God's Steward at the TNRCC
In Barry McBee's Environment, Politics and Religion Mix
The first McBee says he wants to "do justice," but the second McBee seeks a more efficient government. In the name of efficiency, he has reformed the hearings process and denied individuals the right to contested case hearings (the equivalent of civil trials) before the TNRCC. This McBee suggests that, if "you are a landowner and feel that you have been injured, you have full access to the civil courts of this state."
Many environmentalists admit that they personally like McBee, and even that he is a better chairman than his predecessor, Ann Richards' appointee John Hall. Yet they also observe that under McBee, the TNRCC has become even more closely allied with industry than it was under Hall. The other difference between McBee and his predecessor, says one former TNRCC employee: "McBee is slicker."
Barry McBee doesn't look slick. Rail-thin, with a boyish face, he looks 10 years younger than his actual age, 41. He wears conservative ties, button-down shirts, and favors dark gray suits. On his left hand, he wears a wedding ring; on his right, a wide band of gold with a cross cut into it, a ring one might expect to see on the hand of a nun or a priest.
McBee is from McAlester, Oklahoma. He attended the University of Oklahoma, and got his law degree at Southern Methodist University, where, he says, he became a Republican. After graduating from SMU, McBee took a job with Thompson & Knight in Dallas, specializing in oil-and-gas law. He became a partner in 1986, and when Bill Clements ran for a second term as governor, McBee volunteered to work on the campaign, where he got to know many of the leaders of the state Republican Party. When Clements was elected, McBee left the law firm and took a job as the governor's director of governmental appointments. In 1989, he moved to Washington to work in the Bush White House as the associate director of cabinet affairs. But McBee wanted to return to Texas, and in 1990, when Rick Perry defeated incumbent Jim Hightower in the Agriculture Commissioner's race, McBee got a call from Mike Toomey, who had worked on Perry's campaign. Toomey had been a state representative and had also worked for Clements. "The only place there were young Republicans like me that had gotten any training was in Clements' office," said McBee. "So that was the first place for Perry to turn."
Perry traveled to Washington to meet with McBee. "Rick spent an afternoon in Washington. At the end of the afternoon, he said, `I'd like you to be the deputy [commissioner] of the department,'" McBee recalls. "After a lot of thought and a lot of prayer, I decided to take him up on the offer." McBee was charged with transforming the Agriculture Dept. from its activist version under Hightower -- a populist Democrat who delighted in taking on the chemical industry and promoted organic farming -- into the agribusiness and pesticide industry-friendly deregulator promised by Rick Perry. For example, among the changes instituted by Perry and carried out by McBee was a successful attack on "right-to-know" laws, which had protected farmworkers from unannounced pesticide application. Under Perry and McBee, spraying was back in style.
In 1995, newly elected Governor George Bush offered McBee an appointment to the TNRCC, and McBee jumped at the opportunity. At TDA, he had played second fiddle to Perry in an agency with 500 employees and a $23 million budget. The TNRCC employs 3,000 employees, with a budget of $395 million (including $45 million in federal dollars). As TNRCC chairman, McBee also got a tidy $12,000 salary increase, to his current $90,000.
Having taken over from John Hall (under a provisional appointment that would not be confirmed by the legislature until the 1997 session), McBee began advancing Bush's agenda, under the states' rights slogan of "letting Texans run Texas." As an environmental policy, this Republican "devolution" approach to regulation is most evident in the agency's air quality programs. McBee and Bush have persistently fought the Clinton Administration and the Environmental Protection Agency over the requirements of the federal Clean Air Act, fearing the potential financial impact they might have on Dallas and Houston, two cities already out of compliance with federal clean-air mandates. Moreover, McBee has opposed any attempt to strengthen national air-quality standards on ozone or particulate matter, arguing both that Texas' own standards are sufficient and that a change would move more Texas cities (such as Austin and San Antonio) into non-compliance, making local industry subject to more stringent regulation.
