Texas has inherited one-third of county lawsuits since 2017

It was not immediately clear what chemicals were spewed into the air at the Channel View fire. What everyone knew was that large plumes of black smoke were visible across the late afternoon sky for miles just east of Houston, prompting evacuations and shelter-in-places in the nearby community of Lakeside Park Estates. That’s what it meant.

After the fire had been burning for more than two hours, residents learned what had happened. In early April 2021, an accident at K-Solv, a chemical distribution and maritime services company, caused a chemical fire that released more than 165,000 pounds of 43 different pollutants into the air, including It also contained substances known to be harmful to human health. The company then failed to notify the Texas Commission on Environmental Quality within 24 hours of the emission event, as required by state law.

County experts estimated the company could be fined up to $1.175 million for these two violations. But to the alarm of Harris County officials, residents and environmentalists, TCEQ settled the case for $11,413, less than one percent of that amount.

“You can imagine our surprise when the state of Texas settled for just that,” Harris County Attorney Christian Menefee said. “No one can say what the county could not have settled for, but as you know, my attorney is very good and very aggressive. I’m sure that’s enough. ”

The K-Solve settlement was not the first time Menefee and his environmental team found themselves at odds with the state. Over the past seven years, TCEQ and Texas Attorney General Ken Paxton’s office have filed more than one-third of civil penalty lawsuits against Houston’s petrochemical industry under a 2017 state law that allowed the state to file county lawsuits. I’ve intervened. Residents, advocates and counties say the policy is just one of many restrictions aimed at reducing local power, reducing settlements and collecting fines from affected counties and communities. claims.

Since the passage of HB 2533, states can file environmental civil penalty actions within 90 days of an emission event and prohibit local governments, individuals, and nonprofit organizations from filing lawsuits on their behalf. This means that local entities must notify the TCEQ Executive Director and the Attorney General before filing a lawsuit. TCEQ and the Attorney General’s Office will then decide whether to accept it, without input from local officials.

The bill’s author, Rep. Charlie Geren of the 99th District, did not respond to repeated requests for comment, but at the bill’s first public hearing in 2017 he said local government actions would be “statewide enforcement actions.” “This is contrary to policy and interpretation,” he said, adding that local governments are “motivated to generate an award for attorney fees as part of the penalty, rather than remediate the environmental problem.”

Since the bill was passed, critics have noted that several lawsuits brought by the state have settled for less than 10% of the maximum penalty, which Menefee believes benefits the industry. We believe this is a way to weaken the enforcement power of local governments.

“Even under my predecessor, this office has always been very aggressive in pursuing these cases,” Menefee said. “But now, if a company has millions of dollars at stake and you settle for only a few thousand dollars, what would motivate that company to scrutinize its processes and make sure that the company is What is the best way to protect against fraud? ” What about the surrounding community? ”

Removal of local control

In 2015, to the displeasure of some state leaders, Harris and Fort Bend counties sued Volkswagen for introducing technology to circumvent emissions controls in a multibillion-dollar national scandal.

The county filed the lawsuit two weeks before the state of Texas, but ultimately refused to drop the case at Paxton’s request.

The resulting battle between the state and county, as well as other counties’ heavy penalty lawsuits against Intercontinental and Arkema after Hurricane Harvey, led Geren and other officials to push for legal reform. Ta. Geren argued at the hearing that the bill would prevent new conflicts with Volkswagen and ensure consistency in enforcement policies across Texas.

“There were some restrictions in the beginning, but the attorney general’s office basically controlled everything and shut the county out,” said William Locke Owens, a former Harris County attorney. ” he said. “This made it absolutely impossible to do anything without the absolute approval of the Attorney General.”

In 2011, the state Legislature passed a bill requiring state agencies to receive approval from the attorney general’s office before hiring outside counsel to assist with a case.

And in 2015, the Legislature passed a bill limiting the amount of fines from environmental lawsuits that counties can collect. The bill, also authored by Geren, would reduce the county’s amount by $4.3 million, with the remaining balance going to the state’s general fund.

Owens, who retired from the county in 2019 after nearly 40 years of service, said the increased restrictions were a factor in his retirement. He found it frustrating and exhausting to watch the county slowly lose its independence.

“Outside counsel could help us be more effective in the case,” Owens said. “But every time we find a way to do something that might squeeze an industry or something a little bit, the state is going to make it difficult for us.”

This trend has become especially evident since the 2017 bill. The county must send a notice to the state explaining its case and how many violations it will pursue. The state will then have 90 days to review the documents and decide whether to file a lawsuit or allow the local government to proceed. The county cannot move forward with the lawsuit until that decision is made.

If the state decides to file a lawsuit, it will file the case with the Attorney General’s Office through the TCEQ Administrative Court or District Court.

