Feds looking into broad complaints against state environmental agency
WASHINGTON — Federal environmental regulators are probing wide-ranging complaints that Texas is not doing enough to safeguard against water and air pollution.
The Environmental Protection Agency said in a letter this month that it is looking into a slew of allegations the Texas Commission on Environmental Quality allows developers to skirt environmental rules, cuts the public out of permitting processes, and more. The inquiry comes after dozens of environmental groups have filed two separate petitions asking the agency to step in and take over permitting in the state.
“If proven to be true, the allegations outlined in the petition are concerning,” Charles Maguire, the EPA’S acting deputy regional administrator, wrote in the letter.
The inquiry comes as the state’s environmental agency has been under increased scrutiny. A review of the agency by the Texas Sunset Advisory Commission last year deemed TCEQ to be “reluctant regulators” and recommended lawmakers increase fines on polluters, add time for the public to weigh in on proposed permits and improve online transparency, among other things.
The TCEQ declined to comment on the EPA letter but said the federal agency reviewed its permitting processes in 2020 and found them to meet all federal requirements.
Environmental advocates cheered the federal inquiry, saying it is a significant step.
“For EPA to say our claims are valid and that they’re investigating further is a pretty big deal,” said Luke Metzger, director of the Austin-based Environment Texas, one of 21 groups that filed the complaint alleging problems with water quality regulation in the state.
The groups allege the state
agency, which runs the federal permitting program that sets limits for polluters, allows developers to claim projects will have only minor effects on waterways and puts the burden on the public to prove otherwise. Meanwhile, the groups say the agency cuts out most of the public from contesting permits by barring court challenges from people who use waterways for recreational purposes, such as fishing or kayaking, but do not own land nearby.
“TCEQ is, we think, illegally preventing the public from participating in permit challenges and thereby just kind of rubber -tamping permits to pollute by big industry,” Metzger said.
The result, the groups say, are badly polluted waterways across the state. According to the complaint, 9,711 miles of the state’s rivers, over a half-million acres of its lakes, and 1,248 square miles of its estuaries are so polluted they are considered “impaired” under the federal Clean Water Act, meaning they are not safe for recreation or drinking.
The EPA letter also cites a June 2022 complaint from 13 environmental nonprofits that claimed the state agency unlawfully restricts public participation in air pollution permitting, a process by which the state limits facilities’ emissions to a threshold it deems best for public health.
The TCEQ does this in three ways, the groups allege. For one, under Texas law, only “affected” people can get involved in contested cases, which the agency has defined as anyone who owns property or lives within a mile of a facility seeking an air permit.
The rule is “arbitrary” and “denies ‘affected person’ status to those whose health, aesthetic, or recreational interests are harmed by the proposed permit,” the groups said in their complaint.
The groups laid out concerns that the agency allows permit applicants to withhold “broad portions” of application materials as confidential, “even though they contain critical facts about pollution releases.”
Lastly, the groups allege the TCEQ bypasses the air permitting process by using a separate permitting process that is supposed to be used for projects that aren’t expected to significantly affect air quality. These permits often result in “substantial increases of emissions” in all kinds of cases because of the vague language used.
“EPA has repeatedly objected to these permits without actually requiring Texas to fix its broken process,” said Gabriel Clarkleach, senior attorney at the Environmental Integrity Project, in a statement at the time. “That needs to change.”