The Texas Commission on Environmental Quality should protect the atmosphere too

Pop quiz: Is the atmosphere a public resource that we all have the right to use? If you answered yes, congratulations, we think you’re absolutely right. If you answered no, you might work for the Texas Commission on Environmental Quality.

As reported in the Texas Tribune on October 11, the commission, the state environmental agency charged with promoting “clean air, clean water and safe management of waste” in Texas, is currently appealing a court ruling that actually went in its favor. In 2011, a group of environmentally-conscious kids called on the commission to institute more rigorous greenhouse gas regulations. The commission declined, and the kids’ parents sued on their behalf, arguing that the atmosphere was a shared public resource and the government was legally required to protect it for public use under the public trust doctrine. 

The case was seemingly closed when Travis County District Judge Gisela Triana ruled that while the state of Texas did indeed have a responsibility to protect “all natural resources of the state including the air and atmosphere,” it was up to commission to decide whether to enact specific regulations related to greenhouse gases. 

The commission appealed the ruling, demanding that the Third Court of Appeals vacate Triana’s opinion that the state’s environmental agency is required to protect the atmosphere.

According to the commission, its responsibility to protect natural resources was “exclusively limited to the conservation of the State’s waters,” and that it “was merely empowered, but not required, to adopt a rule to control air contaminants related to climate change.” Finally, the commission argued that the public trust doctrine Triana cited was “not central to the outcome of this case” and as such was outside the court’s jurisdiction.

“The scope of this doctrine is a very important issue which deserves to be fully vetted, not decided in a case that turns wholly on an issue of administrative procedure,” commission spokeswoman Andrea Morrow wrote in an email to The Daily Texan editorial board.

In other words, though the commission agrees with Triana’s judgement that it shouldn’t have to regulate greenhouse gases when petitioned by private citizens, it disagrees with her judgment that the the public trust doctrine requires it to protect Texas’ atmosphere. We agree with the commission that further litigation is needed to clarify the issue. But that’s where we stop agreeing, because if recent history has shown us anything, it’s to be suspicious of the commission’s intentions when it comes to protecting the environment. 

The commission is headed by three commissioners appointed by Gov. Rick Perry. Only two of those seats are currently filled, by Texas A&M biological and agricultural engineering professor Bryan Shaw — commission’s chairman — and former Perry adviser Toby Baker.

It’s no great secret that the agency prioritizes economic interests at least as much as environmental protection, if not more. Unlike the “out-of-control and out-of-line EPA,” Perry said in 2012, “Texas will continue to pursue common sense policies that balance the priorities of protecting the environment and allowing our industries to thrive.”

Former TCEQ commissioner Larry Soward told the Texas Observer in 2010, “The problem with some of my colleagues’ balancing is they always balance it toward economic development and don’t let the environment have an equal consideration.” Former state Sen. Eliot Shapleigh, D-El Paso, had a harsher assessment, calling the commission “a lapdog for polluters.”

The commission’s leadership has done little to dispel these claims.

Under Perry and George W. Bush before him, the commission has consistently resisted federal EPA regulations, like a 2011 Cross-State Air Pollution Rule that current commission chairman Shaw condemned in a Houston Chronicle op-ed.

 “Like so many of the EPA’s proposed rules — extreme tightening of ozone limits, global warming control schemes, attempts to nullify Texas’ very successful flexible permitting program — this rule seems not so much intended to improve the environment as to impose unnecessary, expensive federal controls on industry and increase the costs of energy to consumers,” Shaw wrote.

In 2010, in response to the EPA’s demand that the commission reform its industry-friendly emissions regulations, Shaw and Texas Attorney General Greg Abbott wrote a letter declaring that “Texas has neither the authority nor the intention of interpreting, ignoring, or amending its laws in order to compel the permitting of greenhouse gas emissions.”

Texas was the only state to refuse to comply with the federal regulation of greenhouse gases.

Nowhere in the United States are effective emission regulations more sorely needed than in Texas, the state with by far the nation’s highest greenhouse gas emissions. If Texas was its own country, its emission levels would rank 21st in the world.

Greenhouse gas emissions are almost universally accepted as a major cause of global climate change, and as the problem worsens it is absolutely necessary to limit those emissions as much as possible. The state of Texas isn’t just doing a poor job of limiting them — it’s actively resisting doing so at all, even when that means appealing court rulings that fall in its favor because they also affirm its responsibility to protect the atmosphere. That must change, and if Texas’ current leadership continues to encourage such environmental negligence, then it’s time for new leadership.