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Luke Metzger

Protecting polluters

Ridiculous.

Ship Channel circa 1973

It’s never been easy fighting powerful polluters in Texas. A bill approved by a Senate committee today would make it even harder. With a big push from the Texas Chemical Council and the Texas Association of Business, the Senate Natural Resources Committee voted 6-3 today for legislation “streamlining” (read: weakening) the process that communities and environmental groups can use to challenge permits to pollute. (Democrats Rodney Ellis and Carlos Uresti as well as Republican Robert Duncan were the ‘no’ votes.)

“We are very disappointed by the committee’s vote today,” said Environment Texas Director Luke Metzger. “The deck is already stacked against residents when a powerful polluter applies for a permit to discharge chemicals in to our air, water and land.”

Senate Bill 957 by Sen. Troy Fraser (R-Horseshoe Bay) would put limits on contested case hearings, mini-trials in which each administrative law judges hear testimony and evidence from each side. Environmental groups already complain that the process is flawed: The judges can only offer recommendations to the Texas Commission on Environmental Quality. That agency, run by corporate-friendly Rick Perry appointees, often ignores or downplays the judge’s proposals.

However, SB 957 would weaken it even further. Fraser’s proposal would shift the burden of proof from the company seeking the permit—often some of the most lucrative and powerful corporations in the world—to the protestant, often a hastily-formed grassroots group or an environmental organization. The bill would also strictly limit how long the contested case hearing could last; limit who could participate; narrow the scope of the hearing; and eliminate discovery.

Here’s SB957. It’s not the only polluter-friendly bill out there.

Some county governments have found that when it comes to suing corporations over polluted property, hiring a private law firm on a contingency fee basis is the way to go.

But against the backdrop of a multi-billion dollar dioxin case in Harris County, there’s an effort to outlaw those arrangements in pollution lawsuits. The House Committee on Environmental Regulation has scheduled a hearing today on a bill that would ban counties from using private firms, HB 3119.

The bill has the support of the Texas Conservative Coalition Research Institute that compiled a report on what it calls the “dubious practice of employing private lawyers on a contingency basis.”

“The arrangement creates a variety of perverse incentives. A county faces no risk in bringing a suit and the outside, contingency-based counsel has no incentive to settle the suit,” said Brent Connett, communications director for the group.

The group argues that instead, contingency fee deals encourage private firms to enrich themselves at the expense of adequately funding the cleanup of toxic sites.

Harris County, which was the focus of the conservative group’s report, says contingency fee arranagements are vital to its efforts to litigate pollution cases.

“We don’t have money to go out and hire lawyers. You’re talking about, at a minimum, hundreds of thousands of dollars that we would have to spend up front just to go to court. With the contingency fee, we don’t have to do that. We only pay if we win,” said Terrence O’Rourke, special assistant to the Office of the Harris County Attorney.

[…]

[Harris County] points out that the big corporations fighting the suits often use very experienced, highly-paid attorneys.

“They’re spending millions on their lawyers and Harris County can’t afford that. We’ve got contingent fee lawyers,” says O’Rourke, the county’s special assistant.

The point of taking cases on contingency is that it only pays to take cases you think can win. Otherwise, it’s a lot of hours down the drain for nothing. One could argue that it’s the attorneys for the polluters that have no real incentive to settle, since they get paid by the hour. But maybe as a compromise, we could set up a public defender system for the businesses that find themselves plagued by these suits, to represent them free of charge. Think the polluters would go for that? Yeah, me neither.

Here’s the Chron on these two bills:

“It surprises me a little bit because there is no history of us settling cases in opposition to the attorney general or against the wishes of the attorney general,” said Rock Owens, who heads the environmental division in the Harris County Attorney’s office, which historically has filed the most civil environmental lawsuits in the state.

Owens said the legislation would diminish an authority local governments have had for decades to punish environmental offenders, and also make for an uneven playing field as governments cannot afford to pay private attorneys on an hourly basis like the companies they sue.

While the county has been filing environmental cases for a long time, it only recently began recruiting outside counsel. Six cases have been relegated to private firms.

[…]

Harris County Judge Ed Emmett said the county has not taken an official position on hiring outside lawyers on a contingency fee basis, but that all counties “ought to be able to make those decisions on their own.”

Once again I note the irony of people who rant and rage about the federal government telling Texas what it can and can’t do but who are lining up to tell various local governments, often in localities far from their own home districts (Rep. Cindy Burkett, author of HB 3119, is from the suburbs of Dallas), what they can and can’t do. The good news is that SB957 likely won’t get past the Senate’s two-thirds rule, while HB3119 hasn’t yet been voted on in committee. If we’re lucky, it won’t have enough time to make it through, or it too will die from insufficient Senate support. But until they both do die, they’re menaces to be watched.

Meet SWIFT

SWIFT is the State Water Infrastructure Fund for Texas, which would be created by the big water bills of the session, HB4 and SB4. Basically, this is a plan to create a water infrastructure bank, to finance various water projects that the state needs at low interest, with some seed money from the Rainy Day Fund to get started. So far the proposals have been met with approval by the various stakeholders.

