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Injunction ordered in Skull Creek lawsuit

Hope this helps.

Three months after the waters of Skull Creek first turned black, a Travis County state district judge issued a temporary injunction Tuesday against Inland Environmental and Remediation and David Polston, its president, requiring the company to stop accepting waste and halt any further polluting of the creek.

The injunction prevents Polston from storing or processing any waste at the company’s site near Altair, just south of Columbus, in a manner that “causes, suffers, or allows discharge into or adjacent to waters” in the state. The agreement – reached between the Texas attorney general’s office, the Lower Colorado River Authority and Polston’s lawyers – also requires the defendants to “abate and contain all spills and discharges at the site” and start removing and properly disposing of waste.

Inland processes oil and gas drilling waste and turns it manufactured products like road base, according to its website. Its site is adjacent to Skull Creek, which flows for more than 10 miles before emptying into the Colorado River, which ultimately flows into Matagorda Bay, a popular fishing and boating spot on Texas’ Gulf Coast.

Under the injunction, every Monday Polston is required to submit progress reports to the Texas Commission on Environmental Quality, the LCRA and the attorney general’s office detailing the actions Inland has taken to comply with the injunction’s stipulations. They include assessing the extent of the contamination, removing road base material along the creek and creating a detailed inventory and a map of all waste at the site.

“I hope I have not left any doubt in your mind as to how serious I am taking this – the court is taking it,” Judge Dustin Howell told lawyers on Tuesday. “Certainly, having heard the day of evidence that I heard yesterday, it’s obvious that there is something that needs to be addressed here.”

See here for the background. This is just an injunction pending the outcome of the lawsuit, for which the court set a January 2020 date to proceed. Be sure to check out the Colorado County Citizen for ongoing coverage of this issue.

What’s going on in Skull Creek?

Here’s a story from a couple of weeks ago that you may have missed. I know I missed it until it was pointed out to me.

For more than two months, the waters of Skull Creek have flowed black, its surface covered in an iridescent sheen. Yellowed fish skeletons line the pebbled banks of the Colorado River tributary, and a dizzying chemical odor hangs in the air.

The odor is so strong that Julie Schmidt says she can smell it inside her house.

She and her husband bought 10 acres along the creek in December with visions of an idyllic country upbringing for their children, ages 10 and 2. Now, she isn’t sure they should play outside.

“Last summer, you could go into the creek behind the house and it was crystal clear. You could play in it, you could fish,” said Schmidt, who moved from nearby Garwood and has lived in Colorado County her entire life. “Now you don’t want to touch it. You pick up a rock, turn it upside down, and it’s completely black.”

Locals and elected officials in this small southeast Texas community near the intersection of Interstate 10 and Texas 71 say the source of the problem is obvious: an oil and gas waste recycling facility near the creek that is owned by Columbus-based Inland Environmental and Remediation. Although Inland has denied wrongdoing, the Texas attorney general sued the company Friday — 10 weeks after citizens first began complaining — alleging the company illegally discharged industrial waste into the creek and stored that waste without a permit.

On Friday, a state district court in Travis County granted a temporary restraining order against the company and its president, David Polston, saying he must “cease and prevent all discharges of waste” from the site into state waters.

The state’s lawsuit seeks monetary damages of up to $1 million.

The Texas Railroad Commission ordered the facility to stop storing oil and gas waste in 2017 as a result of a bankruptcy court reorganization. (The permit was held by Boundary Ventures, a company at the same location that lists Polston as its president and director.)

Records obtained by The Texas Tribune show that the Texas Commission on Environmental Quality dispatched inspectors to the facility Feb. 10 — the same day that Colorado County Judge Ty Prause says he made a formal complaint — and hand delivered a letter two days later demanding that Polston take immediate action to halt the discharge of waste into the creek. The letter described conditions at the facility as an “imminent threat and substantial endangerment to human health and/or the environment.”

But Prause, the county’s chief executive, said the agency left him and other officials in the dark for weeks about the origins of the pungent substance and what guidance he should give to his constituents to protect themselves.

“It’s hard to imagine that the state agencies in charge of protecting our environment and natural resources in Texas would not act quicker to tell people that live on this creek whether there’s a threat to their health or their livestock,” said Prause, who oversees emergency response for the county.

I encourage you to read the rest. Most of the coverage of this story has come from the Colorado County Citizen, with reporting by my friend and former blogging colleague Vince Leibowitz, who was the one to alert me to all this. Their first story, about the appearance of the black water and dead fish, is here, datelined February 15. The litigation referred to in the Trib story is ongoing, and I hope it will help uncover the truth about what happened, and hold the parties responsible for it to account. As Leibowitz wrote in an editorial, the “alphabet soup” of state agencies that have authority here have not been doing a good job, with the exception for the most part of the Railroad Commission. I don’t know what it’s going to take to figure out and clean up a big toxic waste spill like this, but we sure need to get on it.

Another view of pollution enforcement

The state has its role, but it’s not all on them.

Almost two months before a massive chemical fire erupted in Deer Park, sending a dark plume of smoke over much of Harris County, Precinct 2 Commissioner Adrian Garcia asked the head of the county’s Pollution Control Services Department what additional resources he needed.

County officials were nearing the end of a third day of annual budget hearings and Garcia was concerned the department lacked the manpower and equipment to properly monitor air quality in his eastern precinct, let alone the entire county.

So, he asked Director Bob Allen for a wish list.

“Nobody’s ever asked me that before,” Allen replied at the Jan. 11 hearing in the Commissioners Court chambers. He said the department could use additional air monitors — especially mobile ones — and noted Pollution Control had fewer employees than in the 1990s.

Garcia last week said he was struck by Allen’s “deer-in-the-headlights look.” He wondered why previous Commissioners Courts had not pressed Allen for more details, and why he appeared unprepared to outline an ambitious vision for Pollution Control.

In the end, the court in February approved a 28 percent budget increase for the small department, giving Allen an additional $1.2 million. The department inspects facilities and enforces state and local air, water, solid waste and storm water regulations.

The investment made little difference four weeks later when a storage tank farm at Intercontinental Terminals Co. ignited on March 17, burned for more than 60 hours and sent Harris County emergency responders scrambling to monitor pollution and keep the public informed of dangers.

The ITC fire, followed by a fatal explosion and blaze at the KMCO plant in Crosby two weeks later, tested the capabilities of several county departments and spurred the longest activation of the emergency operations center since Hurricane Harvey.

County leaders said Pollution Control, however, was uniquely unprepared for the fires. Department staff were unable to quickly test air quality and report results to the public, forcing the county to hire outside consultants and design a website from scratch. Garcia said he lost faith in Allen’s leadership.

Unlike the city of Houston and federal Environmental Protection Agency, Harris County had no mobile air monitoring vehicle especially useful in emergencies. Five of the county’s 12 ozone monitors were broken, and Pollution Control’s fast-response team consisted of four members.

“We do not have the staff to sustain a response to the scale of ITC,” said Craig Hill, field manager for Pollution Control. He estimated the conflagration — which required the assistance of Louisiana firefighters to extinguish — was the largest the department had ever encountered.

The ITC fire was the first major emergency for Harris County Judge Lina Hidalgo, who said the incident exposed significant gaps in the county’s capabilities. Hidalgo said residents shared concerns about daily air pollution, let alone from chemical fires, at a February town hall in Pasadena. She said county government in the past has taken a too-lax approach to potential disasters at industrial sites along the Houston Ship Channel.

“We’re not just going to hope that this doesn’t happen again,” she said. “We’re going to do a thorough analysis and share the results, and do that quickly.”

There’s a lot more, so go read the rest. Here’s that website that the county got set up to track air quality results, in case you’re curious. It’s amazing, and in many ways quite telling, that none of this capability had existed before. We’re pretty good on disaster preparedness when the disaster is a weather event, which we can usually see coming. The man-made kind of disaster, which let’s be honest should be at least as predictable given what we do in this county and the lax enforcement around it, we’re caught flat-footed. I for one am very glad to see that’s no longer the case.

County brings charges related to ITC fire

Bring it on.

Kim Ogg

Responding to what it called “criminal levels” of contamination, the Harris County District Attorney’s office said Monday that it has charged Intercontinental Terminals Company with five misdemeanor counts of water pollution arising from a March plant fire that sent toxic chemicals into nearby waterways and a thick plume of smoke over the Houston area for days.

“The discharge from the ITC fire into Tucker Bayou is a clear water pollution case,” said Alex Forrest, the environmental crimes division chief for the DA’s office, in a written statement. “We are looking forward to reviewing the reports of other local and federal agencies, as they complete their investigations, so that we can determine if other charges will follow.”

The charges are the most recent example of District Attorney Kim Ogg’s more aggressive approach toward chemical companies in the aftermath of environmental disasters that have outraged the public and drawn national attention.

“This is the beginning of our review, not the end,” said Dane Schiller, a spokesman for the DA’s office.

According to the DA’s Office, water pollution in Tucker Bayou was at “criminal levels” from March 17 through March 21. Prosecutors filed one count for each of the five days the company allegedly violated the law at its Deer Park plant. Each charge carries a fine of up to $100,000.

“People living in Deer Park and the other neighboring residential areas near ITC’s plant deserve protection,” Ogg said. “When public health is at risk, it’s a public safety concern.”

An attorney for ITC, which stores petrochemicals for companies including Chevron, Philips 66 and Exxon, defended its efforts.

“Although we have not seen the charges, there is no question that there was a large fire and an enormous effort to extinguish it which resulted in a discharge into Tucker Bayou,” said Michael Goldberg, an attorney for ITC, in a written statement.

