Texas Supreme Court Restricts Power of Cities to Enforce Environmental Rules

The Texas Supreme Court struck down the attempt by the City of Houston to establish an independent enforcement mechanism for environmental permits and rules.  Current Texas law requires significant enforcement coordination between any local government and the Texas Commission on Environmental Quality (“TCEQ”).  In BCCA Appeal Group v City of Houston, the Court declared that cities cannot use their municipal courts to avoid coordinating with TCEQ.

Houston, the largest city in Texas, has many industrial facilities in or near it.  Houston enacted an ordinance that included a separate criminal enforcement mechanism using Houston’s municipal courts.  The Court struck down the enforcement provisions of that ordinance.  The Court also struck down an associated requirement that facilities register with and pay a fee to the City of Houston.

Houston’s ordinance attempted to incorporate large portions of current and future state environmental requirements.  While the Court said that merely incorporating current and future state requirements did not violate Texas law, the Court held that any enforcement mechanism must specifically include the requirements to coordinate with TCEQ.  Most notably, with rare exceptions, criminal enforcement in Texas of any environmental law, rule, or permit requires a pre-enforcement notice to TCEQ.  Texas law gives TCEQ 45 days to preclude criminal enforcement, either by determining no violation or by determining that administrative or civil remedies are appropriate.  Houston’s ordinance did not have these requirements.  (A single dissenting justice would have read the pre-enforcement notice/review requirements implicitly into the ordinance.)

TCEQ’s Pre-Enforcement Review of Criminal Cases is Mandatory.

Any ordinance purporting to allow criminal enforcement of environmental laws, rules, or permits must include the requirement to give TCEQ 45 days’ notice and an opportunity to disapprove.

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