A parade of Texas mayors on Tuesday urged state lawmakers to invest $2 billion in reservoirs, pipelines and other water-supply projects.

Houston’s Annise Parker, San Antonio’s Julian Castro and other mayors said the passage of House Bill 4, which would create a fund to help pay for water-related infrastructure, is necessary to satisfy the demands of residents and businesses.

“We are not going to wait, but it sure would be nice to have the state with us,” said Parker, who said Houston is moving forward on water projects. “If the rest of the state does not make the same efforts we have, we may lose our competitive advantage.”

[…]

State Rep. Allan Ritter, a Nederland Republican who filed the bill, said a $2 billion capitalization could finance the state’s entire long-range water plan, which identifies 562 projects at a cost of $53 billion over the next half-century.

The initial $2 billion would come from the state’s rainy day fund

The projects would be selected by the Texas Water Development Board but would be locally owned and controlled, Ritter emphasized.

“They need help in what I call ‘getting over the hump,'” he said of the financing challenge water providers face with projects that can cost hundreds of millions of dollars and take years to complete.

There’s a lot of money at stake, and any time there’s a lot of money at stake, there are many competing interests for it.

“We can’t afford to pit one [group] against another,” said Laura Huffman, of the Nature Conservancy. “A growing state is going to want to eat, drink and turn the lights on.”

Much will depend on whether key lawmakers—Rep. Allan Ritter (R-Nederland) and Fraser in particular—can craft a fair structure for distributing what will likely be billions of dollars over the coming decades.

“I think it’s like most of the issues that come before this body,” said state Rep. Doug Miller (R-New Braunfels). “Follow the money.” Austin American-Statesman reporter Asher Price did just that. He found that one of the organizations behind the push for a state water bank, H2O4Texas, is funded by “industries that stand to benefit from massive projects to move water around the state.”

That’s not terribly surprising but suggests that legislators will have to be careful to guard against allowing the water bank to turn into a slush fund.

The key word is: prioritization. The state water plans lists 562 distinct water projects, a wish list drafted by hundreds of “stakeholders” organized into 16 regional water planning groups. Those projects are the essence of the plan. But how do you pick which ones to fund? What form does the funding take—grants, loans, etc? Which projects get funded first? Do conservation-focused projects receive a leg up or is the money going to flow into new reservoirs?

Ritter’s legislation, House Bill 4, has been praised by environmentalists for requiring that at least 20 percent of the funds go toward water conservation.

Sen. Fraser’s legislation, Senate Bill 4, would create a fund outside of the state treasury but would put the Texas Water Development Board in charge of prioritizing the projects. But Fraser repeatedly complained today that the board is ill-equipped to take on such a huge task. Fraser said he’d had trouble getting a simple list of water-supply projects that the board considers top priorities.

Under Senate Bill 4, the Water Development Board would be run by three full-time commissioners instead of six part-timers. It would also set up a nine-member advisory committee to recommend water projects to the full board. Other senators, however, piled on Fraser’s proposal, leading him to stress that it was a work in progress and likely to be negotiated until the bitter end.

This AP report goes into more detail about conservation and highlights a potential stumbling block for the legislation.

Luke Metzger, director of the advocacy group Environment Texas, told the Senate Natural Resources Committee on Tuesday that it was critical that the state emphasizes conservation and ensures enough water is left behind for the eco-system. He pointed out that large-scale water projects, such as new reservoirs, can have a negative impact on the environment.

“In 1968, the State Water Plan predicted that by the year 2020 you would need 32 million acre-feet of water. Of course it’s almost 2020 now, and we’re only using 18 million acre-feet,” he said. “It’s critical that in planning for the next 50 years, we are flexible and we’re careful not to burden Texans in the future with huge debts for projects we might not need.”

He pointed out that San Antonio grew by more than 65 percent while still using the same amount of water and said other cities could follow that model. He said plans are for the state to meet 34 percent of future water needs through conservation and called on the committee to set aside that much of the new water fund for projects that save water.

Just fixing leaky water mains could save enough water for 2.7 million Texans, Metzger said.

[…]

So far no group has come out against creating what would be called the State Water Infrastructure Fund for Texas, or SWIFT. But the measure may require Republican lawmakers to vote in favor of lifting the state’s constitutional spending limit, which many conservatives do not want on their record.

Have I mentioned before that artificial spending and revenue caps are stupid and destructive? This is another illustration of why. The issue here is whether appropriating money from the Rainy Day Fund would count towards the revenue cap, which mandates that spending can only grow so much from one biennium to the next. Use of the Rainy Day Fund wasn’t originally intended to be included in such calculations, but the fanatics who rule over Republican primaries don’t care for such subtleties, so the issue remains a potential roadblock for doing the things the Lege has said it wants to do.

Can we take a step forward without also taking one back?

From last week’s Texas Tribune on the subject of plastic bag recycling.