[…]

Monday’s court action against ITC marks the second time Ogg has pursued criminal charges against Houston-area companies in high-profile pollution cases. After a chemical fire during Hurricane Harvey in 2017, Ogg brought a criminal case against the chemical company Arkema and two of its executives for the “reckless” release of an air contaminant.

Investigators found that the company’s emergency plan provided little direction to employees on how to handle major floods, and as a result, it couldn’t keep combustible organic peroxides cool, according to federal documents. Over the next week, nine trailers of organic peroxides erupted in flames, sending pillars of fire and thick plumes of black smoke into the air.

Prosecutors recently charged the company and a third executive with reckless assault, citing injuries sustained by two deputies who responded to the scene based on the company’s assurances. Company officials have defended their actions in both suits and accused Ogg’s office of prosecutorial overreach.

See here for more about the Arkema indictments, which as far as I know have not progressed past that stage yet. These charges came right after Kim Ogg requested more environmental prosecutors. I don’t know if the one has to do with the other, but either way I expect that division to be busy. It’s one thing to file charges, it’s another to get convictions, and still another for those convictions to withstand appeal. We’ll keep an eye on these.

Prosecuting polluters

It really shouldn’t have to come to this, but here we are.

Kim Ogg

The Harris County District Attorney’s office is calling for a tripling of the number of prosecutors dedicated to environmental crimes in the wake of a series of chemical plant fires that has raised public health concerns.

In a letter Thursday to the county judge and commissioners court, Vivian King, the chief of staff of the district attorney’s office, requested $850,000 to fund eight new positions: four prosecutors two investigators and two paralegals. The county currently has two prosecutors and one administrative assistant devoted to environmental crimes. The request is scheduled to come before the commissioners court on Tuesday.

On March 17, an Intercontinental Terminals Co. tank farm in Deer Park caught fire and burned for several days, closing the Houston Ship Channel and drawing national attention. No injuries were reported. A couple of weeks later, one person was killed and two others were critically injured when the KMCO chemical plant in Crosby caught fire. A fire also broke out at Exxon Mobil’s Baytown refinery in mid-March but was contained hours later. The investigations are ongoing.

“With Arkema and ITC and all of the alleged criminal acts intentionally polluting our waters supply with cancer agents, we don’t have the staff to investigate and work on these cases,” King said during an interview.

The DA’s environmental crimes division handles 400 to 500 cases a year, the bulk of which are related to illegal dumping and water pollution perpetrated by smaller companies or individuals — not the big corporations, King said.

[…]

Traditionally the county has not criminally prosecuted the large petrochemical industry, King said.

She stressed that the DA’s office welcomes an industry that’s a major source of employment and an important contributor to the area’s economy.

“However,” she added, “as public servants we get a lot of complaints about the very few companies that commit criminal acts by intentionally not following laws and regulations governing hazardous waste and chemical emissions and putting cancer agents in our water supply and the air we breath.”

And they currently don’t have the staff to handle it all, even less so to take on the big cases. A private attorney is working pro bono on a case involving Arkema.

Let’s be clear, it would be best if most of this work were done by the TCEQ. If they were an agency that took their mandate seriously – and, let’s be clear again, if the mandate they were given by the state were more serious – they would be in position to reduce the risk of catastrophes like these. Better enforcement up front is always the better way to go. In the absence of that, and with constraints on civil action, what other option is there for the most egregious offenders? If and when the state does its job, entities like the Harris County DA will be able to back off. This request was part of the larger ask for more prosecutors that was rejected in February. It was unanimously approved by Commissioners Court yesterday, so that’s good. I suspect there will be no shortage of work for this team.

Using floodplain rules to force environmental safety compliance

A county’s gotta do what a county’s gotta do.

Harris County officials are using flood control regulations passed after Hurricane Harvey to delay the reopening of two chemical companies where fires erupted in recent weeks, killing one worker and sending large plumes of black smoke into the Houston area.

The Harris County Attorney’s office cited the post-Harvey rules on floodplain construction and stormwater drainage in its civil lawsuits against KMCO and Intercontinental Terminals Co., where cleanup is still ongoing after the fires.

“We don’t shy away from going after the biggest, baddest companies out there,” said Harris County Attorney Vince Ryan. “It sends a message to everyone.”

The county is digging through maps and available data to determine if both companies are in a floodplain. The new regulations put chemical facilities that are in a 500-year floodplain under tighter scrutiny.

The drainage rules restrict discharges of hazardous materials into the county’s stormwater system. If a company is found to have discharged hazardous materials, it can be cited by the county. Larger releases could lead to additional legal action.

The floodplain rules apply to more than facilities with fires and toxic releases and can force companies to meet new requirements when seeking to expand or change an existing facility, said Rock Owens, managing attorney for the Harris County Attorney’s environmental section.

The story doesn’t go into detail about what compliance issues there are and how long they may take to resolve. You may be thinking “why doesn’t the county file a lawsuit against these companies to force them to fix their problems?” The answer is that this used to be how things went, but your Texas legislature has taken steps to shackle counties and their enforcement efforts.

But in 2015, the state Legislature started taking away authority from the local governments. Lawmakers approved a bill capping the amount of money a local government could receive from civil penalties sought in environmental cases.

In 2017, another bill passed forcing local authorities to ask permission from the Texas attorney general before seeking penalties. If the attorney general’s office does not file its own suit in 90 days, the local government can go forward with a civil suit.

Lawmakers are currently considering two bills that would restrict local governments even more.

House Bill 3981, filed by state Rep. Jeff Leach, R-Plano, would give the attorney general the authority to settle lawsuits started by the county, without the approval of the county.

House bill 2826, filed by state Rep. Greg Bonnen, R-Friendswood and three others, would let the attorney general prohibit the county from hiring outside attorneys on cases.

“The concern isn’t that the local governments are intentionally causing any problems with these suits, just that a more efficient state-led effort may at times be more desirable,” said Justin Till, Bonnen’s chief of staff.

More desirable for the polluters, that’s for sure. Let’s be very clear, the main reason why bills like these get passed are specifically to muzzle Harris County’s enforcement efforts. (The city of Houston’s efforts were killed by the Supreme Court.) It’s a pollution-friendly Republican Legislature taking care of bad actors, aided and abetted by the business lobby. You know what I’m going to say next: Nothing will change until we change who we elect.

Explode, rinse, repeat

Here we go again.

A massive explosion at a chemical plant in northeast Harris County on Tuesday killed one person and sent two others to the hospital in critical condition, sparking a blaze that sent yet another plume of dark smoke into the sky and forcing residents to temporarily shelter in place.

The fire, ignited by a flammable gas called isobutylene at the KMCO chemical processing plant in Crosby, marked the third time in 17 days that a smoggy cloud of smoke emanated from a Houston-area chemical facility.

It is the first chemical fatality at a Houston-area plant since 2016, when a worker died in an incident at PeroxyChem in Pasadena. In 2014, four workers died at a DuPont plant in La Porte.

Responders extinguished the KMCO fire late Tuesday afternoon, while on-scene investigators with the Harris County Fire Marshal’s Office began conducting interviews to determine where the fire started and what caused the gas to ignite.

“There’s a lot of hot metal in there,” said Rachel Moreno, a fire marshal spokeswoman. “Until it’s safe for our guys to go in, they’ll continue doing interviews of everybody that was at work.”

The response will stretch Harris County’s resources, Moreno said, as the fire marshal’s office begins its second major investigation in less than three weeks. The site of an even larger conflagration at Intercontinental Terminals Co. in Deer Park less than 15 miles away on March 17 remains too unsafe for investigators to visit.

[…]

KMCO, a subsidiary of an Austin private investment firm, produces coolant and brake fluid products for the automotive industry, as well as chemicals for the oil field industry. Its facility, which has a history of environmental and workplace safety issues, sits about 13 miles away from the ITC plant, where Harris County officials continued to detect carcinogenic benzene this week.

The KMCO plant is less than three miles from the Arkema facility where a series of explosions spewed chemicals and sickened residents after Hurricane Harvey in 2017.

Let’s talk about that history, shall we?

“As long as I’ve been doing environmental work for Harris County, I’ve been involved in case with this company, either with the previous owner or the current owner,” said Rock Owens, managing attorney for the Harris County Attorney’s environmental section. “And I’ve been doing this for close to 30 years. This company has been around forever causing trouble.”

[…]

On Christmas Eve 2010, a runaway reaction sent three employees at the plant to the hospital. Workers there couldn’t lower the pressure in a reactor and, as they tried to fix a clogged line, they accidentally mixed a caustic solution with maleic anhydride, a normally stable chemical. The result was an explosion and fire. An explosion in 2011 sent two more workers to a hospital.

[…]

Since 2009, KMCO has paid out more than $4 million in fines or criminal penalties to local and federal regulators.

In 2017, the company pleaded guilty to criminal violations of the Clean Air Act filed by the Environmental Protection Agency and was ordered to pay $3.5 million. The violations were in connection to an explosion at its Port Arthur facility and air emissions at the Crosby plant.

The Occupational Safety and Health Administration has issued dozens of violations to KMCO since 2010 and fined the company about $250,000.

The facility is currently not compliant with the federal Clean Water Act. KMCO was in violation of the act for seven of the last 12 quarters, records show. It violated the Clean Air Act three times in the last 12 quarters. EPA data shows the facility also violated the Resource Conservation and Recovery Act in February 2018. That law regulates how facilities handle hazardous and non-hazardous solid waste.

[…]

Harris County first sued KMCO in 1987. The company was ordered to pay $49,750 for violations of the Texas Water Code.

The county sued the KMCO plant in 2008 for spills and fumes that gave neighbors headaches. The lawsuit ended in 2009 with a permanent injunction requiring KMCO to pay $100,000 in civil penalties and to give investigators easy access to the facility and prompt notification of releases.

