Comrades in Court

illustration by Doug Potter

Only in Texas could the boll weevil end up as the Capital City's biggest ally. And yet, that is exactly what has happened in the city's legal battle to invalidate more than a dozen water quality protection zones that have been formed around the city since 1995. It sounds odd. Hell, it is odd. But just stick with me for a moment and the situation will (hopefully) become a little clearer. And if, by some chance, you think that the issues involved in the city's litigation are not that important, think again. The water quality issues are of great importance for Barton Creek and Barton Springs. But the larger issues being argued go directly to the heart of democracy: Specifically, how and when can the Texas Legislature decide that a private entity will be given control over a block of territory? I'll come back to that.

In 1993, the legislature passed the first of several pieces of legislation creating a quasi-governmental entity, the Texas Boll Weevil Eradication Foundation. The legislature gave the foundation power to tax and police cotton growers for the express purpose of eradicating the weevil, a highly destructive insect that has tormented Texas cotton farmers for over a century. But the foundation quickly became a legislative Frankenstein. It had virtually no oversight, and operated with an autonomy that infuriated cotton farmers across the state. Then, in 1996, a disastrous infestation of another cotton pest, the beet armyworm, wiped out cotton crops in the Rio Grande Valley and the San Angelo area, costing farmers some $300 million. And a study by a pair of U.S. Department of Agriculture scientists placed at least some of the blame for the beet armyworm problem at the feet of the eradication foundation. Predictably, the farmers sued. They claimed the legislature had overstepped its authority and asked the courts to rule that the eradication foundation was unconstitutional. Their case quickly moved through the courts, and last April the Texas Supreme Court issued a ruling agreeing with the farmers.

In a 5-4 opinion, the court ruled that the legislature had erred in granting the foundation too much power, and that the foundation "represents an overly broad delegation of legislative authority to a private entity." Justice Nathan Hecht went further, calling the eradication foundation "little more than a posse: volunteers and private entities neither elected nor appointed, privately organized and supported by the majority of some small group, backed by law but without guidelines or supervision, wielding great power over people's lives and property but answering virtually to no one."

The City is currently involved in a legal battle to invalidate more than a dozen water quality protection zones. These areas are controlled by private entities and are exempt from Austinís water quality protection laws.

Now, back to Austin's lawsuit over the water quality protection zones. In 1995, a bill called SB 1017, written by Sen. Jeff Wentworth (R-San Antonio), was signed into law, allowing landowners with more than 1,000 acres to create a zone that is exempt from Austin's water quality protection laws. The bill also allows these zones to avoid annexation by the City of Austin for up to 20 years. In other words, the zones became a political subdivision of the state, just like the eradication foundation.

But Wentworth's bill provided almost no guidance in how these zones should be governed. In its wake, some of the largest private landowners in the Austin area, including New Orleans-based FM Properties and Gary Bradley's Phoenix Holdings, formed water quality zones. To do so, they were merely required to notify the Texas Natural Resource Conservation Commission and Travis County of their plans.

Karl Bayer, an attorney representing the city in this litigation, says when the City of Austin asked the TNRCC how it was planning to regulate water quality in the new zones, "the agency wouldn't tell us what federal or state laws would apply." The city's question to the agency was surely inspired by the first in a set of eight questions that the high court devised in its ruling on the boll weevil foundation. The eight questions were designed to determine whether a law impermissibly delegates legislative authority to another entity. The first question: "Are the private delegate's actions subject to meaningful review by a state agency or other branch of state government?" Through its nebulous response to the city, the TNRCC appears to have bolstered the city's contention that SB 1017 is "an unconstitutional delegation of unbridled legislative authority to private interests."

The issue of private interests taking precedence over those of the people was a primary concern of the Texas Supreme Court in its ruling on the boll weevil case. Private entities who have been given legislative authority over a given piece of territory "may have a personal or pecuniary interest which is inconsistent with or repugnant to the public interest being served," wrote the justices. "More fundamentally, the basic concept of democratic rule under a republican form of government is compromised when public powers are abandoned to those who are neither elected by the people, appointed by a public official or entity, nor employed by the government. Thus, we believe it axiomatic that courts should subject private delegations to a more searching scrutiny."

The lawsuit over the SB 1017 is the city's latest attempt to preserve its authority to regulate water quality in environmentally sensitive areas that lie within its extra-territorial jurisdiction. Last August, the city won a lawsuit that sought to overturn another bill passed by the Lege in 1995, HB 3193. That bill, too, exempted a large area (about 8,000 acres) in southwestern Travis County from the City of Austin's annexation and water quality laws. In an August 26 letter, Judge Scott McCown wrote that "If laws can be passed to favor particular people or disadvantage particular localities, then - as the constitutional framers knew too well - private interest will prevail over the public interest." McCown's ruling in favor of the city has since been appealed to the Third Court of Appeals.

While the city fights the water quality zones, the farmers who have been hurt by the boll weevil foundation are pursuing multi-million-dollar claims against the foundation, a handful of chemical companies, and a half-dozen crop-dusters. Two pending lawsuits are seeking damages for cotton crops that were lost after the foundation applied huge quantities of pesticides on cotton fields in South Texas. No trial dates have been announced in those cases.

A trial is looming, however, in the city's litigation on the water quality zones. Travis County District Court Judge Paul Davis issued a scheduling order on April 3 that sets August 31 as the trial date for the SB 1017 litigation. But just as the boll weevil case was ultimately decided by the highest court in the state, Davis recognizes that the issues involved in the city's case are unlikely to be resolved by his court. In his letter to the fleet of attorneys working on the case, Davis writes, "All parties agree this Court's decision in this case will not be the final word."

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Freeport in Rolling Stone

Perhaps the most telling line in Michael Paterniti's mostly superficial article in the April 30 issue of Rolling Stone about Freeport-McMoRan Copper & Gold's Irian Jaya mining operation comes from an e-mail that Paterniti was mistakenly given while staying at the Sheraton Hotel in Timika, the mining town that Freeport has built below the Grasberg mine. The e-mail was sent by Freeport PR man Garland Robinette to Paul Murphy, Freeport's head man in Jakarta. "The majority agreed that we should not let this guy [Paterniti] in, but we needed to find a valid reason," Robinette wrote to Murphy. "Our intelligence research showed no reason that we could use to keep him out.... Barring a reporter because we don't like his publication or his personality leaves us open to the charge that we allow only those in who we think will be pro-Freeport."