Capitol Chronicle

Nothing But Blue Skies: The Texas method of environmental protection scores another smoky victory

Capitol Chronicle
Illustration By Doug Potter

It was a one-day story in a few state dailies, so you may well have missed it. A couple of weeks ago, the centerpiece of the Legislature's plan to clean up Texas air withered and died like bluebonnets in July. State District Judge Lora J. Livingston informed the parties to a lawsuit contesting Senate Bill 5 -- passed with much Capitol fanfare last year as a painless way to finally implement the federal Clean Air Act -- that the bill's method of funding was almost certainly unconstitutional. In a letter dated Feb. 21 (but released to the press, curiously, two months later), Livingston told the parties (automobile dealers vs. the Department of Public Safety) to prepare an agreement in accordance with her expected final ruling: that putting the overwhelming bulk of the cost for pollution cleanup on new drivers moving into Texas is patently a violation of state and federal guarantees of equal protection under the law. So, of the bill's projected $137 million in funding -- aimed at "incentivizing" various methods of reducing pollution in the state's dirtiest urban areas -- $94 million had just gone up the chimney.


Let's Tax the Eskimos

To back up a bit: The state's major urban areas are all either in "non-attainment" (Houston, Dallas/Fort Worth, and El Paso) or near non-attainment (Austin, Longview/Tyler, Corpus Christi, etc.) of federal Clean Air Act standards for ozone (that is, the air is so increasingly polluted that we're breaking the law). And if Texas doesn't get its act together and finally do something besides twiddle its regulatory and legislative thumbs, the feds are supposed to step in, set their own limits on emissions, and even -- horrors! -- start withholding highway funds. The Texas Natural Resource Conservation Commission, consulting with local and state interest groups, drafted State Implementation Plans (SIPs) for each of the non-attainment areas, designed to reduce nitrogen oxides and other compounds that produce ozone smog (the most visible, if not necessarily the most dangerous, urban pollution).

Because those proposed regs looked too onerous to the Lege (only because Texas has been dragging its feet for so long), Senate Bill 5 offered financial incentives to industry to reduce emissions, underwrite cleaner vehicles, even encourage more energy-efficient buildings. As the bill was announced, it would be paid for by a wide range of individual and industry licensing fees (higher in urban areas), and maybe even a gasoline tax. Sponsoring Senator Buster Brown, the TNRCC, the EPA, and even an environmentalist or two clapped each other on the back and said, "Well done."

Then the bill got to the House, the usual Chicken Littles cried "New Taxes!," Gov. Perry's office grew skittish -- and the Lege, in its inimitable wisdom, decided to dump 70% of the cost on folks who were not quite yet Texans. New out-of-state vehicle registration fees would be raised from $1 to $225 at a stroke. What genius.

Said Judge Livingston, "The discussions in the Legislature ... make it clear that the only basis for the [registration fee] was to burden persons and entities, other than local constituents, with the fee." The judge's order isn't yet final, but as Buster Brown noted dourly, "Everybody that looked at that has concluded that the court is going to rule that this fee is unconstitutional."

The nastier truth is -- as everybody in the House in the waning moments of last year's session certainly realized when the registration amendment (carried by Angleton Republican Dennis Bonnen) was proposed -- such a fee structure didn't have any chance of passing legal muster. Similar legislation has already been rejected by courts in three other states, and such an outrageously imbalanced tax was absurd on its face.

It seems reasonable to conclude, frankly, that this was an act of cynicism, and the lawmakers just didn't give a damn. What I wonder is, why they didn't just pass a law putting 100% of the tax on the citizens of, say, California, Wisconsin, ... or British Columbia?

It would make about as much damn sense, and at least be a better punch line.

The Ace in the D.C. Hole

So here we are a year later, with federal deadlines still looming, the air quality from Galveston to Fort Worth steadily worsening, and the state with no real plan to do much of anything about it. (Austin's recently announced "O3 Flex" plan is an attempt by local leaders to step in where the state has failed and to save our region from this kind of trouble -- although as much as 25% of our region's ozone problem originates in Houston.) The SIPs as drafted were already inadequate to meet federal standards by the 2007 deadline, and the TNRCC's most draconian regs -- e.g., alternate driving days in Harris County, no use of diesel-powered or landscaping engines before noon -- which SB 5 was supposed to prevent, have suddenly reappeared on the drawing board as symbols of the evil hysteria of environmentalism. The Houston SIP, as originally drafted, was already 56 tons of NOx reductions per day short of meeting federal standards. Without the SB 5 programs, it will be 80 tons short per day -- and that's only the Galveston-Houston area SIP.

Tom Smith of Public Citizen, inveterate optimist that he is, says the programs can be saved, the law made constitutional next year, and the additional money somehow found (goosed about 25% to allow for two more years of dithering) to save the SIPs. Robin Schneider of the Texas Campaign for the Environment is less confident. "Houston, we have a problem," she said. "Lower federal courts have already approved even tougher [air quality] standards than the SIPs are based on, and this ruling may well put the nails in the coffin of the SIPs." (Under the tougher standards, Austin is probably already in non-attainment.) "The feds should step in," continued Schneider. "Whether they will -- well, I would certainly be surprised."

The unspoken variable in that legal equation is obvious: George W. Bush. Although the Environmental Protection Agency has publicly insisted that the Texas SIPs must be held to Clean Air Act standards, in D.C. the EPA has lost every public battle it has fought with currently more favored agencies, most especially the Department of Energy. The supine Congress has made the bipartisan decision to do nothing about either energy conservation or vehicle efficiency. And the current occupant of the White House has made it abundantly clear that his economic motto is Full Speed Ahead, Damn the Emissions. When he was still in Texas, Bush's consistent program for environmental protection was to ask major industrial polluters to "volunteer" to impose less pollution, in the air, water, and land, on the community at large. They had never done so before -- and they haven't since.

My best guess? The Texas air is going to get a lot, lot worse before it gets any better. end story

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air pollution, Clean Air Act, Senate Bill 5, Lora J. Livingston, Texas Natural Resource Conservation Commission, State Implementation Plans, Buster Brown, TNRCC, Dennis Bonnen, Environmental Protection Agency, Dept. of Energy, George W. Bush, Tom Smith, Public Citizen, Robin Schneider, Texas Campaign for the Environment

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