The county sued again in 2013; that case is still ongoing. Owens said the county attorney’s office is still deciding whether to add Tuesday’s incident to the existing case or bring a separate case against the company.

“While there’s been actions before, it hasn’t been sufficient,” said Luke Metzger, executive director of Environment Texas, an environmental advocacy group. “We should, in the 21st century, be able to prevent these kinds of things from happening.”

A Houston Chronicle report from 2016 found that there’s a major chemical incident every six weeks in the greater Houston area.

You’d really like to think that we could prevent this kind of thing from happening, wouldn’t you?

Sunday, this editorial board demanded that state officials hold polluters accountable — and not just after a disaster.

We didn’t expect to be repeating ourselves so soon.

But this is what happens in a state where environmental regulators are toothless tigers. Where the TCEQ trusts polluters to police themselves — in part out of necessity, since lawmakers don’t adequately fund the agency. Where violators avoid sanctions and routinely endanger Texans’ health without our knowledge. Where Gov. Greg Abbott and Attorney General Ken Paxton talk tough, maybe even file a lawsuit after an incident makes headlines, but look the other way when the smoke clears.

At this rate, the smoke will never really clear. There will be another fire. And another.

Another round of parents fearing for their children’s safety. Another community fearing the effects of chemicals and pollutants they can’t pronounce. Another black eye to Houston’s already bad reputation as a place where one shouldn’t breathe too deeply, a place where profits outweigh concern for public health.

As we’ve pointed out, Texas facilities in 2017 reported releasing more than 63 million pounds of unauthorized air pollution — including chemicals linked to cancer, heart attacks and respiratory problems, according to a report by Environment Texas. But, in the past seven years, TCEQ issued fines in less than 3 percent of such events.

“These repeated, disastrous fires and explosions can no longer be called isolated incidents,” Luke Metzger, director of Environment Texas, told the editorial board Tuesday. “The Texas petrochemical industry has a serious, chronic problem, and Texas workers and citizens are paying the price. How many people have to die, get hurt, get cancer or suffer respiratory failure before the state takes this seriously and overhauls our broken system of oversight?”

Texans, these are questions for Abbott and our other state leaders. It’s up to us to demand the answers.

The only way to get the answers you need is to vote for those who will give them to you, and against those who won’t. If the choices aren’t clear by now, I don’t know what to tell you.

Harris County sues ITC over Deer Park fire

Go get ’em.

Harris County has sued Intercontinental Terminals Co. for failing to prevent a massive chemical fire that burned for more than 60 hours last week and spewed an unknown volume of hazardous chemicals into the air and nearby waterways.

The county is seeking a temporary injunction and restraining order against the company, alleging that it violated the Texas Clean Air Act and the Texas Solid Waste Disposal Act, among other rules.

The lawsuit accuses ITC of violating the state’s water code, health and safety code and administrative code on multiple days, by “causing suffering or allowing the discharge of at least one air contaminant without a permit and in such concentration and or such duration as to be injurious to human health, welfare or property, or as to interfere with the normal use and enjoyment of property.”

[…]

First Assistant County Attorney Robert Soard said his office will hire an in-house auditor to review ITC’s actions during and after the fire.

Soard also said Harris County will demand ITC cover the cost of the government’s response, which included frequent air and water monitoring, mobile clinics sponsored by the health department and an ongoing activation of the county’s Office of Emergency Management.

You can see a copy of the lawsuit here in the updated version of the story. I hope the county collects on every last penny. These guys need to be held accountable for their failures. Yes, I know, there is a state lawsuit as well, but this is about reimbursing Harris County, in the same way that your insurance company collects from the other guy’s insurance company when the other driver is found to be at fault in your fender-bender. If ITC doesn’t like it, they can do a better job of fire prevention in the future.

Meanwhile, on a semi-related note:

Harris County Judge Lina Hidalgo has been holding continuous press conferences on the Intercontinental Terminals Co. fire in Deer Park, delivering updates in both English and Spanish.

Despite the effort to communicate with Hispanic viewers, one area commissioner publicly criticized her use of Spanish during a recent press conference.

“She is a joke,” Chambers County Precinct 2 Commissioner Mark Tice said in a comment under a live feed of a press conference Monday afternoon. “English this is not Mexico.”

Tice admitted to making the comment Tuesday afternoon during a phone interview with Chron.com. He also doubled down on the message.

You know the old bit about how every New Yorker cartoon could be captioned “Christ, what an asshole!”? Well, as of today, anything Mark Tice says can be responded to by saying “Christ, what an asshole!” as well.

UPDATE: Tice has apologized following some blowback. My assessment of him has not changed.

State sues over Deer Park fire

Too big to ignore.

Late Friday, the state of Texas sued Intercontinental Terminals — the Houston-based company whose petrochemical storage facility in the suburb of Deer Park caught fire last weekend and burned for days, sending a dramatic plume of black smoke over the nation’s fourth-largest city.

The lawsuit, filed in state district court on behalf of the Texas Commission on Environmental Quality, alleges that air pollution released during the fire is a violation of the Texas Clean Air Act.

It seeks a permanent injunction and civil penalties that “could exceed $100,000.”

“The state of Texas works hard to maintain good air quality and will hold ITC accountable for the damage it has done to our environment,” Texas Attorney General Ken Paxton said in a statement. “ITC has a history of environmental violations, and this latest incident is especially disturbing and frightening. No company can be allowed to disrupt lives and put public health and safety at risk.”

Were you able to read that statement with a straight face? Then read this.

The TCEQ, the agency responsible for protecting the state’s environment and public health, has been criticized for letting large corporate polluters off with a slap on the wrist. An analysis of its enforcement record by an environmental nonprofit found that the agency imposed penalties on violators in just 3 percent of cases. ITC appears to have benefitted from the lax enforcement. In 2016, for instance, the company released more than 1,500 pounds of benzene — a carcinogenic chemical — for over five days and failed to notify the state agency within the mandated 24-hour deadline. The fine: roughly $4,000.

I’m just saying. Maybe some day when there aren’t new fires breaking out every time an old fire gets put out, we can get to the bottom of what happened here. And then sue these assholes out of existence. More broadly, maybe we can demand that our state take enforcement of environmental regulations seriously. If they had done so before, maybe we wouldn’t be in this position now. The Chron has more.

What’s wrong with the I-45 expansion plan?

Urban planner Jeff Speck, in a recent lecture in Houston, lays out the following problems with the planned I-45 expansion:

The brief list of negatives include:

I-45 will wreck your bayou parks.
I-45 will destroy wildlife habitat.
I-45 will make flooding worse.
I-45will impede neighborhood connectivity and access.
I-45 will reduce city revenues.
I-45’s bike facilities are a cruel joke.
I-45’s caps are not likely to succeed.
I-45 is so much money.

Other than that, though, I’m sure it’s fine. Chron writer Allyn West digs a little deeper into that last point.

In 2012, Houstonians were asked to vote on a $166 million proposition to pay for 150 miles of greenways along our bayous. In 2018, Harris County residents were asked to vote on a $2.5 billion proposition to pay for hundreds of projects that would help the entire region with flood control. This year, Metro says it will ask us to vote on a $3 billion proposition to pay for 20 miles of light rail extensions, 75 miles of bus rapid transit and other “systemwide improvements.”

The Texas Department of Transportation, too, is planning to spend $7 billion (and maybe more than that) to rebuild about 24 miles of freeways. The project will reshape roads between Midtown and Beltway 8, some of the most congested stretches in Texas, by merging Interstate 45 with Interstate 69 and rerouting them together northwest around downtown. Unlike with those greenways, flood projects or transit plans, TxDOT never had to ask permission from voters.

Because TxDOT doesn’t have to do that, its massive projects often ignore the reality of people on the ground — the thousands of Houstonians whose neighborhoods will be impacted both directly and indirectly as a result of the I-45 expansion.

“There has never been the same (political) pressure for specificity for highway projects,” Kyle Shelton, the transportation historian and the director of strategic partnerships at Rice University’s Kinder Institute for Urban Research, told me. Unlike transit, for example, freeways have historically been viewed and funded as a “public good.”

It should be noted that the city, the county, and Metro were and will be asking voters to authorize borrowing the money needed for those projects. Had they been funded out of their operating budgets, no vote would have been needed. The point West is making is that this makes the politics of these projects very different. TxDOT starts out with the assumption that it can do whatever it wants, as long as it goes through the regulatory approval process. TxDOT is required to solicit public feedback, and they do incorporate that into their designs, but it’s a lot harder to drum up public opposition and basically impossible to kill whatever it is they’re working on. That’s the nature of the system. It’s worth pausing for a moment and thinking about how the system might be different if, say, TxDOT and Metro – and we may as well throw in HCTRA and the other toll road authorities around the state – had identical hurdles to clear in order to build anything. I don’t know what that might look like, but it’s fair to say it would be different.

In the meantime, the final environmental impact statement for the I-45 project is now available on the project website. You have one last chance to give your feedback to TxDOT on it, so get moving before the 17th of March. Speck’s video will be available on the Kinder Institute YouTube channel, so go watch it when you can.

The recycling recession

Not good.

ScruggsImage3_ThreeWasteBins

A joint report by the trade groups American Chemistry Council and Association of Plastic Recyclers estimated that plastic bottle recycling decreased 3.6 percent last year, dipping to 2.8 billion pounds in 2017. The decrease is partially due to containers becoming lighter weight, but also because the rate of bottle recycling hasn’t grown significantly in recent years.

In “an exceedingly difficult year for plastic bottle recycling,” the report said, about 29.3 percent of plastic bottles were recycled in 2017, down about a half percentage point from a year earlier. Over the past five years, the rate of plastic bottle recycling has remained essentially flat.

