The Texas Observer

John Hall, a regulator-turned-lobbyist, is gunning hard for the top job at the regional EPA office. Like Zelig, Hall’s been showing up everywhere—in D.C. to plead his case with the feds, in Port Arthur, Austin and Corpus Christi to try to and convince community activists and enviros to back off their criticism of of him.

Hall’s problem—perhaps an insurmountable one—is that he’s gotten very rich exploiting the revolving door between industry and government. Since 1997, following his tenure (’91-’95) as chairman of the state environmental agency, then called the Texas Natural Resources Conservation Commission (TNRCC, or “trainwreck”), he’s earned up to $6.3 million lobbying for refineries, chemical companies and landfill outfits. This lucre has enabled Hall to own a 7,600 square-foot mansion in West Austin valued at $3.25 million.

Hall was the first African-American to head TNRCC but his track record there didn’t exactly impress many in the environmental justice community. For example, in 1995 Hall voted to approve—over the objections of hundreds of citizens and an administrative law judge—the dramatic expansion of a landfill in Ferris, Texas, a largely black community near Dallas. The dump, owned by garbage giant Waste Management of Texas, practically swallowed Ferris. Many residents have since fled the town’s stench and pollution. Two years after approving the Waste Management dump expansion, Hall left TNRCC and went to work as a lobbyist for Waste Management. From 1997 to 2009, Hall earned between $625,000 and $1.25 million from the company, according to Texans for Public Justice.

In 1997, one of Hall’s TNRCC colleagues, public interest counsel Mark Alvarado, told a Texas House committee that Hall’s main interest was pleasing the industries the agency regulated. From an April 11, 1997 Observer article by former editor Lou DuBose:

Mark Alvarado stood up, was sworn in, and began to explain what environmentalists have alleged, industry lobbyists deny, but no public official dares say in a public forum—and certainly not under oath. That is: that the TNRCC—the single agency that stands between the public and environmental health hazards—doesn’t consider the public its client.

“I was there for six years and I heard it time and time again,” Alvarado, the agency’s former public interest counsel, said. “The primary client of the TNRCC is the industry it regulates.”

[…]

It’s more than personality, Alvarado explained. “I can point to the changes in procedural rules, changes in the permitting process, changes in organization,” he said. “There are policy decisions, access to management.”

Several environmental activists around the state told me that Hall has been emphasizing his public affairs consulting gig and downplaying his lobby work.

“He tried to justify working for industry, [saying] that he worked to bring the community and industry together to work on their issues,” said Suzie Canales, a refinery reform advocate in Corpus Christi. “I don’t believe that but even if it was true he was still getting a paycheck from the polluters. How can you be neutral ever again?”

Hall’s pitch has apparently worked on others. Hilton Kelley is an indefatigable organizer in Port Arthur, a town constantly dealing with toxic emissions from its high concentration of petrochemical and refining facilities. Recently, Hall and Kelley sat down for a face-to-face.

“What I told him was, ‘John I really don’t trust you’, I told him that straight out,” said Kelley. “’One minute you’re working for TNRCC and the next minute you’re working for industry helping them to circumvent what community activists are doing.’”

But, Kelley now says that he thinks he might be the man for the job.

“If I had to pick one of the lesser evils I would go with John Hall because I think he has a better working knowledge when it come to refineries, chemical plants and underground injection wells.”

Brigid Shea, a former Austin City Councilman who runs an environmental consulting firm, said she thinks Hall is trying to drive a wedge between environmental justice activists and the more mainstream groups.

Some prominent environmental groups are taking a studiously neutral stance. Sierra Club, for example, has neither endorsed nor rejected Hall while signaling that they are eager for a change. Neil Carman said that the issue of who would lead EPA Region VI, which includes Texas, didn’t come up at a May meeting with EPA administrator Lisa Jackson, but he said they told her that Texas was “under siege” and needed real environmental enforcement. “She got the message. She said this is like the Battle of the Alamo.”

In a recent Observer story we reported that Texas has the highest number of construction deaths in the nation — 142 people died in 2007, according to Dept. of Labor statistics. As our story went to press three workers plunged to their deaths in Austin from a high-rise condo. Apparently, Texas’ appalling safety record finally caught the ear of Secretary of Labor Hilda Solis.

