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Texas Conservative Coalition Research Institute

Protecting polluters


Ship Channel circa 1973

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

Here’s the Chron on these two bills:

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

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

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


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

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

This is your government on dogma

We won’t get Jim Pitts’ bare bones budget outline till late tonight, so as not to be a buzzkill on the Perry coronation inauguration. We did, however, get an opening bid from the ideological purists, and while it’s not worth looking at in details, because life is too short and a mind is a terrible thing to waste, there are a couple of things worth mentioning.

Education will have to bear the brunt of budget cuts, conservative legislators said Tuesday, because the federal government has left them no other options.

“Indeed, Texans can thank President Obama and the Congress led by former House Speaker Nancy Pelosi for the passage of (federal health care reform), which is directly responsible for the massive reductions that are required in other areas of the budget, and particularly public and higher education,” according to the Texas Conservative Coalition Research Institute, which released its plan for reducing state spending in the face of a significant budget shortfall.

Federal health care reform prevents states from reducing eligibility and benefits for people who use Medicaid and the Children’s Health Insurance Program.

“We are forced to tinker at the edges of those programs and focus disproportionately on public and higher education,” said state Sen. Tommy Williams, R-The Woodlands, who led the budget task force with state Rep. Warren Chisum, R-Pampa.

The state’s budget shortfall ranges from $15 billion to $27 billion depending upon who is doing the counting. The conservative legislators lay the cause of that shortfall mainly at the feet of the Obama administration and the economy, dismissing the legislators’ own role in digging the hole.

You know, like giant unaffordable property tax cuts. I took the liberty of running these guys’ excuses through a reality filter, and this is what it gave me:

I ran out of gas. I, I had a flat tire. I didn’t have enough money for cab fare. My tux didn’t come back from the cleaners. An old friend came in from out of town. Someone stole my car. There was an earthquake. A terrible flood. Locusts. IT WASN’T MY FAULT, I SWEAR TO GOD.

Much better. Moving on:

The group found $18 billion in potential savings without touching transportation, public safety or criminal justice. Among their suggestions are the following:

— Lift the elementary classroom size from 22 students to 25: $558 million

— Eliminate the pre-kindergarten grant program: $209 million

— Institute a 10 percent pay cut for state employees and two-day furlough per month : $1.7 billion

— Reduce the state’s contribution to health care for dependents of employees: $108 million

Let there be no doubt that there are two types of people in this state: Those who will be required to sacrifice extensively for the benefit of others, and those for whom any sacrifice is too great. State employees, who as a commenter notes are effectively getting a 20% pay cut under this plan, are an example of the former; Dan Patrick and his untouchable property tax cuts are an example of the latter. There is no class war in Texas – it’s long been over, and Dan Patrick’s team won.

As for the education-related cuts, you will note that there is no discussion of any possible effects on student performance, or possible long-term costs to the state as a result of any potential drop in student performance. It’s a lot easier to make proposals like these if you pretend there are no consequences. The only question I have is why stop at simply raising the class size limit? Why not go whole hog and impose class size minimums? Just imagine how many schools we could close, how many teachers and other school employees we could fire, and how much money we could save if we mandated that every class must contain at least 30 students? Or 40, or 50, or hell, 100? The answer, obviously, is that even guys like Tommy Williams and Warren Chisum recognize that there might be some bad things resulting from such a decree, and that the accompanying savings would not be considered worth it by everyone else. Their hope is that the ill effects of their proposal will be small enough to be “acceptable”, or – better yet – won’t be apparent for a few years, long enough for the facts to be fudged in the retelling. Hey, it beats having to make justifications now.

UPDATE: House Democrats will give their response to the Pitts budget tomorrow morning at 9 AM.

UPDATE: The Trib has an early peek.