HOUSTON – The Texas Legislature ended its regular session with a mixed bag of environmental rules, passing some bills that put it ahead of the nation and others that are bound to infuriate the U.S. Environmental Protection Agency.
Texas, an oil and gas powerhouse as well as one of the largest polluters in the nation, can only change and pass new laws once every two years, so the legislative session is meaningful. Federal agencies and other states often watch closely to see what energy and environmental rules are passed or changed in Texas, a state that has often set precedent in these areas — for good and bad.
This time, the Legislature passed a bill that could make Texas the first state to require by law that oil and gas companies publicly disclose the chemicals they use when breaking up dense rock to extract minerals. This could force other states and the EPA to move more quickly on a contentious issue that is gaining steam as hydraulic fracturing is used in more areas.
The Legislature also overwhelmingly approved a bill that would delay by at least two years efforts to strengthen air permitting rules for the oil and gas industry, a move that could ratchet up a drawn-out, sometimes ugly, public dispute between Texas and the EPA that has evolved from a tussle over environmental issues into a battle over states' rights.
The Legislature passed the bill after the EPA's Deputy Regional Administrator Lawrence Starfield sent a letter to the Texas environmental agency warning that if adopted "the EPA would have to consider taking additional action, including the consideration of sanctions" under the Clean Air Act. This could include a takeover of Texas' air permitting program, a responsibility traditionally reserved for states.
"The bottom-line is this is probably a C-plus session on the environment and energy," said Tom "Smitty" Smith, Texas director of Public Citizen, a nonprofit lobbying group that focuses on environmental and energy issues.
Texas has long been a trend setter for the nation on energy and the environment. In 1999, for example, the state passed a bill setting aggressive targets for reducing air emissions in East Texas, Smith said. Other states eventually followed suit and the rules became the backbone of the Clean Air Interstate Rule, adopted by the EPA in 2005 in an effort to achieve the greatest air pollution cuts in more than a decade.
"This time around we didn't have one of those great breakthrough moments where we set new energy policy for the nation," Smith said.
The bill requiring companies to disclose fracking chemicals was significant, he said, but weakened when the deadline for implementation was delayed from January 2012 to July 2012.
The Legislature, did however, pass a dozen bills that will reduce the need for new power plants, lower energy costs for consumers and result in fewer air pollutants, Smith said. But it also approved a bill that makes it more difficult for cities to sue large companies that emit global warming gases, methane or other gases from hydraulic fracturing or "fracking" — the technology that when coupled with horizontal drilling allows oil and gas producers to extract once out-of-reach minerals from dense rock formations.
Important changes were made to the Texas Commission on Environmental Quality — the state agency that oversees and regulates environmental rules. The agency can now fine companies up to $25,000 a day for violations, up from $10,000. However, the bill also limited the public's ability to request hearings in certain situations.
The Legislature also passed several important bills that make it easier and more efficient to install and use solar energy, including one that will allow large stores — such as Walmart — to install solar panels and generate energy without having to go through the tedious and bureaucratic process of listing itself as a power company.
And Texas passed legislation that allows low-level nuclear waste to flow in from 36 states — a significant expansion from before when only two states and the federal government could send such waste for burial to the West Texas site along the New Mexico border. It remains unclear, however, how soon that might begin to flow or what impact it would have on the environment.
Debbie Hastings, vice president of environmental affairs for the Texas Oil and Gas Association, a lobbying group that represents the oil and gas industry, declined to give the Legislature a grade, but said it tried to strike a balance between the different interests while facing "unprecedented challenges."
The fracking legislation was key, she said, calling it "a landmark achievement that will go far in debunking some of the myths and misconceptions that people have about fracking."
Hastings said it was important the Legislature passed the bill clarifying how the state issues and oversee air permits, saying the EPA's concerns over the two-year delay included in that law is misguided.
Richard Hyde, a permitting director at the Texas environmental agency TCEQ said the EPA often notes concern with proposed legislation, and Starfield's letter will help Texas comply with federal law while writing its new rules.
"Time will tell how it goes," Hyde said. "But I don't see anything in their letter that we can't address."
And what didn't pass may also be significant.
The Railroad Commission will remain as is, despite an audit by the state's Sunset Advisory Commission that called for an overhaul that would have also changed the agency's name to the Oil and Gas Commission. The commission — responsible for permitting oil and gas drilling and regulating pipelines — has not handled railroads for at least five years, yet the name change has failed to pass three Legislative sessions.
Cyrus Reed, conservation director for the Sierra Club's Lone Star Chapter, also gave the Legislature a C-plus.
"It's a mixed bag," he said, noting they did well on energy efficiency.
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