“Americans are continuing to recycle and recycling behavior continues to grow, however there is also more material continuing to go into waste stream and plastics are growing,” said Steve Russell, vice president of the plastics division of American Chemistry Council, which represents chemical and plastic makers.

The report is here. A big part of the problem is China scaling way back on the recyclable materials it accepts, which has created an oversupply problem even as the recycling rate has stagnated. There needs to be more capacity for recycling in the US to deal with this. Getting people to do recycling properly – basic things like not throwing trash in recycling bins, for example – would also help. It’s a big deal, because there’s already way too much plastic waste in the environment, and that has all kinds of bad effects. We need to figure this out.

Distributing the VW settlement money

Good for some, less good for others.

Texas cities will soon get millions of dollars to help clean up air quality, but Houston officials say the plan for distributing all that money isn’t fair.

The money is coming from a settlement in the Volkswagen (VW) emissions cheating scandal. Local governments will be able to use the money to reduce emissions from their vehicles and other equipment.

The Texas Commission on Environmental Quality (TCEQ) plans to give the biggest chunk of the money – more than $73 million – to the San Antonio area, mainly because that city is closer than others to getting in line with federal pollution rules it’s currently violating.

Under the state’s plan, the Houston area, which has worse air quality, would get about $27 million.

The City of Houston says about a quarter of the cheating VW cars that were in Texas were driving in the Houston region.

“So we deserve at least a quarter of those funds, because we’re the ones that were harmed,” said Kris Banks, a government relations assistant with Houston Mayor Sylvester Turner’s office.

See here, here, and here for some background. Mayor Turner expressed his disenchantment with the amount allocated to Houston in a press release; you can see all of the city’s documentation on the matter here. The full TCEQ plan for the VW Environmental Mitigation Trust is here, or you can save yourself some time and read the Texas Vox summary of it. The TCEQ is still accepting feedback on the draft plan through October 8, so send them an email at VWsettle@tceq.texas.gov if you have comments. The Rivard Report has more.

What’s a little toxic waste among friends?

No big deal, right?

On the plus side…

The criteria Texas uses to determine how much — and whether — to clean up abandoned industrial facilities, waste dumps and other polluted sites are so lax that they may allow residential homes to be built in areas that neighboring states wouldn’t even consider safe for factories or oil refineries.

That’s according to a report by the Texas Campaign for the Environment Fund set to be released on Tuesday that compares benchmarks for more than 80 different pollutants that Texas, Arkansas, Louisiana, New Mexico, Mississippi and Oklahoma use to determine whether a site is contaminated enough to warrant cleanup and how much pollution should be removed from the soil or water there before it can be re-developed.

The overarching conclusion of the report: Texas’ formulas are “substantially weaker” than those used by almost every nearby state, in part because it tolerates a greater risk of cancer. That means that some polluted Texas sites that would be eligible for cleanup in other states may not be eligible here — and if the state does decide to clean them up, it may not remove as much pollution as its neighbors.

While some neighboring states — namely Arkansas and Oklahoma — rely on federal criteria, Texas uses its own benchmarks. Overall, they are so weak that Texas allows “pollution concentrations on land designated for residential uses that Louisiana, Arkansas, Oklahoma, and Mississippi wouldn’t even restrict to industrial uses,” the report found.

For example, Texas’ cleanup rules say that the ground at residential properties should contain no more than 69 milligrams of the carcinogenic petrochemical benzene for every 1 kilogram of soil; Louisiana, meanwhile, only allows 3.1 milligrams of benzene per kilogram of soil — and that’s for sites intended for industrial use.

The report comes a year after heavy rains from Hurricane Harvey flooded many polluted sites in the Houston area, sparking concerns about contaminants leaching into homes and waterways. And statewide, rapid urban revitalization and population growth means many contaminated sites are being remediated and redeveloped for both commercial and residential use.

You can see that report here. This right here is the reason why uniform federal standards are needed for some things. I don’t know about you, but I would not want to find out some day that the house I bought in some spiffy new development in, say, 2019, turned out to be in the 21st century version of Love Canal. Maybe if we insist on keeping the feds at bay we could elect some state leaders who cared about this sort of thing? Just a suggestion.

Deterring dumping

Tough problem, good use of technology.

[Radny] Scales, a Harris County Environmental Crimes Unit lieutenant, and his team of nine investigators depend heavily on video cameras to crack down on illegal dumping, a crime that disproportionally affects the city’s poorest neighborhoods.

The City Council voted last month to add 22 cameras to create a portfolio of nearly 150 total. Precinct 1’s nearly $600,000 program also includes a fleet of drones, as well as several full-time employees.

It’s paying dividends: A two-year program started in 2016 to catch those who illegally dump their trash in remote locations across Houston yielded 694 investigations and 396 charges.

“It’s been working for the city as a whole — better than what we thought,” said Jerry Davis, the councilman for District B, who initiated the program to catch illegal dumping.

The majority are people charged in the crime are private citizens: The average offender is a 50-year-old who dumps 75 pounds of waste, according to statistics the county provided. Contractors looking to dodge the expense of paying to throw away their garbage at a designated facility account for just 20 percent of offenders.

[…]

Beyond just being eyesores, illegal dumping sites present serious consequences, including being safety hazards and serving as a breeding ground for potentially disease-ridden mosquitoes, snakes and other wildlife. Dumping sites can also contribute to flooding and could potentially have a serious impact in future weather disasters.

“When you have drains that have been stopped up because people put furniture and tires and plastic, it’s going to cause flooding,” [Precinct 1 Constable Allen] Rosen said.

Illegal dumping is a big problem in some parts of the city, and has been for a long time. Video cameras are basically the only realistic hope for catching the perpetrators in the act, but it takes a lot of them because stuff gets dumped all over the place. It’s good some real resources being put into this, because it’s a real quality of life issue for a lot of people. I hope this is big enough and sustained enough to put a serious dent in the problem.

Harris County sues Arkema

Good.

Vince Ryan

Harris County filed suit Thursday against Arkema over chemical fires at its Crosby plant in the aftermath of Hurricane Harvey, saying the company violated a long list of environmental, safety and building regulations and put first responders at risk.

The lawsuit, filed in state district court, seeks up to $1 million in penalties and asks that Arkema be ordered to upgrade its emergency response plans, build stronger storage areas and set up a notification system for alerting nearby residents of future incidents.

About 300 homes were evacuated and more than 30 people hospitalized — including law enforcement — when a volatile chemical erupted into flames after the plant lost power and generators in Harvey floodwaters.

“This was a very dangerous situation,” County Attorney Vince Ryan said in a statement Thursday. “Arkema must take responsibility for its inability to ensure the safety of the people of the Crosby community and those who protect them.”

[…]

The company self-reported multiple emissions from the plant to the Texas Commission on Environmental Quality TCEQ during the disaster. Before the company lost control of its organic peroxides, floodwaters overwhelmed its wastewater treatment plant, resulting in industrial wastewater leaking into county waterways. Each separate fire resulted in air emissions from the facility.

Multiple new details were revealed in the county’s lawsuit. The county’s suit claims that Harris County Pollution Control Department detected air pollution outside of the mandated evacuation zone during the crisis.

It also says parts of the Arkema facility is located below base flood elevation, requiring permits the company did not have.

See here for more on the first lawsuit filed against Arkema. Commissioners Court authorized filing this lawsuit in late September. As I said before, I think Arkema needs to be held accountable for the things that it did and did not do that led to the many harmful environmental problems that resulted. Harvey was an unprecedented event and there likely wasn’t much they or anyone could have done to prevent consequences from it, but that doesn’t take them off the hook for their failure to be prepared. The Press has more.

Lamar Smith to retire

Good riddance.

Rep. Lamar Smith

U.S. Rep. Lamar Smith, R-San Antonio said Tuesday he is retiring from Congress.

“For several reasons, this seems like a good time to pass on the privilege of representing the 21st District to someone else,” he wrote in an email obtained by the Tribune. “… With over a year remaining in my term, there is still much to do. There is legislation to enact, dozens of hearings to hold and hundreds of votes to cast.”

Smith, a San Antonio native, received his undergraduate degree from Yale and attended law school at Southern Methodist University. He was elected to Congress in 1987 and represents a district that spans Austin, San Antonio and the Texas Hill Country. He is the current chairman of the U.S. House Science, Space and Technology Committee.

Like U.S. Rep. Jeb Hensarling, the House Financial Services chairman who announced his retirement on Tuesday, Smith faced a term-limit in that role.

[…]

Speculation immediately began among Texas GOP insiders about who could succeed Smith in his seat. Names included state Reps. Jason Isaac and Lyle Larson, and Austin City Councilwoman Ellen Troxclair.

State Sen. Donna Campbell’s name was also put in play. A spokesman for Campbell said she “will carefully and prayerfully consider what is best for her and the district.”

Austin-based communications consultant Jenifer Sarver, a Republican, confirmed that she’s “taking a serious look” at running for the seat.

The question on many insider’s minds is whether retiring state House Speaker Joe Straus would consider a run, but sources close to him said Thursday he is not interested.

Smith’s 21st Congressional District runs from South Austin along the west side of I-35 into San Antonio and extends westward into the Hill Country. The district was drawn to be a safe Republican seat, but there is a competitive Democratic primary this year with viable fundraising candidates. One of the Democratic challengers, veteran Joe Kopser, raised more funds than Smith in the last quarter.

Democrats have argued for weeks that if more Republicans retire, they have a better shot at those open-seat races.

Is this one of those races? It’s too soon to tell, Democratic sources around the Capitol told the Tribune.

This district would be incredibly difficult to dislodge, but perhaps not as hard as a lift as a conservative East Texas bastion such as Hensarling’s seat. Democrats will prioritize dozens of other seat before they spend on this one, situated in the expensive Austin and San Antonio markets.

