The Texas Supreme Court ruled Friday that Houston may not effectively void a state air pollution permit.
The justices agreed with Southern Crushed Concrete that Houston’s 2007 law restricting the location of concrete-crushing facilities violates state statute by nullifying a permit issued by the Texas Commission on Environmental Quality.
In reversing an appeals court decision, Justice Debra Lehrmann said the state’s Health and Safety Code is clear.
The law “compels us to give effect to the Legislature’s clear intent that a city may not pass an ordinance that effectively moots a Commission decision,” Lehrmann wrote in an opinion for the nine-member court.
City Attorney Dave Feldman said he was not surprised by the ruling because “any time you have a local ordinance that regulates a specific area that is regulated by the state, preemption is an issue that you have to deal with.”
Southern Crushed Concrete’s facility meets the state’s requirement, but not the city’s. So the company sued, claiming the city did not have the authority to regulate its business.
Houston countered that the state’s permit regulates air pollution, while its ordinance dealt with land use. The Supreme Court, however, disagreed, ruling that reasoning would allow a city to effectively void any TCEQ permit it opposes.
I think there was merit in Houston’s ordinance, but I can see the reasoning behind the Supreme Court ruling. Mostly what this points out is that as usual, the state isn’t doing as much as it could to protect the environment and the health of people who live a little too close to places like the Southern Crushed Concrete facility. I also find it amusing in a way that this ruling that affirmed the state’s supremacy over cities came out around the same time that League City was declaring its supremacy over the federal government. I wonder what the Supreme Court would say about that? Anyway, this story isn’t quite finished yet, since the matter has been referred back to the TCEQ, where Houston can pursue an appeal of its initial permit to Southern Crushed Concrete. Perhaps the city can lobby for a modification to the state law that would allow local ordinances to be taken into account by the TCEQ when reviewing permit requests as well.