She announced yesterday in San Antonio that her agency will send additional Occupational Safety and Health Administration inspectors to construction work sites in Texas. Solis stated in the press announcement that the new construction safety initiative would start sometime in July. Elizabeth Todd, a spokesperson for OSHA, said they didn’t have a figure for the number of inspectors to be added or a specific date yet on when the initiative might begin next month.

Solis emphasized in the announcement that inspectors would be empowered to launch immediate investigations. “Beginning in July, OSHA will increase the number of inspectors in Texas for a concentrated effort to prevent injuries and fatalities at construction sites. When these inspectors observe unsafe scaffolds, fall risks, trenches or other hazards, they are empowered to launch an immediate investigation,” Solis said. “As I have said since my first day on the job — the U.S. Department of Labor is back in the enforcement business.”

The nonprofit Workers Defense Project in Austin which recently released a study on construction worker safety said Solis’ announcement was an important first step. Cristina Tzintzun, director of the nonprofit, said to be truly effective the inspections would need to be unannounced. Currently, many inspections are often announced in advance.

Another question is whether OSHA will increase its fines for worker safety so that they actually force a contractor or developer to change their work practices. The average work safety violation ranges between $750 to $4,000. As we pointed out in the Observer story, when construction worker Omar Puerto died in 2006, his employer was fined a pittance — just $4,950.

The heat index is 115 today and the ozone action level is high — sounds like the best time to talk about Texas’ dirty air. The Environmental Protection Agency released its national assessment yesterday of air contaminants across the country.

The I-35 corridor (San Antonio, Austin and Dallas) and Houston had the highest number of respiratory and cancer causing contaminants in the state. The EPA looked at 80 cancer causing agents from industry, autos etc.. People living in these hot spot areas had a 100 in 1 million cancer risk whereas the national average is 36 in 1 million.

The data comes from 2002 — the most recent numbers the federal agency had to work with. While this is an interesting barometer on the state of our air quality– the real news is that the Environmental Protection Agency is finally starting to crack down on the Texas Commission on Environmental Quality.

On June 12, Lisa Jackson, the new director of the EPA came personally to Dallas to speak with Texas environmental groups including Sierra Club, Environmental Defense and Public Citizen. Jackson said that Texas’ environmental regulation had become a major concern, according to a Dallas Morning News report.

Neil Carman, a policy expert in air quality for the Lone Star Chapter of the Sierra Club, said the EPA is especially taking issue with Texas allowing companies to have flexible permits. Passed by the Texas Legislature in 1995, Carman characterizes these flexible permits as a “license to pollute.”  Essentially the permits allow companies that may have several episodes of toxic releases to average out the number of pollutants over a period of years. This makes it appear that they are polluting less.

Carman contends that the permits are illegal under the federal Clean Air Act. Environmentalists hope that the EPA will revoke TCEQ’s authority over the Clean Air Act which they find woefully lacking. For example, TCEQ’s commissioners allowed the Asarco copper smelter in El Paso to renew its controversial air permit. Environmentalists and the city of El Paso celebrated when the EPA — just days after the Obama Administration took over — nixed TCEQ’s renewal of the Asarco permit.

Today Sierra Club applauded a ruling by Administrative law judges to put more stringent restrictions on a new coal-fired power plant. The New Jersey-based NRG Energy Inc. is planning to expand the power plant in Jewett to burn an additional 4.3 million tons of coal every year. The plant would emit up to 10 million tons of carbon dioxide a year. We already lead the nation in carbon dioxide releases.

Controlling air toxins sounds like a good idea, however, the matter will now come before the commissioners at the TCEQ.  These same three commissioners approved  Asarco ’s permit to emit lead and mercury into the air surrounding El Paso. Ken Kramer, director of the Lone Star Chapter of the Sierra Club, said the ruling underscores once again  the failure of TCEQ to draft air permits that protect public health and the environment.

“The TCEQ has a chance to redeem itself by denying the permit when it comes before the three TCEQ commissioners,” he said in a press release today.  “Now is the time for Texas to look forward to a clean energy future by rejecting the dirty energy sources of our past.”

Ray Sullivan is a lobbyist who represents energy, transportation and development companies. He will represent these clients for another six days. On July 1, he will whip through the proverbial revolving door and re-enter government as Gov. Rick Perry’s new chief of staff.

