After chemical fires, it’s a race to file suits
County officials, environmentalists say state takes quick action to ease penalties
Emergency crews were still containing a massive chemical fire in Deer Park last spring when the state of Texas filed a lawsuit against the company for environmental violations.
Five days later, Harris County officials brought their own lawsuit against Intercontinental Terminals Co., the owner of the chemical storage farm.
When fires broke out weeks later at plants at KMCO in Crosby and then Exxon Mobil in Baytown, the state and county each raced to file suit, even as the blaze continued to burn in one case.
As chemical plant explosions and fires have disrupted lives and raised air-quality concerns in the Houston area this year, the state and its most populous county have been jockeying to take the lead in penalizing polluters.
The state’s more active role has aroused suspicions among some local officials and environmentalists, who believe state leaders with a record of pro-business actions may be trying to take control to soften the blow of any court rulings against major corporations.
“It’s obvious there’s been an attempt to limit Harris County legal office from pursuing these cases,” said Neil Carman, a former air inspector with the Texas Commission on Environmental Quality who now works with the Sierra Club’s Lone Star chapter.
But state officials maintain its legal strategy hasn’t changed.
The legal maneuvering reflects growing public concern about environmental disasters in the Houston area and the ongoing tug of war between the Republican-led state government and officials in major metro areas over the setting of policy.
Who sues first dictates not only where the case will be heard, but also where the money will go if there are civil penalties. If Harris County leads with the state being a party to its lawsuit, the money is split between both parties. But if the state sues without the local government’s involvement, it goes back to the state’s general revenue
County officials say they have to sue to have a role in the process and to make sure companies are held accountable for the damage they cause. State lawmakers say that such suits are redundant and that there needs to be a statewide approach; the Legislature has passed bills restricting local governments in such cases.
“It’s not efficient, and it’s not a good way to function,” said Rock Owens, special assistant Harris County attorney for environmental matters. “If you have an emergency that requires immediate attention, that’s a reason to move quickly. But I just have to move quickly to make sure Harris County keeps a seat at the table, and that’s an unnecessary use of resources.”
In the end, he added, “everybody loses.”
On March 22, five days after the ITC chemical tank explosion, Gov. Greg Abbott tweeted that TCEQ was “exploring all legal options to hold accountable the company that has caused the fires and pollution in Deer Park.”
That same day, Attorney General Ken Paxton, a fellow Republican, sued the company.
“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,” Paxton said in a news release. “No company can be allowed to disrupt lives and put public health and safety at risk.”
But the state has not always been this outspoken, nor has it been consistently since.
“I have not seen something similar to this in my career,” said Jim Blackburn, a longtime area environmental attorney. “I think this is a combination of an aggressive local county attorney and a state that is concerned about such aggressiveness.”
The attorney general’s office (then led by Abbott) didn’t sue DuPont when in 2014 toxic chemicals were released killing four workers, which a federal investigative agency later determined was the result of a long chain of failures and lax safety.
It didn’t sue in 2013 either, after an explosion in West injured more than 200 and killed 15.
More recently, neither Abbott nor Paxton has spoken out regarding the a fire at the TPC Group’s
Port Neches plant that burned for days and led to the evacuation of more than 50,000 people.
Toby Baker, TCEQ’s executive director, said that day he had witnessed an unacceptable trend of significant incidents within the last year.
“While not all emergency events may be prevented,” he said, “it is imperative that industry be accountable and held to the highest standard of compliance to ensure the safety of the state’s citizens and the protection of the environment.”
Jefferson County’s top official says the county will leave potential litigation to the state. A month after the first explosion, the attorney general had not sued.
A TCEQ spokesman said the agency relies on a general practice that outlines specific criteria to determine when and how cases are referred to the attorney general, including the need for immediate action to protect public health, safety or the environment, or when the violations are so egregious that civil penalties are needed to address them.
To George Christian, senior counsel for the Texas Civil Justice League, which pushes pro-business legal reforms, the recent filings are not a reflection of a shift but more of the attorney general doing his job.
“The attorney general does what he is constitutionally bound to do,” he said. “He takes his oath of office seriously, and he’s doing it, regardless of who the players are.”
A spokeswoman for Paxton’s office said she couldn’t comment on legal strategy or plans for future litigation.
Since at least 2015, state lawmakers, mainly Republicans, have introduced bills to curb some of the control that local governments have to enforce environmental laws.
