raising operating permit fees from the current cap of 4,000 tons per day (no matter how much air pollution is emitted) to 8,000 tons per day never was considered. Proposals requiring TCEQ to make the amount of a penalty for air or water pollution at least as much as the value of any economic benefit gained by the polluter through the violation had little consideration. Both these would have increased revenue and would have made it more beneficial to business to prevent pollution.

Also, unfortunately, the health of residents living near industrial plants had low priority. A proposal that would have required the state to develop enforceable health-based pollution standards to protect residents living near industrial plants choked legislators. Proposals to monitor and control toxic air emissions near those plants, along with requiring consideration of cumulative effects of pollution, went nowhere.

Ongoing action in the air quality portfolio involves cement batch plants in Ellis County. While these plants contribute half the industrial pollution in North Texas, they were not included in the Dallas-Fort Worth (DFW) non-attainment area under the old one-hour standard. Their permits allow them to emit more pollution than other industrial plants in Texas. When the EPA designated non-attainment areas under the new eight-hour standards in 2004, they included Ellis County in the Dallas-Fort Worth area. One plant had a permit change request under review to turn off the scrubbers as it costs them too much to operate them at their desired profit levels. That was not approved before the EPA designation, so the law does not allow them to cite economic disincentive. We gave input to include Ellis County in the DFW non-attainment area as well as to request denial of this permit change.

Border Issues: The League followed a number of issues that were unique and/or critical to the border region. Many of the bills were directed at vehicular traffic, electronic and clearance checks, coordination of activities between various government agencies, and the review and development of road projects.

2007: Many bills were filed in the Legislature concerning air quality. However, only two passed and those were introduced by Senator Averitt, the Senate Natural Resources Committee Chairman. The first updated the Texas Emissions Reduction Plan (TERP) and the Low-Income Vehicle Repair Assistance Program (LIRAP.) These programs were both funded.

The second bill required that not only should a pre-construction permit be reviewed every ten years, it must also be reviewed during the permit amendment process--a great step forward. The League testified many times on the various bills that were introduced, including many that did not pass. These include the "toxic hotspots" bills, fence-line monitoring, California standards for cars and light trucks, establishing an air pollutant watch list, and a clean school bus bill.

2009: Once again, many bills were introduced in the Legislature regarding air quality. Many were also introduced regarding climate change. Only three passed, however. Senator Averitt, chairman of the Senate Natural Resources Committee, introduced an omnibus bill which included air quality and climate change. Unfortunately, this bill did not pass, though parts of it were added to another bill which did pass and was signed by the governor. Those parts which were added include the TERP extension through August 31, 2019 (Texas Emissions Reduction Plan), a requirement that the Department of Agriculture, TCEQ, PUC and RRC collaborate in the federal government process for developing federal greenhouse gas reporting requirements and the federal greenhouse gas registry requirements, and a program for new technologies for emissions control which requires "best available control technology" as defined by the federal Clean Air Act instead of TCEQ! (A major gain.) NOT included in the floor amendment were building energy codes, idling of motor vehicles, maximum weight for vehicles with idle reduction systems, housing partnership program rebates and an online emissions database.

A bill by Senator Watson passed relating to "no regrets" greenhouse gas emissions reduction strategies to be prepared by TCEQ by December 31, 2009. The third bill that passed was by Senator Gallegos. It requires a permit applicant or the applicant's designated representative to attend a public meeting on the permit application. So they can't just "skip out!" We also prepared testimony for several bills that dealt with cement kilns. Regrettably, none passed.

