Texas Rights Under Siege

Basic rights that most Texans had come to take for granted have been under siege by the current TNRCC administration. Relying on vague language in a 1995 state law sponsored by Senator Teel Bivins (R-Amarillo), the commissioners have been denying hundreds of citizen requests for hearings on environmental permit applications. Prior to 1995, such hearing requests were routinely granted to citizens under the state administrative procedure law, enacted in 1975.

Industry has long opposed citizens' fights to participate effectively in TNRCC permit decisions for new waste dumps, chemical plants, corporate hog farms, or other facilities that can wreak havoc on neighborhoods, the environment, public health, and property rights. Industry representatives claim that the hearing process slows down their applications and imposes undue burdens, even though hearings are requested on less than 2% of applications filed.

Industry's real complaint, apparently, is that the hearing process potentially gives citizens a level playing field, where each side must prove its case before an independent hearings examiner. And citizens often win, proving through the hearing that the permit should be denied outright, or at least should contain more stringent conditions. Without the opportunity for a hearing, the decision to grant or deny the permit is generally based solely on the recommendations of the TNRCC staff -- a staff that has been lobbied by the permit applicant for months.

Recent court challenges, however, could curb TNRCC's aggressive program to limit public participation. Earlier this year, Travis County District Court Judge Paul David ruled that TNRCC's denial of a hearing request by West Dallas residents opposing expansion of a nearby hazardous waste management facility was "absurd." The judge ruled that the nearby neighbors -- who had already been affected by odors from the existing plant -- were clearly entitled to participate in TNRCC's decision-making on the expansion application. (The agency has appealed the decision.)

In another case, awaiting a ruling by Travis County Judge Joe Hart, TNRCC is defending its denial of a hearing request filed by a landowner located less than one mile downstream of the City of Sherman's wastewater treatment plant. The city wants to increase its discharge from the plant, which requires a permit amendment from TNRCC. The landowner expressed concerns about the effects of the increased discharge on the quality of the water in the creek running through her land. Despite the fact that such a hearing request would have been readily granted under prior commissions, the current commissioners denied it. (The judge's decision is still pending.)

Mary Kelly
Director, Texas Center for Policy Studies

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Note: A guide for citizens who want to request a TNRCC hearing on a permit application and avoid the pitfalls that might allow the commission to deny their request is available from the Texas Center for Policy Studies, PO Box 2618, Austin, TX, 78768. Ask for the Citizen Participation Guide.