When he joins the governor’s office, Sullivan plans to shutter his lobby business and terminate all his remaining lobby contracts, said Allison Castle in the governor’s press office. That elevates him to a slightly higher ethical level than the last high-profile lobbyist-turned Perry chief of staff, Mike “the knife” Toomey, who kept his lobby shop in business during his tour in the gov’s office. Toomey ostensibly handed his business off to a partner, but he returned to the lobby game — and a similar set of clients — a few years later.

The coverage so far of the Sullivan hiring has focused on the political angle: Perry bringing in an experienced political hand — Sullivan served as a Perry aide until joining the lobby in 2002, and he once served Bush during the Florida recount in 2000 — to run the governor’s office during a sure-to-be-fierce campaign year.

But we’re more interested in his business connections. Sullivan was a prominent advocate of energy deregulation and red-light cameras this session.

You can find the full list of Sullivan’s lobby clients here (you’ll have to scroll down a ways).

He had a lobby contract with the energy company Exelon Power Texas (a contract worth as much as $50,000 this year). Sullivan also was a spokesperson for an energy industry group called Texas Competitive Power Advocates. He was quoted in several news stories this session arguing the pro-industry position that electricity deregulation is working in Texas despite increasing electric rates in the deregulated parts of the state. Sullivan’s group has fought efforts by consumer advocates to re-regulate the market.

Sullivan also lobbied for Redflex Traffic Systems, one of the nation’s biggest purveyors of red light cameras. The company has contracts with 40 counties and municipalities in Texas, according to its Web site. The Legislature nearly did away with red light cameras this session — an effort Sullivan fought every step. On the other hand, the TxDOT sunset bill at one point contained a provision that would have allowed highway-side cameras to record license plate numbers of passing cars. Redflex — Sullivan’s soon-to-be former client — might be interested in that contract, if the provision ever becomes law.

Another Sullivan client was the construction services firm HNTB Corp., which consulted for TxDOT on the Trans-Texas Corridor — Perry’s now-widely-unpopular massive toll road project. If and when another TxDOT sunset bill makes its way through the Legislature, HNTB will likely fight any further restrictions on toll-road building.

Just a few business interests to keep in mind as Sullivan begins his new gig.

Section 5 of the Voting Rights Act is still the law of the land … for now. That is the gist of the U.S. Supreme Court decision today in Northwest Austin Municipal Utility District No. 1 v. Holder, et al. The case challenged the provision of the Voting Rights Act requiring all or parts of 16 states with a history of racial discrimination, including Texas and most of the South, to receive federal approval prior to making any changes to voting procedures. (You can downloard the opinion here.)

In a narrowly tailored ruling that sidestepped dicey constitutional issues, Chief Justice John Roberts wrote that the lower court erred in holding that small entities such as the Northwest Austin MUD are not eligible to apply for an exemption (or bail out) from federal pre-clearance requirements. Since the Court was able to rule on these more narrow grounds, he wrote, it had an obligation to do so and avoid striking down the provision in its entirety. (You can read our feature story on the case here.)

His opinion spent some time pointing out “serious constitutional concerns” with Section 5, such as the way it treats states differently based on a coverage formula dating to 1972. He did note, however, that “Congress has amassed a sizable record in support of its decision to extend the pre-clearance requirements, a record the District Court determined ‘document[ed] contemporary racial discrimination in covered states.’” For now, the Court will not have to reconcile these two facts.

Already, many are pointing out the irony that Justice Clarence Thomas, the only African-American on the court, was also the sole opposing vote in the decision, writing that “lack of current evidence of intentional discrimination with respect to voting renders Section 5 unconstitutional,” and, “Punishment for long past sins is not a legitimate basis for imposing a forward-looking preventative measure that has already served its purpose.”

But, while Thomas may have been the only justice who wanted Section 5 killed today, all this decision has done is kick the eventual day of reckoning for the pre-clearance requirement a little farther down the road. When the next challenge comes — and it will, given the dedication and deep pockets of the conservative groups that bankrolled the Austin MUD case — the court may have no choice but to tackle the constitutionality of Section 5 head-on. And it is on that day that the real divisions on the court likely will be laid bare.

Today’s decision is probably the best-case outcome for Section 5 proponents (which may explain the four liberal justices’ conspicuous silence in the opinions). Justice Anthony Kennedy — a potential swing vote who had expressed concerns over the provision during oral arguments — could have sided with the four conservative justices to strike down Section 5. For now, his feelings on the subject will remain hidden.