Asked about its criteria for selecting lawsuits, TCEQ said, “The agency considers each request from a local government to file a lawsuit on a case-by-case basis in consultation with attorneys from the Attorney General’s Office.” .

However, TCEQ said it does not track the number of cases from local governments, including Harris County.

The attorney general’s office did not respond to a request for comment.

penalty issue

In the case of the K-Solv fire, TCEQ considered all 43 contaminants to be one violation rather than 43 separate violations. Each violation is worth up to $25,000 per day. Because there was only one violation per day and the violation duration was less than three hours, the agency was fined just over $11,000.

Sarah Utley, an assistant Harris County attorney who specializes in environmental cases, said the TCEQ does not identify or differentiate each pollutant as a different violation. This greatly reduces the total potential penalty from the start.

“This is one of the biggest differences between TCEQ and us and the district courts,” Utley said. “The (Travis County) district court and county will seek different penalties for each pollutant emitted. TCEQ doesn’t do that. Their penalty numbers are always pretty low.”

In a 2018 case, TCEQ settled with chemical manufacturer Kuraray for more than $8,000 of a maximum penalty of $150,000.

In a separate discharge case in 2021, TCEQ imposed fines of up to $300,000 to $11,250 against VSL Environmental Solutions, a waste management and marine services company.

Emissions cases sent to local courts are divided, but the total fine could be much lower than the maximum amount. The 2019 explosion and fire at the Exxon Baytown complex resulted in 770 violations for 14 different contaminants over five days.

The district court settled the case for just $755,000, which is only 4% of the maximum potential fine of $19.25 million.

“People need to understand that these are not small incidents, these are big incidents,” Utley said. “The state isn’t going after little kids. It’s not like we have little facilities that do little emission events. These are big cheeses.”

Even though the fine settlements are low, another concern for critics of the bill is that the money raised by the state would go to the state’s general fund, rather than the county’s general fund or the individuals who want to sue. .

This means penalties collected from Houston’s local petrochemical industry could end up miles away in Austin, rather than in the hands of local governments and communities, Sierra Club Texas said. said Silas Reed, conservation director for the Lone Star Chapter.

Any fines the county receives go to Harris County’s general fund, but Menefee said the money should go to environmental protections such as the Harris County Pollution Control Office and the county attorney’s office.

Menefee also cited office expansion as evidence that local government is prioritizing environmental issues. Since he took over in 2019, the environmental team has grown from six lawyers and three paralegals to 13 lawyers and four paralegals.

Mr. Reed voiced his opposition to the bill at a public hearing in 2017, and his opinion remains the same in 2024. He cited the 20 lobbyists and industry groups that originally supported the bill as evidence of the problem. The list includes organizations such as the Texas Chemistry Council, the Texas Oil and Gas Association, the Texas Business Association, and the Texas Manufacturers Association. No one responded to requests for comment.

“Given the significant political support that Texas’ large corporations enjoy, this could lead to less aggressive civil litigation and less severe penalties, which could be detrimental to local communities.” Mr. Reed said.

citizen complaints

Although it is legal for private citizens and nonprofit organizations to sue polluting companies in state court, the best results are usually achieved through the Clean Air Act’s citizen action provisions. The rule, passed by President Richard Nixon in 1970, allows anyone to sue in federal court over emissions events.

However, TCEQ and the Attorney General’s Office may intervene there. If a state files a similar lawsuit alleging the same environmental emissions issue, the individual’s claim cannot proceed. The state has 60 days to file a lawsuit, again depriving communities of local action and potential fines.

“Sueing polluters in state court in Texas is very difficult, expensive, and complicated, and HB 2533 is about this county,” said Sierra Club Clean Air Director and former TCEQ Regulator Neil Carman said. “(The nonprofit) and the public will be sued in federal court, but TCEQ will still do the same thing.”

In July 2019, TCEQ filed a lawsuit from the Sierra Club alleging 600 violations and the release of approximately 1.8 million pounds of unauthorized pollutants at the Valero refinery in Port Arthur.

“The State of Texas and TCEQ filed a motion to discontinue our resident case in Travis County in mid-July,” Carman said. “Their lawsuit was a word-for-word reproduction of the 60-day notice they filed against Valero.”

However, complaints from local residents have resulted in millions of dollars in penalties being donated to local public health and environmental projects. In 2009, the nonprofit Sierra Club and Texas Environment successfully sued Shell Oil Company for “upset” events such as equipment failures and malfunctions at its Deer Park refinery and chemical plant. .

The resulting $5.8 million fine will fund environmental and health projects in Harris County, including replacing school buses with ones with cleaner engines and a solar energy demonstration project by the Houston Advanced Research Center. did.

“In both cases (HB 2533 and the federal government), the state is cutting off the community,” Carman said. “It’s a matter of how they do it.”

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