Environmental Integrity Project Continues Hig Profile Texas Activity

The Environmental Integrity Project (“EIP”), a self-described “watchdog organization that advocates for effective enforcement of environmental laws,” has issued a report and filed five lawsuits regarding environmental issues in Texas, all in the month of July.  Groups such as EIP have become more active, and better funded, since the election of President Trump and his appointment of Scott Pruitt as EPA Administrator.

Report Blasts TCEQ on Enforcement

On July 7, 2017 EIP issued “Breakdowns in Enforcement,” which is highly critical of the State of Texas and the Texas Commission on Environmental Quality (“TCEQ”).  For example, the report states: “The State of Texas’s unwillingness to pursue enforcement actions that would significantly and consistently punish companies for illegal pollution erodes public confidence, while at the same time providing no incentive for polluters to clean up.”

Focus on Upset Events

The report largely focuses on emissions resulting from malfunctions or maintenance, similar to the focus of the recent Texas Tribune article discussed in my last Alert.

It says that “Texas claims primary responsibility for enforcing antipollution laws, but itself rarely takes action against companies for allowing dangerous amounts of soot, sulfur dioxide, benzene and other pollutants to escape from plants during what industry calls ‘upset’ events.”  The report claims that a review of state records by EIP showed that “the state imposed penalties on less than 3 percent of the illegal pollution releases (588 out of 24,839) reported by companies during maintenance or malfunctions from 2011 through 2016, even though the incidents released more than 500 million pounds of air pollution.”

The report acknowledges that, since 2011, TCEQ has assessed administrative penalties of over $13.5 million for releases during “breakdowns and maintenance,” but claims that this represents only 3 cents per pound of pollution released. The report claims that this was far less than the economic benefit of the non-compliance, and further concludes: “Because administrative penalty orders issued by the state do not outweigh the economic benefit of foregoing repairs and equipment upgrades necessary to prevent illegal releases of air pollution, Texas polluters have little incentive to take even modest steps to limit avoidable pollution from malfunctions and maintenance events.”

For a copy of EIP’s report click here.

Lawsuits Challenging EPA Action in Approving Five Texas Air Permits

In addition to issuing the highly critical report, EIP has filed five lawsuits against EPA Administrator Scott Pruitt.  EIP asserts that the EPA wrongfully approved air permits issued by TCEQ.  These lawsuits rely on a citizen suit provision in the federal Clean Air Act, which allows citizens to sue the administrator when the EPA fails to perform a duty required by the Clean Air Act.

EPA’s Failure to Act on EIP’s Administrative Petitions

EIP’s suits complain that EPA must grant or deny, within a statutorily set time, administrative petitions that EIP filed.  The administrative petitions demand that the EPA object to five different air emission permits granted by TCEQ, because the permits are not consistent with the federal Clean Air Act.  The suits, filed in the U.S. District Court for the District of Columbia, request that the Court order the EPA to grant or deny EIP’s administrative petitions.

EIP probably does not expect the current EPA to grant its petitions.  If these suits force the EPA to formally deny them, EIP will no doubt initiate further legal proceedings, alleging that the denials violated the Clean Air Act.  At that point, EIP will seek substantive review of the permit terms, claiming that they are inconsistent with the Clean Air Act.

For EIP’s statement regarding the five lawsuits click here.

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