They’ve sought to cap how much local governments can recover via civil penalties (passed), let the attorney general settle suits brought by local governments (failed), allow the the state to seek civil penalties (passed) and limit their ability to hire outside legal help on a contingency basis (passed).
They argued these changes were needed to bring uniformity to environmental enforcement across the state and prevent local governments from filing frivolous lawsuits that did little to remediate the situation and could hurt the Texas economy.
They pointed to high-profile cases brought on by Harris County, including a $5 million settlement against AT&T reached in 2010 and a $29 million award against two companies for pollution in the San Jacinto Waste Pits won in 2012.
“Before these cases, the state had taken the de facto, default position that it would not seek civil penalties from parties cooperating in environmental cleanups,” said state Rep. Jeff Leach, a Republican, during an April hearing before the committee on judiciary and civil jurisprudence.
“This practice is bad for the Texas economy and draws away funds that could be used for remediation,” he added.
Former state Rep. Jessica Ferrar, a Democrat from Harris County, responded, “My county did this, filed these suits, because they were not receiving the assistance that they needed, the attention that they needed, from TCEQ.”
“It was an extreme situation and it has also been well documented that TCEQ, when they finally do fine, accept pennies on the dollar of their fines,” she said.
Leach couldn’t be reached for further comment.
From the business community’s standpoint, Christian said, “we think that it ought to be very clear, first of all, what the rules of the game are.”
And if there’s a violation, the state should get the first shot at enforcing it’s rules, he said.
“What we don’t want is a dualtrack enforcement where the state is doing one thing and other parties are doing other things,” he added.
His group has backed and helped draft this legislation.
Texas leads the nation in job creation, Christian said in 2015 in support of one of the bills, “because we have a balanced and reasonable regulatory environment.”
These restrictions, Owens said, have pushed Harris County to become more creative.
They use flood plain regulations to go after companies. They focus on the goal of getting injunctive relief instead of civil penalties to avoid having to first get permission from the state. More recently, Commissioners Court granted authority for the county attorney’s office to file environmental suits without having to first get the county board’s approval on a case-by-case basis.
This last move, however, is being contested by the state in court. The attorney general is arguing that Harris County couldn’t have sued Exxon Mobil on Aug. 1 using the commissioners’ preauthorization. A hearing has been set for Jan. 17.
Historically, the state has not been known for strong environmental enforcement, Blackburn said.
A quarter-century ago, TCEQ officials would talk about how lawmakers grilled them over how tough their enforcement policies were, he said.
“I got the clear message back then, and there’s nothing I’ve seen that would change this recently, that the Legislature was interested in discouraging strong prosecution of environmental violations, and I think that’s how it’s been historically for as long as I’ve been practicing environmental law in Texas,” he said, which is 40 years.
While Paxton has recently filed lawsuits against polluters, the attorney general is more well known for suing and criticizing the Environmental Protection Agency, especially when Democrat Barack Obama was president.
Among other things, Paxton sued the EPA in 2015 for tightening laws on ground-level ozone and later called Obama’s Clean Power Plan a “blatant overreach” and a “violation of the federal law.”
The Sierra Club is part of a group that threatened to sue Valero this year at its Port Arthur refinery. Under the law, it has to give the government and the company a 60day notice, and right before the deadline expired, the attorney general filed a lawsuit on behalf of the TCEQ on nearly identical grounds.
“Can we trust Paxton…?” the nonprofit asked in a blog post published in September.
And the group questioned whether the unstated goal of Paxton’s recent suits against corporations is “so they don’t receive harsher punishments.”
“Across the board, the state Legislature and the executive leadership is taking jurisdiction from local governments in a myriad of ways,” said Vince Ryan, the Harris County attorney since 2008.
Whether the legal actions brought by the state reflect a longer-term shift in environmental enforcement remains to be seen, but it is likely that there will be more cases coming out of Harris County, where Democrats took control of Commissioners Court in 2018.
After the recent string of incidents, Commissioners Court increased the budget for pollution control and gave additional funding to the district attorney to boost its environmental unit.
“What we’ve tried to do is maximize the ability we have as the Harris County Attorney’s Office to move the needle on environmental issues,” Ryan said. “Part of it is sending a message that we, as Harris County government, are interested in a cleaner, better environment as we move forward.”