On Tuesday the Senate’s Committee on Natural Resources heard testimony on a bill sponsored by the committee’s chairman, state Sen. Troy Fraser, R-Horseshoe Bay, that would require large retailers like Wal-Mart to have well-labeled bag recycling canisters in their stores. This afternoon the House’s Environmental Regulations committee heard testimony on a similar bill, sponsored by Rep. Kelly Hancock, R-Fort Worth.

“It encourages more eco-friendly behaviors,” said Hancock, who said that plastic bags cannot be recycled at curbside. It was a “free market-based solution,” he emphasized, that would result in more bags being recycled and made into items like benches or flower pots.

Environmental groups, however, oppose the bills because a clause at the end of both would “preempt” local rules that are in conflict with the bill. They fear this would prevent cities from banning the bags outright. Already, Brownsville has instituted a plastic bag ban, which took effect in January, and two other locations — Fort Stockton and South Padre Island — have approved bag bans that will come into effect in the coming months.

“We shouldn’t tie the hands of local communities trying to reduce solid waste,” said Luke Metzger, director of Environment Texas, in an email. Metzger did not testify but opposes the bill.

Fraser said that the bill aimed to bring a “transition” period for plastic bags. “We’ve got plastic bags in the system and we’re moving toward trying to eliminate them,” he said.

But Sen. Kel Seliger, R-Amarillo, noted that there was “nothing in this bill that eliminates plastic bags in the waste stream,” and he feared that cities wanting to ban bags would be preempted from doing so under the bill’s language. Fraser said the three cities with bag bans would not be preempted, but it appeared that other cities that moved to ban bags in the future would be preempted.

Large retail groups like Wal-Mart and the Texas Restaurant Association back the bill, and several bag manufacturers also testified in favor.

I’ve noted the Brownsville and South Padre bag-banning efforts; Fort Stockton was news to me. Fraser’s bill is SB908; it was approved by the committee and is on the intent calendar for tomorrow. Hancock’s bill is HB1913; it’s still in committee. While there are times when it makes sense for the state to establish a single standard for something and in doing so override what cities have done, this isn’t one of those times. I’m confident that this provision is in there to get support from those large business interests. I’d prefer the Lege take no action at this time than take a step to prevent other cities from following Brownsville or South Padre or Fort Stockton’s example. Let’s let there be some experimentation to see what works best, and let’s leave some flexibility in place for the future rather than impose a one-size-fits-all solution. We should have bag recycling dropoffs at these locations, but we should be allowed to have more than that if we want it as well.

Some reactions to LBB recommendations

The Statesman asks around about three of the Legislative Budget Board recommendations for raising revenue. First, the suggestion to allow liquor sales on Sunday, which it projects would generate an extra $7.4 million. Not surprisingly, the liquor industry favors this, but some others don’t:

David Jabour, president of Austin-based Twin Liquors, said the demand wouldn’t be high enough to warrant another business day.

“Based on some analysis that we have done, it would actually simply spread the business over seven days,” Jabour said.

Jabour also said the guarantee of having Sundays off attracts higher quality employees.

Suzii Paynter, director of the Christian Life Commission of the Baptist General Convention of Texas — a group that opposes the expansion of alcohol availability — said the money raised by Sunday sales would be a drop in the bucket. By comparison, raising the tax on beer to a level similar to the tax on cigarettes would bring in nearly $700 million, she said.

I can’t address Jabour’s argument about Sunday sales cannibalizing other days’, but I will note that being allowed to open on Sunday doesn’t mean you have to be. As for Paynter, that isn’t actually an argument against. She’s right, higher taxes on beer would raise more money, but 1) there’s no way in hell that will happen, and 2) even if that were an option, there’s no reason you couldn’t allow Sunday liquor sales as well. It’s not an either-or choice.

Then there’s the recommendation of a fee on gas guzzlers:

Environment Texas director Luke Metzger said heavier gas-guzzlers tend to cause more wear and tear on roads.

“If the direction lawmakers are going is increased fees, that’s one fee that certainly makes sense — as a way to recoup from the damages they cause and to encourage the production of more environmentally friendly vehicles,” Metzger said.

Metzger said his group would prefer that lawmakers “take on some of the biggest polluters with direct taxes on the industries themselves, rather than regular Texans. But this is a reasonable next-best policy we could hope for.”

Yeah. Too bad this will never happen, because I think it’s a great idea, too. I just can’t see anyone on the Republican side touching it with a ten foot pole.

Finally, there’s suspending the sales tax holiday:

Dick Lavine, senior fiscal analyst at the Center for Public Policy Priorities, which advocates for low- and middle-income Texans, said the holiday was originally intended to help lower-income families. But most of the savings actually go to higher income families that can afford to purchase a full year’s worth of school supplies and clothing tax-free, he said.

Lavine said the cost to the state is not worth keeping a holiday that doesn’t help families that already carry a disproportionate share of the burden of the sales tax.

He said the additional revenue “could make a large difference in any of the programs that are being threatened with cutbacks or being shut down.”

I must admit, I hadn’t thought of it that way. This perspective makes me a lot more favorable to the idea. But as with the gas guzzler surcharge, I have a hard time seeing it get passed. In another year, with a different legislature, maybe. Not this time.