The Austin Chronicle

Sunset Advisory Commission Takes Aim at Texas Commission on Environmental Quality

State commission looks into concerns of transparency

By Lina Fisher, June 17, 2022, News

Every 12 years since 1977, the Texas Legislature's Sunset Advisory Commission reviews state agencies for evidence of inefficiency or redundancy. They make recommendations, hear public input, and eventually present a final review to the full Lege, which then decides which of the recommendations to pass into law. It's now the oft-reviled Texas Commission on Environmental Quality (TCEQ)'s turn to be "under sunset," and the Sunset Commission's first draft review presents an opportunity to restore regulatory rigor and public trust to the embattled institution.

TCEQ's main issue is transparency, resulting in a "concerning level of distrust of the agency – by regulated entities, environmental advocates, public officials, and the general public," says the Sunset Commis­sion's report. There's confusion around what TCEQ can and can't regulate, as well as how it makes decisions on what poses a health risk to the public. For example, it does not regulate "zoning ordinances ... on the appropriate location of a facility," an issue the public may assume is under TCEQ's purview.

The Sunset Commission's solution is to direct TCEQ's commissioners to make policy decisions in public meetings, rather than punting to staff in internal meetings, and adopt a document that explains what factors it uses to determine health risks. It also suggests action to strengthen the Office of Public Interest Counsel (OPIC), whose job it is to "promote public interest" in commission proceedings. OPIC should gain the ability to hire expert consultants on highly technical cases, and TCEQ should actually take action on OPIC's rulemaking recommendations, which it currently does not.

Rep. Erin Zwiener (D-Driftwood), who leads the legislature's environmental caucus, supports greater transparency, but says "the solution is not just explaining that TCEQ is not who's in charge of [location] siting decisions. The answer is to give the ability to make those siting decisions to local entities, or give [them] the power to advise TCEQ." Zwiener likewise worries that the standards TCEQ sets – which are decided under wraps – directly contradict federal ones. She cites the proliferation of ethylene oxide in the Laredo area that's linked to a cancer cluster, on which TCEQ fought EPA standards. "I would like a little bit more direct conversation about the TCEQ not setting stricter standards. In the case of ethylene oxide, it looks like we may be seeing some real human health costs."

The Sunset Commission also recommends transparency in tracking violations, to rely less on self-reported recordkeeping violations, which "may incentivize industry to conceal vital monitoring and recordkeeping violations. TCEQ's commissioners have in some ways become reluctant regulators... encouraging industry members to self-govern and self-police." The Commission suggests TCEQ reclassify violations based on severity and crack down on repeat violators.

Another important recommendation is for TCEQ to improve environmental flow standards – the minimum water flow to sustain aquatic life in river basins and bays. The report suggests a biennial statewide work plan for updates, public meetings on groundwater management, and a comprehensive study of water usage data to encourage canceling water right permits that aren't being used. Zwiener supports those policies but says she's concerned there will be pushback: "Questions over who gets how much water are incredibly fraught; it's a scarce resource. And we're going to be going into session on the tail end of what looks like a drought."

Despite Texas leadership's unfriendly attitude toward strict environmental regulation, Zwiener says the transparency and OPIC recommendations are likely to be successful once they make their way to the Legislature. What's missing for her is "tying the fee amounts to inflation, so the penalties for polluting don't effectively decrease over time, [and] accounting for cumulative effects in multiple facilities. TCEQ's model is pollution at the fence line; the question is what happens when you have 10 of those facilities right next to each other. That's how we end up with regions that experience incredibly high rates of pollution – disproportionately areas inhabited by folks who are low income and/or people of color."

More broadly, she says, "Quite frankly, everything feels like it's nibbling around the edges under current state executive leadership. [TCEQ is] caught between two contradictory missions, with statewide leaders that put one above the other. It is nonsensical to have a mission that is both 'protect the environment and public health and safety,' and 'protect economic development.'"

All Sunset Commission meetings are open to the public with opportunities for feedback; the next one is June 22.

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