Texas Knows Best
McBee has consistently broadcast the states' rights environmental message, and is not above grandstanding to make his point. In a speech last August to an audience that included Assistant Attorney General Lois Schiffer, who heads the Environmental and Natural Resources Division of the U.S. Justice Department, McBee directly attacked Schiffer and other federal officials. At one point, he handed Schiffer a bottle of Pepto Bismol, saying, "We in Texas, at my agency, are also frustrated with the EPA and with the federal government as a whole because we, too, feel as if we are being treated like children." A bit later he handed her some Anacin, saying that it might help cure some of the headaches that Texans like him have been giving the Feds. Afterward, told that Schiffer was not amused at what seemed McBee's condescension, he described his props as simply "rhetorical flourishes."
McBee may be right when he argues that the TNRCC could -- in theory -- handle many of the programs now administered by the EPA. But historically, the TNRCC and its several Texas predecessors have never performed as tough environmental enforcers. After years of lax enforcement by the long-defunct Texas Water Quality Board (moribund from birth), it took federal action to clean up the Houston Ship Channel; and toxic waste sites, such as the French Limited site in eastern Harris County, and the TECO PCB pit in Robstown, were only shut down and cleaned up under the terms of the federal Superfund Act. The State of Texas had done nothing.
Under McBee, TNRCC enforcement of federal and state environmental laws and regulations has become even more lax. Since McBee became chairman, for example, the agency has begun to notify regulated facilities before any TNRCC inspectors arrive -- roughly akin to giving bank robbers a police patrol schedule. And the agency's response to citizen complaints is now handled by the Office of Public Assistance -- which has no inspectors of its own, cannot issue citations to polluters, and is notoriously slow to respond to complaints.
Field offices that do issue citations have reduced their enforcement of pollution cases. A study released last December by the Austin-based Texas Center for Policy Studies found that while the TNRCC has claimed that it is stepping up enforcement against polluters and has assessed millions of dollars in fines against polluters, most of the penalties are never paid, but instead are waived in exchange for "Supplemental Environmental Projects." Through SEPs, companies that receive citations can spend money to correct their pollution problems -- in lieu of paying fines to the TNRCC. "Instead of the fines going to the state's general revenue fund, where they could be used for the state's overall needs, the TNRCC claims millions of dollars of enforcement credit for plant renovations that, most likely, the violators would carry out anyway," said the report. Under McBee, then, the agency has created the illusion of increased enforcement, levying fines that will never be collected, while giving polluters "credit" for coming into compliance with laws they've already broken.
Moreover, as environmental enforcement devolves to state regulators, what's to prevent Texas from doing what Virginia did when its state environmental protection agency was confronted with a huge pollution case? There, Smithfield Foods was charged with more than 5,000 violations of the Clean Water Act at its meatpacking operation in Smithfield, Virginia. In August, a federal judge upheld a $12.6 million fine the EPA had levied against Smithfield -- the largest fine ever levied under the Clean Water Act. In stark contrast, the state of Virginia had sought only a $2 million fine against the company. "Doesn't that show a need for federal regulation?" I asked McBee. He replied, "I don't know the facts of that case."
Turning a Deaf Ear
Defenders of deregulation point to the courts as the proper venue to resolve civil questions such as pollution disputes. Yet for the last decade, the Republican Party in Texas has been the driving force behind tort reform legislation that has made it more difficult for citizens to get into court to sue for damages caused by corporate interests. During McBee's tenure at the TNRCC, many would-be individual intervenors have had no other recourse than the courts, because McBee's policy changes have made it impossible for them to participate in the TNRCC permitting process -- even to contest the permitting of facilities that represent an immediate threat to neighbors' health or property values.
Several Texas landowners, in fact, have filed suit against the agency, claiming that the TNRCC has denied their rights to due process under the Fifth Amendment. Farmers in Ochiltree County have a case against the TNRCC pending in Travis County District Court. They sued because they were not allowed to contest permits that the TNRCC issued to the huge hog-feeding operations locating in their panhandle county. For the past two years, Ochiltree County has been effectively under siege by a Japanese corporation, Nippon Meat Packers, which plans to be processing a million hogs a year there by the year 2000.
It's not just opponents to Panhandle hog farms who are shut out at the TNRCC. Another example illustrates both the agency's record, and McBee's role as chairman.