2011: While much of our time was spent fighting off "bad" bills in the 82nd Legislature, we did have a number of successes--primarily the passage of the Sunset Bill for the Texas Commission on Environmental Quality (TCEQ.) Changes to TCEQ include the following: TCEQ is to develop and implement a policy for negotiated rulemaking and alternative dispute resolution

  • The Executive Director is charged with making sure that the agency is responsive to environmental and citizens' concerns, including environmental quality and consumer protection. This was formerly under the purview of the Public Interest Council
  • The Public Interest Council is to ensure that the TCEQ promotes the public interest; however, the primary duty of the office is to represent the public interest as a party to matters before the TCEQ
  • The TCEQ by rule shall develop standards for evaluating and using compliance history that ensures consistency. However, the compliance history shall not exceed one year from the date of issuance of each notice of violation. In addition, compliance history is to be classified as "satisfactory, unsatisfactory or above satisfactory"
  • Fees are changed in the Health and Safety Code from not to exceed $2,500 per day to "not to exceed $5,000 per day"
  • All other violations are changed from not to exceed $10,000 per day to "not to exceed $25,000 per day for each violation"
  • The commission is to develop a policy to prevent regulated entities from systematically avoiding compliance through the use of supplemental environmental projects.

In addition, Rep. Howard's bill passed which states that a person commits a Class C misdemeanor if that person violates a rule set by TCEQ relating to idling limitations. Rep. Burnam's bill adds electric vehicles and natural gas vehicles to vehicles covered by the low- income vehicle retirement program (LIRAP.)

With regard to climate change, we worked hard opposing Rep. Hancock's bill--which was a Concurrent Resolution urging Congress to prevent the Environmental Protection Agency from regulating greenhouse gases from stationary sources. And it failed! Another bill which failed was by Senator Hancock and would have allowed Texas to participate in a Regional Air Quality Compact with one or several states, thus avoiding EPA's jurisdiction. Needless to say, we opposed this bill. In addition, Rep. Craddick's bill allowing oil and gas facilities to have reduced permit requirements failed.

In addition, we prepared testimony which was presented to EPA on the Plan for Texas under the Prevention of Significant Deterioration Rule, the proposed EPA ozone rules, and the proposed rules on New Source Performance Standards and National Emissions Standards for Hazardous Air Pollutants for the oil and gas industry, including fracking. We also encouraged local leagues to become involved in the Clean Air Promise, a campaign of the LWV-US.

2013: Of the 26 bills we watched closely, five bills that we supported passed, and nine bills that we opposed didn't pass. That's 14 of 26, more than half + a real plus for our environment! The most important bills that passed were the re-writing of the legislation regarding the Texas Commission on Environmental Quality (TCEQ), more funding for the Texas Emissions Reduction Plan (TERP), and encouraging the capture and utilization of carbon dioxide for use in enhanced oil recovery.

The important bills that passed included:

  • HB 2446 (Crownover) SUPPORT relates to the qualifications of electric generation projects designed to encourage the capture and utilization of carbon dioxide for use in enhanced oil recovery. We registered for this bill; it passed and was signed by the governor.
  • HB 2859 (Harless) SUPPORT increases the funding for the Low Income Repair and Replacement Assistance Program (LIRAP) from $5 million to $10 million. We registered in favor of the bill; it passed and was signed by the governor.
  • HB 3658 (Reynolds) SUPPORT is a rewrite of the Texas Emissions Reduction Plan (TERP) and brings together a number of programs funded by TERP. Testimony was presented to Environmental Affairs Committee in support of the bill. Attention then turned to the Senate companion,
  • SB 1727 (Deuell), which passed and was signed by the governor.
  • SB 1 (Williams) WATCH. We presented testimony to the Senate Finance Committee commending them for raising funds for the Texas Emissions Reduction Plan (TERP) and requesting that they add more funds to the Clean Water account, as well as to the Enforcement and Compliance account. We encouraged the Committee to increase TERP funding even more. The Committee Substitute increased the funding for TERP from $65,163,876 to $90,759,950. The final appropriation for TERP was a compromise between the House recommendation and the Senate -- $77,596,164 per year. The governor signed SB 1 on June 14, making a number of line-item vetoes.

