Toxic Two-Step

Half a century ago, political scientists coined the term “regulatory capture” to describe the process by which rulemaking government agencies gradually become co-opted by rule-averse industry. It’s a wonderfully apposite term, connoting as it does the quasi-military manner in which private interests strategically maneuver to outflank and overtake those agencies that are supposed to be serving the public interest.

But what do you call it when industry doesn't even need to commandeer the regulatory machinery—because the rulemaking process has already been designed to adapt to corporations’ desires, whatever they may be? As it is, I'm not sure political scientists have a name for the way things work down in my home state of Texas, where it sometimes seems as though the placation of industrial polluters is the very M.O. of the state’s extraordinarily business-friendly environmental agency.

Unlike many other agencies of its kind, the Texas Commission on Environmental Quality (TCEQ) is well-staffed and—with an operating budget of $368 million for the current fiscal year—well-funded. Nearly 3,000 employees work at its Austin headquarters or in one of 16 regional offices spread across the state, making TCEQ the largest environmental agency in the country after the U.S. Environmental Protection Agency.

TCEQ was formed from the ashes of its regulatory predecessor, the Texas Natural Resource Conservation Commission, whose acronym—TNRCC—detractors took to pronouncing as “train wreck.” When the state legislature renewed TNRCC’s funding in 2001, it generously gave the agency a new name with an acronym that wouldn’t invite such mockery. But along with its new initials, the agency also appeared to receive a new brief from legislators: Whenever possible, calculate environmental and public-health risks in such a way as to show special consideration for the financial burdens borne by the business sector as it’s forced to meet standards and comply with regulations.

In a state dominated by the heavily polluting oil, gas, and chemical industries, that degree of special consideration has morphed, over the last 15 years, into something that now looks very much like deference. TCEQ’s record on toxics is a damning one. Among numerous other examples, it includes weakening Texas’ pollution threshold for benzene (a potent and well-known carcinogen) by 40 percent back in 2007; publicly questioning the EPA’s solid science on the relative harm posed by mercury in 2011; and, at present, leading the state’s fight against the EPA’s new air-quality standards, at one point by arguing that ozone pollution wouldn’t be so much of a public-health problem if people would just do what any sane Texan already knows to do: stay indoors during the summer.

TCEQ’s latest nod to industry comes in the form of Senate Bill 709, a mean little piece of legislation that aims to fast-track the approval of environmental permits for businesses. It would do so by dramatically curtailing the public’s ability to question the environmental and health impacts of things like wastewater discharge and toxic emissions. The bill’s author, Senator Troy Fraser, has had a busy 2015 so far: His other newsworthy accomplishment this year was writing a bill that would do away with Texas’ Renewable Portfolio Standard. Fraser claims the standard is no longer necessary given that Texas, a national leader in wind energy, has already surpassed its goals for renewables. (He doesn’t seem to mind that eliminating the RPS would threaten renewable energy projects still in the works, or that it would make it much more difficult and expensive for his state to comply with new federal carbon pollution rules.)

Now Fraser is arguing that contested-case hearings—the only real means that average Texans have left for questioning or challenging environmentally unsound business practices—have become a job-killing, economy-endangering, bureaucratic nuisance, and need to be brought under control.

Whose control, you ask? You guessed it, Tex. Under the new law, TCEQ would be granted even more authority over these hearings than it has had in the past, including authority that has previously been exercised by administrative judges. In addition to determining the standing of plaintiffs, TCEQ will now be able to set (much tighter) deadlines for discovery and hearings, and even define which issues are—and aren’t—up for debate.

More tellingly, perhaps, the law would shift the balance of power between citizens and corporations by moving the evidentiary burden of proof onto the challenger. No longer would a company whose environmental permit was being questioned need to fully explain its plans nor defend their legality or safety. Instead, any such plans would enjoy the presumption of legitimacy going into a hearing; the onus would be on the challenger to “prove” to TCEQ that the permit had been issued erroneously or was in need of modification.

The notion that contested-case hearings are somehow strangling Texas’ economic growth or stifling its ability to compete is risible on its face. In 2014, TCEQ received more than 1,900 permit applications from companies seeking exemptions from regulations with regard to waste disposal and water and air pollution. Out of those, precisely 10 ended up being contested in a hearing.

Even the Lone Star State’s staunchest environmental defenders concede that contested-case hearings rarely result in the flat-out denial of a requested permit. At best, they say, a hearing might end up persuading TCEQ to give an applicant somewhat less of what it had asked for. But the applicant almost always gets something. (One hearing that did result in a significant triumph for the challenger occurred in 2006, when residents of a Port Arthur public-housing project went up against the petrochemical giant Motiva—a battle recounted in onEarth.)

Even so, say S.B. 709’s proponents, the mere possibility that a company’s permit might be held up by some pesky citizen is enough to have a chilling effect on business. Over the expressed reservations of environmental organizations, citizens’ rights groups, and Democratic lawmakers, then, Fraser’s bill breezed through both chambers of the Republican-controlled Texas legislature and is very likely to be signed into law soon by Republican Governor Greg Abbott.

If and when that happens, those who believe that privileging private interests is always, ipso facto, in the public interest will sleep much easier, knowing that anyone who’s actually worried about environmental quality in Texas will have to first go through TCEQ. After all, who needs “regulatory capture” when you’ve got regulatory capitulation?