When An Upset "Can Kill"
by Erika McDonald
In a state famous for its wild-west, hard-line approach to law enforcement, the general consensus among legal experts is that Texas regulators and elected officials are uncharacteristically tentative when it comes to enforcing anti pollution laws. A recent conference in at the University of Texas School of Law in Austin, brought officials from the Texas Commission on Environmental Quality face to face with the agency's critics in an effort to reshape the state's approach to environmental enforcement. The entire system is currently under an inter-agency review following a state audit last December that blasted TCEQ's enforcement record.
One of the panelists, Bee Moorehead, executive director of the social justice group Texas Impact said the state should enforce environmental laws as stringently as it enforces other laws.
“The reason we have environmental laws at all is that pollution hurts and kills people,” Moorehead said. “We have a strong system for enforcing laws against murder and assault, but environmental cases are somehow treated as commerce cases as opposed to offenses that hurt people.”
TCEQ deputy director of enforcement, John Steib was on hand to defend the agency's administrative approach to penalizing polluters.
“Admittedly, past activities have been along the lines of working into an agreed order (assessing penalties one case at a time) to unclog a bottleneck that would occur if we take everything to adversarial relationship,” Steib said.
But critics argue that by negotiating with violators to assess penalties on a case-by-case basis, TCEQ is unable deter future pollution.
“ Deterrence requires ensuring that penalties are swift, sufficiently adverse and certain,” said attorney John Rumpler, who represents the association of state public interest research groups. Fines that are just a slap on the wrist are no deterrence at all.
Rumpler pointed to a New Jersey law that sets mandatory minimum penalties for any violations to the Clean Water Act. After one year under the new program, violations had declined by 87 percent.
In addition to setting mandatory minimum penalties, other suggestions emerged from the conference, such as setting state guidelines for which cases constitute criminal enforcement action and requiring the state to recover 100 percent of a company's economic benefit from breaking pollution laws.
But the dialog soon moved from the pragmatic to the theoretical as some panelists called for a fundamental shift in the attitudes of Texas regulators and legislators.
Moorehead said that perhaps the best approach to changing the way Texas handles environmental crimes, is to change the way we talk about them.
“When we talk about events that emit toxins into the air that can kill children we call them upsets, but when I think of an upset, I think of spilling milk not of killing somebody,” she said. “This (review) has the potential to change the language that we use so that legislators are forced to confront the reality of what these events really mean.”
Rumpler said that another kind of language problem can have the effect of excluding the very communities environmental laws are designed to protect from the enforcement process. He said TCEQ compliance officers have more in common with the company officials they regulate than with the general public.
“(Engineers and state regulators) don't speak English, they don't speak Spanish, they speak in 'engineer-ese' with all sorts of complicated terms and equations,” he said, “and if that kind of a culture shift happens as an element of this (review) process , it would be a tremendous boost to the folks living in the shadow of these facilities.”
Empathy for communities suffering the effects of pollution, rather than for polluters, is something conference attendees said is critical to tougher enforcement.
Charles Ingram came to the event from San Antonio where city officials are planning to build a new coal-fired power plant, to talk with agency officials about his struggle for environmental justice. Ingram often gets emotional when he talks about TCEQ because he has spent years lobbying for better public input before the agency. His efforts have resulted mainly in frustration, a feeling that did not change after the conference. “TCEQ has a long way to go and we're trying to help them, that's why I lobbied during the 78th legislative session,” he said. “Now I'm sad about TCEQ, I really am, I don't think they answered my questions here today and there are still going to be people (suffering from pollution).”
Whether a shift in culture, or any of the policy changes suggested will ever occur may ultimately boil down to a question of resources. With deadlines set for Legislative Appropriations Requests later this summer, Morehead said she hopes the public will have a chance to weigh in before it's too late.
“If this (review) process doesn’t feed into the appropriations process, it will be largely meaningless,” she said. “If (TCEQ) doesn't ask for money to do added enforcement, what we're left with is the perfectly concrete, dollars-and-cents proof that we really didn't mean to do a serious job on this.”
Though the public comment period for TCEQ's enforcement review officially closed March 30, Steib said the agency will hear and “seriously consider all comments,” until the gavel drops on the 79th legislature.