The early read from Democrats in Washington: It would have to be an absolutely toxic environment for the GOP next year for this seat to flip.

Let’s be clear: Lamar Smith is terrible. Not just for his longstanding enmity towards the environment, which the story covered, but also for his equally longstanding hostility towards immigration. Of the names mentioned as potential Republican candidates to replace him, only Donna Campbell is clearly worse. That said, it is hard to beat an incumbent, and his departure ought to make the path a tad bit easier for someone like Joseph Kopser. CD21 was red in 2016, but not as red as it has been. Trump carried it 51.9 to 42.1, while Mike Keasler on the CCA won it 56.7 to 38.1. In 2012, it was 59.8 to 37.9 for Mitt Romney and 58.6 to 36.6 for Sharon Keller. Whether that’s enough to draw national attention is another question, but adding Smith’s name to the pile of leavers does help further the “abandon ship” narrative. I only wish he had done so sooner. ThinkProgress, which goes deeper on Smith’s extreme pro-pollution record, has more.

Harris County files lawsuit against Arkema

More trouble for that nasty and troublesome chemical plant.

Harris County Commissioners Court on Tuesday authorized the county attorney to file a lawsuit against Arkema over its struggles to manage stores of hazardous chemicals during Hurricane Harvey.

The county’s Pollution Control Services Department found serious violations of the Texas Clean Air Act by Arkema, County attorney Vince Ryan said in a statement. The county will try to recover the costs from responding to the crisis at the company’s Crosby plant. It will ask the court to review Arkema’s emergency preparedness plan and its environmental practices. The commissioners made the decision to approve the suit as part of its agenda wide unanimous vote.

“We’ve shown if you’re a bad actor, we’ll hold you accountable,” said Precinct 2 Commissioner Jack Morman.

[…]

Arkema lost control of its Crosby facility after floodwaters cut the power and wiped out its back up generators. With the power out and cooling systems failing, volatile organic peroxides exploded multiple times over a week, producing towering pillars of fire and thick plumes of black smoke.

A 1.5 mile evacuation zone was set up when government officials got access to the company’s chemical inventories. About 300 homes were evacuated during the crisis.

“During the height of this storm event, we had to have literally dozens of first responders tied up at this facility when they could have been in other areas of the county,” said Rock Owens, managing attorney for the county attorney’s environmental group.

Arkema’s claims that there was no way to anticipate six feet of water inundating the Crosby plant isn’t believable, Owens said. “We all knew for a week that we might get up to 50 inches of rain,” he said. ,” Owens said. “That’s not true. We all knew it was coming.”

See here for some background. Basically, the allegations in this lawsuit and the one filed by first responders are that this plant was woefully inadequate on safety measures, and they covered up their inadequacies as much as they could, which put residents and those first responders in needless danger. I would very much like to see them held responsible for this.

Lawsuit filed over Crosby plant explosion

This ought to be fun to watch.

Seven first responders who were exposed to fumes from a chemical fire last week at a Crosby, Texas, manufacturing plant have filed suit against the plant’s owner, alleging that the company’s negligence caused them “severe bodily injuries.”

The plaintiffs, who include police officers and medical personnel, say in the lawsuit that when they were dispatched to the Harvey-flooded Arkema chemical plant in the early hours of Aug. 31, they were not alerted that more than one explosion had already taken place. Exposed to strong fumes, they “began to fall ill in the middle of the road,” and “police officers were doubled over vomiting, unable to breathe.” The suit also states that medical personnel “became overwhelmed, and they began to vomit and gasp for air.”

According to the Harris County Sheriff’s Office, 15 sheriff’s deputies were sent to the hospital and released later on the morning of Aug. 31. Company officials described that smoke as “a non-toxic irritant,” and Harris County officials compared it to what escapes a campfire or barbecue pit.

The plaintiffs claim that the company never warned them of “toxic fumes” present on the site. Company officials, as well as state and federal government agencies, have maintained over the last week that they have not found “toxic concentration levels in areas away from the evacuated facility.” The company has been criticized for its refusal to disclose certain chemical safety documents. Arkema CEO Rich Rowe has described this as an attempt “to balance the public’s right to know with the public’s right to be secure.”

I haven’t followed this particular aspect of the Harvey disaster and aftermath. There are some links to other Trib stories at the end of this one, or just Google “Arkema explosion” to get caught up. The crux of the issue is one part lax oversight, by both Arkema and the state, and one part lack of disclosure about what hazards were present. If you’re thinking we’ve been down this road before, you’re right. I am mostly interested to see if anything has changed since the last major plant explosion. I don’t expect it – let’s not be naive – but we do live in a different world now, so you never know. ThinkProgress and the Lone Star Project have more.

One for the road

How about one last lawsuit against the federal government, for old times’ sake?

Best mugshot ever

Texas Attorney General Ken Paxton on Tuesday announced he, along with 13 other mostly Republican-led states, would sue the federal government yet again to block a recently finalized federal rule limiting coal mining near waterways.

The Office of Surface Mining Reclamation and Enforcement finalized the “Stream Protection Rule” in December, President Obama’s last full month in office, “after an extensive and transparent public process that spanned multiple years.”

“This rule takes into account the extensive and substantive comments we received from state regulators, mining companies and local communities across the country,” Assistant Secretary for Land and Minerals Management Janice Schneider said in a statement last month announcing finalization of the rule.

The statement said it “updates 33-year-old regulations and establishes clear requirements for responsible surface coal mining that will protect 6,000 miles of streams and 52,000 acres of forests over the next two decades, preserving community health and economic opportunities while meeting the nation’s energy needs.”

But according to Paxton’s office, “the federal agency adopted the revised rule without the participation of the states.”

“By imposing a mandatory, one-size-fits-all rule regarding coal mining, the rule goes against states’ sovereign rights allowed by the Surface Mining Control and Reclamation Act enacted by Congress in 1977,” Paxton’s office said in a statement Tuesday announcing the filing of a petition for review and injunction of the rule, which was just published in the Federal Register.

Sometimes I like to imagine a world in which Ken Paxton lives next to an industrial polluter and is unable to afford health insurance. It doesn’t change anything in this world, but one does what one must to cope.

Want to know how close you live to a polluter?

There’s an app for that.

More than two million Texans live within a half-mile of an oil and gas facility, putting them at risk of exposure to toxic fumes, according to a new app released Wednesday by national environmental groups. The online tool — which includes a searchable map — places about a fifth of the state’s area, and more than 900 Texas schools and 75 medical facilities, in the half-mile range.

The app, created by Earthworks, Clean Air Task Force and FracTracker Alliance, is searchable by address and overlays the locations of oil and gas facilities and vulnerable populations with cancer and respiratory health risk information. An analysis published with the map also estimates that by 2017, 82 counties in Texas with a population of 4.1 million or more will face an elevated cancer risk.

“This [app] is so important in Texas is because of the political situation,” said Earthworks’ communications director, Alan Septoff. “The state has vowed never to regulate greenhouse gas emissions and there’s no chance the state of Texas is going to act.”

[…]

In June, about a month after the Obama administration announced plans to regulate methane leaks from new oil and gas facilities, the Texas Railroad Commission urged the state’s attorney general to sue the Environmental Protection Agency over the rules. Texas Railroad Commissioner David Porter has previously said the methane regulations “kill the jobs Texans rely on to support their families” and are “unnecessary” and “over-burdensome.”

Septoff said his group hopes both that the tool will be a resource to help folks living close to oil and gas activity understand the health risks they may be facing, as well as a push for the Obama administration to adopt methane regulations for facilities already in operation.

Here’s what the map for Texas looks like. There’s a ton of information on the webpage, with videos to help you use and understand the data. However you feel about regulations, you’re better off having full information available to you. Check it out.

Texas to get VW settlement money

It’s something.

Volkswagen has agreed to pay Texas $50 million in connection with the German automaker’s admitted peddling of diesel vehicles rigged to surpass emissions limits, Attorney General Ken Paxton announced Tuesday.

The partial settlement is part of a larger, multibillion-dollar agreement unveiled Tuesday that awards hundreds of millions of dollars to dozens of states and includes a $10 billion buy-back program to compensate consumers who bought the vehicles. Various media reports described it as the largest auto-related class-action settlement in U.S. history.

[…]

Paxton sued Volkswagen Group of America Inc. and parent company Audi of America in October in connection with the automaker’s admitted use of software that allowed its diesel vehicles to circumvent emissions limits. The lawsuits alleged violations of the state’s consumer protection laws and clean air standards. They were among hundreds filed in the United States against VW by governments and consumers.

As part of the settlements announced Tuesday, VW agreed to pay Texas $50 million in civil penalties and attorneys’ fees for its violations of the Texas Deceptive Trade Practices Act, which bans false advertising and sale of misrepresented products. About 32,000 diesel cars capable of emissions cheating have been sold in Texas, according to U.S. Environmental Protection Agency figures. That’s compared to about 480,000 nationwide and 11 million globally.

“For years, Volkswagen intentionally misled consumers about the environmental and performance qualities of the vehicles they sold in Texas,” Paxton said in a statement. “When companies willfully violate the public’s trust, we will hold these entities responsible. This settlement will both compensate the victims of Volkswagen’s fraud and punish the company enough to deter future fraud.”

He noted Texas has not yet resolved claims that VW violated state clean air laws, and that Texas continues to pursue related penalties. A Paxton spokeswoman would not say how much those might amount to.

See here for the background on the Texas lawsuit, and here and here for more about the national case. It’s nice to see the AG’s office on the side of a worthwhile case for once, though honestly this was as close to free money as it gets. I mean, the initial suits were filed less than a year ago. VW had basically admitted fault, and they clearly wanted this to go away. Good on them for that, but boy do they still have a lot to atone for.

