Sunset Commission Punts on TCEQ Reform

Updated below

Calling the just-released Sunset Commission report on the Texas Commission on Environmental Quality a whitewash might be going a bit too far. But not by much. The report studiously avoids any substantive discussion of many of the real problems roiling the agency, instead reducing them to “controversies” that won’t be discussed – or as the Sunset staff delicately put it, TCEQ has been “embroiled in several controversies that complicate the assessment of its performance.”

For example, instead of assessing whether it’s appropriate for TCEQ to be the only state environmental agency to refuse to implement the EPA’s greenhouse gas regulations, the Sunset staff writes it off as “ultimately high-level political and policy issues that do not easily lend themselves to objective staff-level analysis and solution. … Sunset staff simply could not insert itself into such complex negotiations and sensitive legal disputes related to TCEQ’s air permitting program.”

Translation: We’re not going there. I suppose it’s understandable that the Sunset Commission doesn’t want to tread into highly-politicized territory. That would mean perhaps calling into question the wisdom of Perry’s states’-rights and anti-fed campaign where environmental matters are concerned.

But, then, the Sunset staff also avoid taking up the more parochial problem of lax enforcement of polluters. Listen to how they characterize their dodging of the issue:

Criticisms of TCEQ’s approach to regulation, including permitting and enforcement, often lie with the Commission’s implementation of these tools, since in many cases the Commission has ample statutory leeway. While debates stemming from such criticism are important and will continue as the Sunset process proceeds, the assessment of TCEQ’s use of these tools and the impact that TCEQ has on environmental quality is not only technically difficult, but also a hotly debated subject of studies and rhetoric. Ultimately, Sunset staff did not delve into the overarching issues relating to environmental policy of the Legislature, EPA, or the Governor-appointed Commission.

So, the commission has “ample statutory leeway” to enforce environmental law and regulations but the Perry-appointed commissioners choose not to use their power. The Sunset staff look the other way because it’s a “hotly debated subject of studies and rhetoric.” Putting aside the fact that the phrase makes little sense (certain unnamed studies and rhetoric are hotly-debated?), why does “controversy” and “debate” preclude the staff from addressing how TCEQ issues permits and enforces environmental rules? Take a discussion of permitting and enforcement off the table and there’s isn’t that much left to talk about. After all, permitting and enforcement is primarily what a regulatory agency does. No wonder then that the Sunset report spends so much time dwelling on minutiae like problems with TCEQ’s website.

There are a few meaty recommendations in the report. For example, the commission staff recommend increasing the cap on penalties from $10,000 a day to $25,000 a day. They also want to give the agency’s executive director the power to curtail water rights during severe drought emergencies and include recommendations for strengthening the tiny Office of Public Interest Council, a quasi-independent group that represents the public at TCEQ.

Update: The Alliance for Clean Texas, a coalition of environmental groups, has released a statement on the Sunset report. The group is taking a glass-half-full approach, praising the Sunset staff for making some good recommendations but faulting them for not going far enough.

“The Sunset staff has made some excellent recommendations about increasing penalties for pollution and raising the rates that polluters pay,” said Tom “Smitty” Smith of Public Citizen.  “The big ticket item that the staff report avoids is Texas’ flawed permitting program.  We hope that the TCEQ and the U.S. Environmental Protection Agency (EPA) continue to work together to fix our state’s permitting flaws and that this vital issue will not be further complicated by needless politics and grandstanding.”