The long-term impact of this decision is very much up in the air. A lot will be determined by how the Justice Department implements the court’s ruling and whether Congress revisits the Voting Rights Act to loosen the bailout provision or update the coverage formula. And although this case putatively opens the door for more political subdivisions, such as the Austin MUD, to apply for bailout, it will be interesting to see how many actually take the court up on the offer. Travis County, for instance was eligible to bail out even before the court’s decision — but in an amicus brief, it stated that it preferred the pre-clearance requirement because it helped ensure that any voting changes wouldn’t be snared in lawsuits after implementation.

This also means that the state of Texas — which has no realistic hope of qualifying for the bailout provision as it’s currently written — will continue to be required to seek pre-approval for any statewide changes to its voting laws. This is of particular concern, since in the absence of Section 5, controversial measures such as voter ID laws and proof-of-citizenship requirements would have been allowed to go into effect before they could be challenged in court.

About 30 people observed World Refugee Day Saturday by staging a protest outside the T. Don Hutto immigrant detention facility in Taylor. The T. Don Hutto facility has been one of America’s uglier answers to our broken immigration system. A re-purposed jail, the facility was converted under the Bush Administration into a detention center for families awaiting their day in immigration court.

In the past, children were treated like prisoners in lockdown and threatened with separation from their families by the detention guards if they made too much noise. It took a lawsuit by the ACLU in 2007 to improve things inside the facility. Not to say that it still isn’t a prison — just a prison with children’s paintings on the walls and shower curtains in the bathrooms. To learn more about the detention facility check out the documentary “The Least of These” online.

It was about 95 degrees in the shade. Protesters gathered across the street from the facility with signs. A stage was set up where music was played and organizers gave speeches from a diverse group including Border Ambassadors, Amnesty International and LULAC.

Antonio Diaz from San Antonio has been going to the protests for two years.  Diaz said he doesn’t want to see his government locking up children in prison. Today there was no sight of any of the families in the yard surrounding the facility which is ringed with a chain-link fence. It used to be topped with razor wire but that was removed after the ACLU settlement. Diaz said the detainees were not allowed to come out while the protesters were there.

“When we are here protesting they put the families in lockdown,” he says. “They tell them they are not safe outside with us here.”

Jose Orta, a chapter leader for LULAC in Taylor has been protesting against the detention facility since it opened in 2006. His goal is to see the immigration facility closed, although he thinks the facility will be converted back into a regular prison. “It’s no place for a 6-month old baby to be living,” he said. “I’d love to see it close down but it’s been here a long time before the CCA took it over.”

The facility is operated by the private Corrections Corporation of America and funded by our tax dollars. One of only two facilities in the nation — the other is in Pennsylvania — that holds children in detention. Let’s hope the Obama Administration finally reforms our broken immigration system so that the first thing a child sees in this country isn’t a jail cell.

The sight of a 145 pairs of work boots lined up in front of Austin City Hall today was an indelible reminder that Texas is the deadliest state in the nation for construction workers.

Construction workers, politicians, priests and worker advocates met in front of city hall this morning to highlight a new study by the Austin nonprofit Workers Defense Project. The study “Building Austin, Building Injustice: Working Conditions in Austin’s Construction Industry” focuses on workers in Austin, one of the more vibrant housing markets still left in the nation.

Besides being subjected to dangerous work conditions in many cases, one-in-five workers did not get paid, according to the study. Antonio Melo, a construction worker at the event said he and several other workers still hadn’t been paid $20,000 after building condos in East Austin. “I had to sell my truck,” he said. “This is a robbery. We still haven’t been paid but they are selling these condos and making a lot of money.”

The three workers who died last week in Austin were remembered in a prayer given by Rev. John Korcsmar a priest from Dolores Catholic Church in East Austin. The men who fell to their deaths from a collapsed scaffolding on an Austin high-rise condo were identified as 30-year-old Wilson Joel Irias Cerritos from Honduras, 27-year-old Raudel Ramirez Camacho from Mexico and 28-year-old Jesus Angel Lopez Perez from Honduras. Korcsmar blessed the dozens of workers at the event.

“It’s wrong to build such a beautiful place on the broken bones…dead bodies of those that built it,” he told the crowd.

It will take at least 6 months before the federal Occupational Health and Safety Administration comes back with its findings on the accident. For the death we recently chronicled in “Dying to Build” in this issue of the Observer, the company was fined $4,950 for the death of a worker — a pitifully small sum for a man’s life.