Major bills we opposed included:

  • HB 147 (Burkett) OPPOSE relates to changes in environmental regulations and examination of rules to be added to a fiscal note.
  • HB 147 failed to receive an affirmative vote in committee. LWV-TX registered against this bill.
  • HB 569 (White) OPPOSE relates to a study of the stringency of state environmental standards. If any are more stringent than required, a report is to be made to the governor, lieutenant governor, speaker of the house and others. The bill was left pending in committee. We registered in opposition to the bill.
  • HB 788 (Smith) OPPOSE relates to regulation by the TCEQ of greenhouse gas emissions. LWV-TX registered in support of this bill as it was originally written. However, it was amended in such a way that we could no longer support it. The bill now indicates that it is not subject to contested case hearings and that fees for exceeding emissions of greenhouse gases are limited to the cost of imposing the fee. We submitted testimony opposing the bill unless changed. Unfortunately, the governor signed the bill.
  • HB 1714 (Smith) OPPOSE relates to the discontinuance of the TCEQ`s compliance history program. Fortunately, it did not pass.
  • HB 2949 (Harper-Brown) OPPOSE relates to a performance-based program for permits issued by TCEQ. There was much room for mischief in this bill. We registered against the bill. It was referred to Environmental Regulation and died in committee.
  • SB 467 (Hegar) OPPOSE is described as "very similar" to HB 147 by Burkett and relates to the regulatory analysis of rules proposed by the TCEQ and to adding the cost of the rules to the fiscal note. It was referred to Environmental Regulation and failed to receive an affirmative vote in committee.
  • HB 147 (above) was left pending.

2015 Air Quality: Successes were important this legislative session as we were, as always, in defensive mode.

The following bills, are those that we opposed and did not pass. They ranged from regulatory changes to repealing both TERP and LIRAP.

  • HB 190 required a regulatory analysis of rules proposed by TCEQ. Fortunately, it died in committee.
  • HB 624 reduced the funding going to TERP. It died in the transportation committee.
  • HB 1113 required additional regulatory requirements to achieve standing in a contested case hearing conducted by TCEQ. It passed the House, but went no further. 
  • HB 1247 required the complainant in a case hearing of TCEQ to provide proof of his/her allegations. Fortunately, this one, as well, died in committee.
  • SB 8 would do away with the franchise tax, some of which goes to TERP. It, too, died too.
  • SB 321 required a reduction in monthly transfers to TERP from the state highway fund. It died in Calendars.
  • SB 1685 would repeal both TERP and LIRAP. It died in the Natural Resources & Economic Development Committee.
  • SB 1849 reduced the amount sent to TERP from title fees. It died in the Finance Committee.

Climate Change: Few legislators were interested in climate change. However, one bill passed and another introduced that will continue. Representative Farrar introduced HB 706, which allows an exemption from ad valorem taxation of property on which a solar or wind-powered energy device is installed or constructed. Representative Anchia introduced HB 2078 establishing a Global Climate Change Commission to study the impact of climate change in Texas from a global perspective. We gave testimony supporting this bill, including a definition of greenhouse gases which Representative Anchia said was the best definition he had heard. His goal is to inform his committee and others about the importance of climate change. He intends to speak to every member of the legislature about the growing impact of climate change on the earth.

2017. Air quality. The LWVTX supported HB 2003 (Zerwas) that relates to money used by certain counties for low-income vehicle repair assistance, retrofit, and accelerated vehicle repair assistance programs; and local initiative air quality projects. Left pending in the Senate Natural Resources & Development Committee.

Climate change bills supported by the LWVTX that did not pass.

  • HB 773 (E. Johnson): Relating to information on projected changes in weather, water availability, and climate variability in strategic plans of certain state agencies. Died in House State Affairs Committee.
  • HB 445 (Frank): Relating to ad valorem tax incentives for wind energy. Died in Chamber.
  • HB 1351 (Wray): Prohibition of local motor fuel taxes on compressed natural gas and liquid natural gas. Died in Chamber.
  • HB 2212 (Stephens): Relating to weight limitations for natural gas motor vehicles. Died in House Transportation Committee.