On February 19, McBee and his two fellow commissioners reviewed an agenda item brought forth by Jack Carpenter, who owns land on Lake Livingston in East Texas. Carpenter was concerned about a waste-water permit that would allow a discharge of sludge into the lake. His property is less than a mile from the proposed sludge outfall, and he wanted the TNRCC to hold a hearing to discuss the permit. He raised issues about water quality, and about the Trinity River Authority's involvement in the project. The agency staff was convinced that Carpenter's concerns had merit. TNRCC general counsel Geoff Connor told the commissioners that executive director Dan Pearson "recommends you grant the hearing request, given [both] Carpenter's proximity to... the proposed facility and discharge rate, together with his concerns about water quality." The TNRCC's public interest counsel, Blas Coy, then told the commissioners that he, too, agreed with Carpenter's request for a hearing.
Even TNRCC Commissioner Ralph Márquez, a chemist who worked for chemical giant Monsanto for 30 years, seemed to agree, at least at first. "There's no doubt Mr. Carpenter may be affected," said Márquez -- but he then told his fellow commissioners that granting a hearing would be "making it more difficult for treatment plants." Márquez moved to deny the hearing, and John Baker seconded his motion.
On a three-person commission, a motion and a second equals a decision. McBee responded for the record that he would vote against Márquez's motion, because Carpenter had made "a facially valid hearing request," but he made no attempt whatsoever to persuade either of his colleagues.
It's a practice, McBee's critics say, that is far too common. The Commissioner didn't argue for his position. He didn't try to sway Baker or Márquez. He didn't try to convince them that denying Carpenter access to the TNRCC was wrong, or to point out that both agency advisory officers (the executive director and the public interest counsel) wanted Carpenter to get his hearing. "If he really wanted to convince the other two commissioners to change their positions, he could do that," says Rick Lowerre, an Austin environmental attorney. "He's a good debater and he could do more than he does." He's also politically astute, and the only member of the commission with any future in electoral politics -- possibly, some speculate, as President George W. Bush's director of the EPA. By voting against industry on a few occasions, when his two colleagues support it, he establishes a public record as somewhat moderate -- while doing no harm to the industries the commission almost always accommodates.
I asked McBee if the agency he directs has gone too far in limiting citizens' ability to contest the permitting of facilities. "I think this agency has interpreted what the Legislature told us to do," he says. "The Legislature wanted to change the ground rules for getting a hearing here. We tried to put it into practice. We've been criticized that we erected barriers, closed doors. I think we are doing what the executive branch is supposed to do, which is to follow the lead of the Legislature."
Ken Kramer is the director of the Lone Star Chapter of the Sierra Club -- and a frequent critic of Barry McBee. Like others in the environmental community, who often find themselves at odds with McBee, Kramer says that he likes McBee personally, describing him as smart and politically savvy, and praising him for his openness. But Kramer also describes McBee's "efforts to undermine public participation in the permitting process [as] the one big black mark against him." Excluding people from the process, says Kramer, "means a lot of environmental issues are never even brought up, because you don't have intervenors in there raising issues that should be raised."
Kramer acknowledges that McBee has only continued the trend toward reduced citizen input that began during Hall's tenure. Yet McBee has made citizen participation considerably more difficult than it was under Hall. "I can't say he's been good for the environment," Kramer said of McBee. McBee downplays the reduction in citizen input, saying that the TNRCC is "concerned about meaningful outcomes." Toward that end, McBee says, the agency has increased the number of mediators available to resolve disputes.
But what might mediators offer to neighbors of the pig farms in Ochiltree County? They were shut out of the process while the TNRCC issued permits to agribusiness operations that will drain tons of fecal waste into huge "pig lagoons," and many residents of Ochiltree County will now have to live with an unwelcome stench -- a stench they contend has diminished their ability to enjoy their property. Odor issues, says McBee, are "inherently going to be subjective. That's why the route of civil litigation is there." But to make sure no one mistakes him for a personal injury lawyer, McBee quickly added, "I'm not one to try to push things into litigation." I asked McBee if his party's legislative success in limiting individuals' access to court, and his own policy decisions that leave individuals with no other options, are at odds with one another. "Some people would say it's not a consistent philosophical approach," he replied.