And they’re not out of legal trouble just yet:

Several local governments in Texas, including Harris County, have also sued VW — over objections from Paxton — but they were not included in the settlements announced Tuesday. The Harris County lawsuit is pending in Travis County district court.

See here and here for the background on that. I presume Paxton didn’t do anything beyond send a letter to the relevant county attorneys asking them to back off; if he did, I couldn’t find any mention of it. It seems likely to me that with the big settlement out of the way, these others will soon follow, but we’ll see.

New methane rules finalized

Gentlemen, start your lawyers.

The Environmental Protection Agency on Thursday issued its final rule for methane emissions from the oil and gas industry.

The rule limits methane emissions from new oil and gas infrastructure and requires operators to submit to semi-annual or quarterly monitoring, depending on the type of operation. In addition, the agency took another step toward drafting a rule that would apply to existing oil and gas operations.

“They will help keep the nation on track to help the us cut emissions from the oil and gas sector,” EPA administrator Gina McCarthy said on a call with reporters Thursday. The new rule will reduce emissions by 11 million tons per year of CO2 equivalent by 2025, she said.

The Obama administration has a goal of reducing methane emissions from the oil and gas sector by 40 to 45 percent from 2012 levels by 2025. Natural gas is 80 percent methane, while oil extraction processes also often release methane trapped underground. In 2012, 30 percent of the country’s methane emissions came from oil and gas operations.

Methane is a potent greenhouse gas, trapping heat 86 times more effectively than CO2 over a 20-year span, so leaking methane can be a huge problem. While natural gas burns more cleanly than coal, leaks in the system can eliminate the climate benefits. Scientists have found that in the United States, methane leaks and venting have nullified any emissions benefit from transitioning the electricity sector from coal- to natural gas-fired power plants. In fact, the EPA recently found that the problem of escaping methane is even worse than initially feared. The United States currently gets a third of its electricity from natural gas, up from 24 percent in 2010.

[…]

There are, though, two key changes from the initial draft rule the EPA published last year that environmentalists welcomed. Under the new rule, natural gas compressors will be subject to quarterly monitoring — twice as often as under the proposal. In addition, low-production wells will be included in the rule. In its fact sheet, the agency credited the changes to the more than 9,000 public comments it received after the draft rule was published.

See here and here for some background. We all know what comes next, and we know it’s not over till the Supreme Court says it is. So sit back, pop open a cold one, and wait for the legal action to begin. Daily Kos and the Trib have more.

Houston’s anti-pollution ordinance killed by Supreme Court

Alas.

Bill White

Bill White

In passing two ordinances designed to regulate air pollution, the city of Houston overstepped its authority and illegally subverted state law, the Texas Supreme Court ruled Friday. The ruling is a victory for a coalition of industrial facilities whose emissions were subject to inspection and possible prosecution by the city.

The case pit the BCCA Appeal Group, a coalition of companies including ExxonMobil, the Dow Chemical Company, and ConocoPhillips, against the city of Houston, which sought to penalize companies in criminal court when those companies violated state emission guidelines.

Attorneys for the city of Houston argued that the city was simply trying to enforce the standards set out by the Texas Commission on Environmental Quality, a state agency, by putting in place a parallel enforcement mechanism that would impose fines on the companies even if the Commission chose not to act.

“If the TCEQ is letting something go, and not enforcing its own standards, there’s something wrong with that,” attorney Robert Higgason told the justices in September.

In an 8–1 ruling Friday, the justices made it clear that they disagreed – saying that if the Commission chose not to enforce any given law, that did not clear the way for Houston authorities to do so.

“By authorizing criminal prosecution even when the TCEQ determines an administrative or civil remedy—or even no penalty at all—to be the appropriate remedy, the City effectively moots the TCEQ’s discretion and the TCEQ’s authority to select an enforcement mechanism,” Justice Paul Green wrote. “This is impermissible.”

See here and here for the origin story, and here and here for the most recent updates. The Chron story adds more.

City Attorney Donna Edmundson issued a statement saying the court’s decision “will not dampen the city’s efforts” to assist the Texas Commission on Environmental Quality with the enforcement of environmental laws. The statement said the city will employ “other legal mechanisms” allowed under state law to monitor and take action against polluters. A spokeswoman said the city hadn’t decided whether to appeal.

Adrian Shelley, executive director of the advocacy group Air Alliance Houston, said the decision was “not the least bit surprising” but dismaying nonetheless.

“It’s pretty in-keeping with both previous judicial decisions and the direction in which our state government is moving,” he said. He cited the state Legislature’s passage of a bill last session that caps the amount local governments can collect through environmental lawsuits, Gov. Greg Abbott’s filing of a brief in support of the industry advocates in this case, and a prior legal case that made its way to the Texas Supreme Court.

“There will be more polluters who pollute with impunity,” Shelley said. “There will be a little poorer public health in the city as a result.”

Houston battled smoggy skies for decades and has failed to comply with federal ozone standards. The 10-county area includes the largest petrochemical complex in the country, hundreds of chemical plants and a bustling port.

Under the ordinances, the city collects registration fees from companies in order to investigate potential violations of air pollution laws.

City officials have defended the ordinances since their passage in 2007, arguing they helped fill an enforcement gap created by understaffing at TCEQ, the state agency responsible for monitoring and punishing polluters.

The city said legal mechanisms it could use against polluters include requesting that TCEQ investigate suspected polluters, seeking injunctive relief and penalties in civil court against suspected violators and notifying TCEQ of violations deemed to be criminal in nature.

Former Mayor Bill White pushed for the ordinances after growing frustrated with TCEQ. He and City Council members voted to amend a 1992 ordinance and start requiring businesses to pay registration fees based on their size and emissions. The fees range from $130 for a dry cleaning plant with fewer than six employees to $3,200 for plants emitting more than 10 tons annually of airborne contaminants.

The ordinances also authorized city health officers to seek civil, administrative and criminal sanctions for violations that can be prosecuted in municipal court, with fines of up to $2,000 per day for repeat violators.

The ordinance was based on the premise that these facilities are outside Houston’s boundaries, but their emissions directly affect the city and its residents, not to mention Houston’s non-compliance with EPA regulations. The Supreme Court wrote that allowing such ordinances might lead to uneven enforcement around the state. I can see the logic of that, but as is so often the case with the TCEQ, if they bothered to enforce the law in the first place, the city wouldn’t have passed that ordinance. It’s the same impetus that drove Denton to ban fracking, and as was the case there, it’s the same impulse to squash inconvenient expressions of local control that led to this result. How long can you hold your breath, Houston? The Press and the Observer have more.

Pity the poor utilities

Sorry, but low electricity prices, especially when they are aided by record amounts of wind power generation, are good news.

ERCOT

Texas’ national lead in cheap wind power, combined with near historically low natural gas prices, mild weather, an abundant power supply and slower growth in electricity demand, can work to the detriment of power companies.

The combination weighed down wholesale power prices last year to their lowest averages since 2002. And the effects are only becoming more dramatic in 2016, even creating bizarre instances when, in the abstract at least, providers are paying to put electricity on the market.

“It’s pretty dire,” said Michael Ferguson, associate director at Standard & Poor’s covering utilities and infrastructure. “It’s a bad situation for gas generators, but for coal generation, it’s even worse.”

Texas’ wholesale power prices averaged $26.77 per megawatt-hour last year, down nearly 35 percent from $40.64 per megawatt-hour in 2014. The cost was more than $70 as recently as 2008.

While now is a good time for consumers to lock in cheaper electricity prices, well more than 25 percent of the state’s power plants are operating at a cash loss, especially the older coal-fired plants, power executives and analysts estimated. That’s before more stringent federal emissions regulations go into effect in coming years

Until coal plants start shutting down or the state tweaks regulations to artificially inflate prices, power companies will struggle, executives said. A new Moody’s Investors Service report concluded that Texas “power prices are unlikely to climb out of their doldrums.”

Already, less than a quarter of Texas’ coal fleet is operating early this spring, as more generators simply take their coal plants offline until the summer heat brings more demand, analysts from Tudor, Pickering, Holt & Co. noted.

In March, wind added to the grid more than coal power for the first time ever for a full month. Wind contributed 21.4 percent of the grid’s overall power, compared with 12.9 percent from coal, which used to be the dominant source of the state’s electricity generation, according to the Electric Reliability Council of Texas, which manages about 90 percent of the state’s electricity load.

“Ultimately, something is going to have to give here,” said Thad Hill, president and CEO of Calpine Corp., the largest power generator in the Houston region and owner of the nation’s largest fleet of natural gas-fired power plants.

[…]

Texas is home to nearly 20 coal-fired power plants and the near future of at least six of them are considered at risk.

They will require expensive upgrades to meet federal standards, according to a recent ERCOT analysis, and the costs could outweigh the benefits of keeping them open. That’s not even counting the effects of the federal Clean Power Plan, which is pending in court.

“Ultimately, we think the market could be a lot tighter than people think, particularly if people start mothballing or retiring units,” said Hill, whose Calpine would stand to benefit because it doesn’t own any coal plants.

At-risk plants include Luminant’s Big Brown, Monticello and Martin Lake coal plants in East Texas, half of Luminant’s Sandow plant east of Austin, NRG Energy’s Limestone plant east of Waco, and Engie’s Coleto Creek plant near Victoria that’s being bought by Dynegy.

It’s fine by me if those coal plants go the way of the dodo. It’s long overdue, and their demise will make meeting the Clean Power Plan benchmarks even easier. More investment in solar energy will help mitigate the low-wind periods and ensure demand can be met in the summertime. What’s not to like?

30 years of “Don’t Mess With Texas”

Happy birthday to one of the greatest public service campaigns of all time.