Equally inconsistent is the GOP's national push for "property rights," which has resulted in "takings" legislation in a number of states. Takings laws require the government to compensate any private party for any government decision that imposes limits on property use which might detract from the value of the property. Isn't the TNRCC's granting of permits to giant pig factories a government "taking"-- that is, an act that, with no compensation, alters the value of the property surrounding the pig farms? "Some see this as a clash of property interests, and it may well be," responds McBee. "The bias historically and jurisprudentially in Texas is that you have a right to do on your property what you wish to do unless you cause harm [to your neighbors]. And the civil courts are a better place to say what is harm."
A Personal Aside
It was a fairly routine landfill case, in which no one expected a homily on Christian love and compassion. Houston-based Browning Ferris Industries (BFI) wanted to expand its Tessman Road landfill in Bexar County, near San Antonio. When BFI proposed to increase the height of the landfill, their neighbors objected and presented their case to the TNRCC. In a hearing before the three commissioners in November of 1996, the contesting parties went back and forth over the merits and drawbacks of the BFI proposal. Then Commissioner Ralph Márquez made a motion to grant BFI's proposal.
McBee responded to Márquez's motion, saying that he was not inclined to expand the landfill. "This is a personal aside," he said. "It may not be fully appropriate, but one I'd like to make. I have two invocations to me when we make decisions. One of those is to do justice: that is, to act within the law. The other is to love, and fulfill mercy. And in this case, again, based on all that is before me, I believe that perpetuating this operation would not allow me to believe that I fulfilled that second invocation to me."
Industry officials were not impressed by McBee's piety. "That absolutely scared the shit out of everybody in the business community," recalls one prominent lobbyist. "Barry had given strong signals that everything was going to be done according to the law, and all of a sudden love and mercy becomes a factor." The lobbyist continues, "If Barry had said, `The law isn't the absolute factor that I have to look at. I've discovered there are other factors,' that wouldn't have scared the business community as much. But when he said that stuff about love and mercy, it made people wonder."
So who is the real Barry McBee, and does the business community have reason for concern? Asked to describe himself, McBee replied, "I'd hope people would say and know that I am a Christian." As for his job at TNRCC, McBee said his duty is "to do justice. I see that both as a Christian and as a lawyer." McBee has clearly thought a great deal about his position. Like most prominent public officials, he also wants to be liked, and goes out of his way to be accommodating. He had his secretary repeatedly call me to schedule a follow-up interview after we first talked in early September. Why, I asked, was there such persistence for an interview on a story in which he had reason to suspect he would not be given an easy ride? Because, McBee explained, as a public servant he needs to make himself available. "I have an obligation to do unto you as I would have you do unto me. In the same sense that before you walked in the door, I prayed that I would treat you with dignity and respect. Because I don't expect you to write a puff piece about me. But you have a job to do."
Isn't it difficult, I asked, for a regulator to make decisions on landfills and other projects when the clear message of the Gospels is, "Do unto others as you would have them do unto you"? If a Christian and a regulator took that ideal to heart, wouldn't it mean that he could never vote to put a landfill next to someone's home?
No, McBee replied. Because as a regulator, he has to take the idea of doing unto others "in a broad sense, insuring that those others have a job, that they have a way to provide for their family." Furthermore, the message of the Gospels, said McBee, is not "do unto others as you would have them do unto you." It is that "we are all sinners. We are all needing a savior. And that savior is Jesus Christ. That's the Gospel message. From that flows forth how we treat our fellow man. He was created by God, in God's image. And that is where we get the idea of `Do unto others as we would have them do unto us.'"
Which McBee will prevail in this internal personal struggle between the sacred and the profane? TNRCC decisions suggest that the business community need not worry too much. The God of Justice, Love, and Mercy doesn't reveal himself very often -- and when He does so, He's easily outvoted, two to one.
This story and its accompanying sidebars first appeared in The Texas Observer.