It seems it’s every Texan’s duty to at least once invoke the slogan “Don’t Mess With Texas.”

You’ll see it on bumper stickers, in the movies, on T-shirts and coffee mugs. You’ll hear it hollered from campaign stumps and in songs. It’s about pride. It’s about bravado.

And it’s about trash.

Today, the Texas Department of Transportation celebrates the 30th birthday of its now-ubiquitous trademarked phrase and one of the most effective marketing campaigns in history — a campaign to rid Texas highways of garbage.

“When this program was created, Texas had a really bad problem of picking up highway litter,” said Jeff Austin, a TxDOT commissioner. “As a seventh-generation Texan, it was really embarrassing.”

Its brand endurance aside, Austin says you can measure the success of the campaign in tons.

The last time TxDOT conducted a study of visible trash the state calculated there were about 435 million pieces of litter — or more aptly, mess — on Texas highways.

That mess was about 34 percent less than in 2009, according to the 2013 study by Environmental Resources Planning LLC.

The commissioner attributes the reduction in mess, despite a booming Texas population, to the staying power of the “Don’t Mess With Texas” brand, which was drummed up by Austin-based marketing giant GSD&M in 1986.

It kicked off with a TV advertisement in which Texas guitar legend Stevie Ray Vaughan played “The Eyes of Texas.” That spot rolled out during the 1986 Cotton Bowl, and the rest is history.

Over the next three decades, Texas icons such as Willie Nelson, George Strait, Warren Moon, Matthew McConaughey – and the list goes on — would volunteer their time and talents in ads meant to keep Texas neat.

But the phrase took on a life of its own, and though many Texans may feel it’s their God-given right to use the phrase just like they do “Come and Take It,” TxDOT lawyers must occasionally remind folks that right rests with the state.

“We’ve sent a couple cease-and-desist letters to some companies that were using it in a negative way, if you will,” said Brenda Flores-Dollar, the program manager for the Don’t Mess With Texas campaign.

For instance, lawyers stepped in when one entrepreneur wanted to add an expletive to the phrase – “Don’t ****ing Mess With Texas” — and print it on T-shirts.

By owning the trademark, the state has been able to strategically license its use to make modest revenue – about $143,000 in royalties since 2004 — but also catapult the brand to heights not usually seen in government campaigns.

I’m a big fan of this campaign as you know, and it warms my heart to know that it is still going strong. You can see a few of the classic ads here – be sure to watch the George Foreman video, it’s wonderful – but the original Stevie Ray Vaughan spot still gives me chills.

God bless you, Stevie. And don’t mess with Texas, y’all.

New EPA rules for methane coming

You know what will follow.

Building on already pending rules to cut methane leaks from both new oil and gas wells and those on federal lands, the U.S. Environmental Protection Agency now plans to bring to the oil sector the tough emissions standards it previously applied to automobiles and power plants.

The change would bring federal pollution rules in line with President Barack Obama’s earlier stated promise to reduce methane emissions from oil and gas drilling at least 40 percent by 2025, EPA Administrator Gina McCarthy said.

“Based on this growing body of science, it’s become clear it’s come time for EPA to take additional action,” she said in a news conference Thursday. “We’ll start this work immediately, and we intend to work quickly.”

The EPA said it was only just beginning to put a rule together and would be reaching out to oil and gas companies next month to request emissions data, to get a better handle on the scale of the problem and the costs of fixing it.

But based on the methane rules, already pending, hundreds of thousands of oil and gas wells across Texas and the country are likely to be required to invest in technology like infrared cameras and methane sensors to seek out and repair natural gas leaks in their pipelines and storage tanks.

[…]

A recent study commissioned by the Environmental Defense Fund puts the cost of reaching Obama’s goal at 1 cent per Mcf of natural gas – less than 1 percent at current prices – when factoring in current lost revenues from escaping natural gas.

But in a conference call with reporters Thursday, Kyle Isakower, vice president of regulatory and economic policy at the American Petroleum Institute, said costs were likely to be far higher.

He said the industry would need to see the final rule before deciding whether to take legal action, as states and coal producers have done over Obama’s Clean Power Plan.

“We’re keeping all our options on the table,” Isakower said. “The administration is catering to environmental extremists at the expense of American consumers.”

Yeah, yeah, we’ve heard it all before. While the many, many lawsuits filed over Obama’s environmental regulations have in some cases delayed implementation for awhile, in the end the EPA and everyone who likes clean air and water has generally prevailed, as the Supreme Court has upheld the EPA’s authority to set and enforce these rules. I see no reason why this time should be different. Think Progress has more.

SCOTUS allows mercury regulations to remain in effect

Good.

Martin Lake coal plant

Martin Lake coal plant

The U.S. Supreme Court has denied a request from Texas and 19 other states to block a landmark federal rule requiring power plants to slash emissions of mercury, acid gases and other toxic metals — a setback for Texas Attorney General Ken Paxton in a case where he saw earlier success.

Without offering an explanation, Chief Justice John Roberts on Thursday denied the states’ request for a stay on the rules, according to media reports.

That decision followed a Supreme Court ruling last June — hailed by Texas Republicans — that the U.S. Environmental Protection Agency did not properly weigh the cost of compliance for coal-fired power plants against the benefits to public health while setting the new standards.

The June ruling sent the Obama Administration back to the drawing board on the regulations, which had already gone into effect. But it did not halt them.

The states, led by Michigan, had asked the justices to block the rules during the revision process. Roberts said no.

See here, here, and here for the background. Any day where Ken Paxton loses a fight to enable pollution is a good day. Think Progress has more.

Environmentalists petition EPA to strip Texas of some authorities

This unfortunately is not likely to go anywhere, but I relish the idea anyway.

Alleging that Texas has dramatically eroded its safeguards against air and water pollution, two environmental groups are asking the federal government to step in.

The Environmental Defense Fund and the Caddo Lake Institute are petitioning the Environmental Protection Agency to strip Texas of some of its authority under the federal Clean Air Act and Clean Water Act.

The nonprofits asked the agency to “review and withdraw its delegations of permitting authority to the Texas Commission on Environmental Quality” — the TCEQ — arguing that Texas lawmakers, by gradually cutting funding and passing more industry-friendly laws, have effectively rendered the agency toothless.

The commission panned the petition. “Texas law has and continues to meet federal requirements – to suggest otherwise is misleading to the public,” spokesman Terry Clawson said in an email. “We expect EPA to reject this frivolous petition.”

And the EPA on Tuesday said it was “not aware of significant deficiencies in TCEQ-delegated environmental programs at this time.”

“We will carefully review and consider claims raised by the environmental groups and respond accordingly,” Melissa Harrison, a spokeswoman for the EPA, said in an email.

[…]

As it has in other states over the past four decades, the EPA has given Texas the authority to permit and enforce a variety of air, waste, water and mining programs after lengthy and complex negotiations.

The federal agency rarely — if ever — has completely revoked a state’s permitting authority. But there have been close calls.

In 2013, for instance, Arkansas lost some of its Clean Water Act authority after its legislature passed a bill changing requirements for discharging minerals into streams. Lawmakers fixed the legislation after several permits were routed to the EPA.

Experts can’t recall an example where the agency took away Texas’ authority, but the state has faced similar issues.

About five years ago, the state refused to follow regulations involving greenhouse gas permits, delaying dozens of energy projects and prompting a major outcry from the industry. The Legislature relented in 2013 and directed TCEQ to begin issuing the permits.

You can see a copy of the petition here, and a copy of the EDF’s press release here. The move was in response to the many awful, anti-environmental bills that passed during the last legislative session; you can read the Trib story for an accounting of that. The EPA doesn’t sound particularly enthusiastic about picking this fight, and given how often they’ve had to defend themselves against lawsuits filed by Texas, I can’t blame them for being leery. I still hope they’ll at least put enough thought into this to deliver a scare to everyone who deserves it.

Yet another lawsuit by Texas against the EPA

So what else is new?

In another lawsuit against the federal Environmental Protection Agency, the state of Texas is taking aim at tightened standards on ground-level ozone — President Obama’s effort to cut down on smog that chokes the nation’s skies.

An ozone standard finalized in October shrank the previous 75 parts per billion limits on ozone to 70 parts per billion, putting pressure on some regions in Texas that struggled to meet the previous standards. The rules aim to crack down on pollution coming from factories, power plants and vehicle tailpipes.

Ozone forms when emissions from cars and industrial plants mix with other airborne compounds in sunlight, and it can worsen asthma, lung disease and heart conditions.

Though the new regulation is more lenient than what environmentalists called for, Texas leaders quickly joined with industry in blasting the regulation, arguing that it will cost billions of dollars to invest in cleaner technology that will yield fewer health benefits.

See here for some background, and here for a copy of the lawsuit. We all know the drill here. There will be much sound and fury, and in the end the state will most likely lose. It’ll take awhile and cost a lot of money, and we’ll all try to pretend that this is normal. Wake me when it’s over in a couple of years.

More rules against polluting your neighbors proposed

Good.

The Environmental Protection Agency proposed tougher new limits on Tuesday on smokestack emissions from Texas and 22 other states that burden downwind areas with air pollution from power plants they can’t control.

At the same time, the EPA moved to remove two states — South Carolina and Florida — from the “good neighbor” rules, saying they don’t contribute significant amounts of smog to other states.

[…]

The EPA’s proposal on downwind pollution follows a federal appeals court ruling this summer that upheld the agency’s right to impose the clean-air standards, which block states from adding to air pollution in other localities. Some states and industry groups had argued that the rule was overly burdensome.

The rule applies mostly to states in the South and Midwest that contribute to soot and smog along the East Coast.

Under the EPA’s proposal, states would have to comply with air quality standards for ozone, or smog, set by the George W. Bush administration in 2008. Current rules are based on pollution standards developed in the late 1990s.

“This update will help protect the health and lives of millions of Americans by reducing exposure to ozone pollution, which is linked to serious public health effects including reduced lung function, asthma … and early death from respiratory and cardiovascular causes,” EPA Administrator Gina McCarthy said in a statement.

The proposal reinforces the obligations states have to address air pollution that is carried across state lines, McCarthy said.

See here for the background. The ruling in question struck down some earlier regulations, but affirmed the EPA’s authority to set regulations on this. I won’t be surprised if there’s another lawsuit over these rules, but one way or another in the end there will be new rules.

No idling

From the inbox, from last week:

Mayor Annise Parker

Mayor Annise Parker

Mayor Annise Parker and Houston City Council today approved two significant ordinances that will improve Houston’s quality of life and protect public health: an anti-idling ordinance for motor vehicles with a gross vehicle weight rating of more than 14,000 pounds; and a commercial Property Assessed Clean Energy (PACE) program.

“Adopting these ordinances are more key milestones for my administration,” said Mayor Annise Parker. “While we are excited to join the ranks of other Texas cities that have also passed idling reduction policies, we are proud to be the first city in Texas that has adopted a commercial PACE program. We all have to work together in improving our air quality and quality of life.”

Idling Reduction:

Idling is one contributor to air quality issues in the region. Nitrogen oxides (NOx), volatile organic compounds (VOCs), and particulate matter (PM) are emitted from vehicle engine exhaust and can form ground-level ozone, or smog. Diesel engines emit hazardous air pollutants which have been linked to serious illnesses, including asthma, heart disease, chronic bronchitis, and cancer. Children, elderly, and those with asthma and other chronic health problems are especially vulnerable to the health dangers of exhaust.

Property Assessed Clean Energy (PACE):

PACE is financing that enables Houston owners of commercial, industrial and residential properties with five or more units to obtain low-cost, long-term loans for water conservation, energy-efficiency, and renewable retrofits.  In exchange for funds provided by a private lender to pay for the improvement, the property owner voluntarily requests that the local government place an assessment secured with a senior lien on the property until the assessment is paid in full.  The benefits of PACE are multi-faceted, leading to a win for all stakeholders.

“We applaud Mayor Annise Parker and Houston for passing landmark environmental legislation that improves our quality of life,” said Luke Metzger, Director of Environment Texas. “Commercial PACE will make it easier for building owners to reduce energy and water usage and the anti-idling ordinance will clean the air and protect the health of families. It’s a double win.”

“These two ordinances have the potential to make a big impact on air quality and quality of life in Houston,” said Adrian Shelley, Executive Director of Air Alliance Houston. “Reducing idling and conserving energy and water help protect public health, as well as save money. We appreciate Mayor Parker’s significant commitment to improving our environment.”

This ordinance follows numerous other air quality initiatives and programs including:

  • Investing in electric vehicles and hybrids and a fleet sharing program
  • Investigating emissions from metal recyclers
  • Retrofitting over 6 millions square feet of municipal buildings to improve energy efficiency
  • Purchasing 50% green power for city operations
  • Retrofitting 165,000 streetlights to LED technology
  • Expanding bike share and bike facilities across the city

The Chron has a bit more about the anti-idling ordinance.

The anti-idling ordinance prohibits drivers of vehicles with a gross weight of more than 14,000 pounds from idling for more than five minutes when the vehicle is not in motion.

The law, however, exempts vehicles being used by military, emergency or law enforcement personnel, vehicles in the process of being loaded or unloaded, cars sitting in traffic jams, people defrosting their windshields, and various vehicles that must run heat or air conditioning for health and safety reasons.

Transit vehicles carrying passengers can idle for up to 15 minutes to use the heat or air conditioning.

Good. As we know, Houston has longstanding air quality issues, and as federal clean air standards have tightened we have been in greater danger of not being in compliance. There isn’t one single thing that can be done to fix this problem, but there are a lot of little things that can be done to move us in the right direction. This is one of them. Kudos all around for getting it done.

Thanks but no thanks, Ken

Harris County will continue to pursue its own lawsuit against VW.

Harris County has responded to Ken Paxton’s request to drop its lawsuit against scandal-plagued Volkswagen. Its answer? A polite no.

[…]

In a reply to Paxton dated Oct. 15, [Harris County Attorney Vince] Ryan wrote, “we were pleased to learn that the Office of the Attorney General has joined Harris County” in the claims against Volkswagen. “We look forward to working together once again in connection with this important effort.”

In other words: No, thanks.

By abandoning their lawsuits, the counties would leave millions of dollars in potential damages on the table.

That’s because under state law, when local governments file such suits, the state is required to join as a “necessary and indispensable party.” In these types of cases, the counties and state split any money.

But the counties would not directly get a share of any damages in the suits Texas is leading.

Any civil penalties recovered in Paxton’s environmental lawsuit would flow into the state’s general fund, while penalties from the consumer protection case will go to the Texas Supreme Court’s judicial fund for programs that provide legal services to poor people, said Cynthia Meyer, a spokeswoman for Paxton’s office. Any other “meaningful restitution” she added, would go directly to consumers duped by Volkswagen’s emissions software.

Ryan’s letter to Paxton noted that, in 1998, Harris County, along with other counties, recovered about $2.2 billion from the tobacco industry through litigation — on top of the billions that the state recovered for itself.

See here, here, and here for the background, and here for a copy of Ryan’s letter. I’m not an attorney, but as I said before I don’t see why Harris or any other county that wants to pursue its own lawsuit should bow to Paxton’s request. It doesn’t make good financial sense to do otherwise, if a county has the resources to handle the litigation itself. Many counties don’t, but Harris does, and that should be good enough. Stick to your guns, Vince.

Paxton wants to sue VW all by himself

Really?

Seeking to fight scandal-plagued Volkswagen alone, Attorney General Ken Paxton is asking two Texas counties to halt their lawsuits against the automaker — a move highlighting friction between Texas and local governments pursuing tens of millions of dollars in court.

The Republican made the request in letters sent Friday to top attorneys in Harris and Fort Bend counties, both of which beat Paxton to the punch in filing lawsuits over the company’s admitted use of software that allowed its vehicles to sidestep emissions limits.

“The alleged violations by VW harm Texans throughout the state, and a separate Harris County lawsuit undermines the ability to achieve a comprehensive and just statewide resolution of this matter on behalf of Texas,” Paxton wrote in a letter to Vince Ryan, the Harris County attorney. “The Office of the Attorney General requests that the county stand down on its claims and cooperate with the Office of the Attorney General in pursuing the state’s interests – which includes Harris County’s interests – on matters arising from VW’s wrongful conduct.”

Paxton used similar language in a letter to Fort Bend County Attorney Roy Cordes, Jr.

Paxton wrote that both counties failed to communicate with his office before filing their suits, and he knocked them for hiring outside legal help, saying the move “appears to be an unnecessary expense.” The Texas Tribune obtained unsigned copies of both letters.

By abandoning their lawsuits, the counties would leave millions of dollars in potential winnings on the table.

“Harris County, Texas wants a place at the table. That’s why we’re first in line and the first government in the world to sue Volkswagen,” said Terry O’Rourke, special counsel with the Harris County attorney’s office. O’Rourke had not yet seen Paxton’s letter.

“We’ll look at whatever General Paxton’s request is and evaluate it with sincerity,” he added.

In Fort Bend, Randy Morse, the assistant county attorney, said his office could not comment because it had yet to receive the letter.

[…]

Last week, the city of Dallas announced it planned to sue Volkswagen, but it reversed course on Monday, saying Paxton’s statewide suit would do the trick.

“We look forward to the state taking action in the upcoming months to require Volkswagen and Audi to bring the affected vehicles into compliance with state environmental laws and improve air quality in the Dallas-Fort Worth area, and we urge the state to do so in an expeditious manner and at no cost to affected motorists,” the city said in a statement.

See here and here for the background. Personally, I don’t know that I would trust the state to look after my own interests as well as I would in a case like this. Pursuing environmental justice is not exactly one of Ken Paxton’s strong points. If I were in those County Attorneys’ shoes, my reply would be to suggest that Paxton file a brief with the judge in my case stating his position, and let the judge decide the best course of action from there. The Press and the Chron have more.

State of Texas sues VW

Bandwagon time!

Following in the footsteps of Harris County and the city of Dallas, the state announced Thursday it is suing Volkswagen in connection with the German automaker’s admitted use of software that allowed its vehicles to circumvent emissions limits.

Attorney General Ken Paxton announced two separate lawsuits against Volkswagen Group of America, Inc. and subsidiary Audi of America, alleging violations of the state’s consumer protection laws and clean air standards.

“The lawsuits allege the companies misled Texas consumers by marketing and selling diesel vehicles as ‘clean’ while knowing that these vehicles were designed to meet emission standards only when being tested,” a news release said. “Outside of the testing station they would emit up to 40 times the allowable standard for certain pollutants.”

About 32,000 diesel cars capable of emissions cheating have been sold in Texas, the release said, citing U.S. Environmental Protection Agency figures. That’s compared to about 480,000 nationwide and 11 million globally.

“For years, Volkswagen intentionally misled consumers about the environmental and performance qualities of the vehicles they sold in Texas,” Paxton said in a statement. “When companies willfully violate the public’s trust, a penalty must be paid, and we will hold these entities responsible.”

See here for the background. Again, I don’t know why any government entity wouldn’t file suit against VW. They’ve already admitted liability – this is as close to a slam dunk as it gets in civil litigation. How long it takes and how much you ultimately get are open questions, but the winning and losing part isn’t. And hey, now we know what it takes to get Texas to enforce environmental standards. It’s a win all around!