Up in Smoke

See end for a listing of environmental bills discussed in the article.

When the dust clears from the 78th legislative session, Texans will find that legislators have radically redrawn the environmental landscape. The future that lawmakers have envisioned for us will look something like this: In dry years, coastal estuaries will die as the water from Lone Star rivers is siphoned off for consumption. Highways will be crisscrossed with trucks toting the nation’s radioactive waste to a mega-dump in West Texas. Drinking water in small communities will become exempt from federal water quality standards, exposing Texans to dangerous amounts of heavy metals. Barrier islands in the Gulf will be opened to development. Companies that store hazardous waste and unwittingly contaminate groundwater will be indemnified against liability. Thanks to an assault on the Open Beaches Act, the public will lose its legal right to access parts of the coastline. The metropolitan areas of Houston, El Paso, Dallas and Port Arthur, where the air quality already violates EPA standards, will be joined in non-compliance by the cities of Austin, San Antonio, and Tyler. District attorneys will be stripped of their power to prosecute environmental polluters. And the underfunded Texas Commission on Environmental Quality (TCEQ) will lose its ability to use certain aspects of a regulated company’s compliance history to enforce the law.

Lege veteran lobbyist Tom “Smitty” Smith of Public Citizen says, “I’ve been watching for 22 years — 11 sessions — and this is the worst I’ve ever seen.”

Cleaning up pollution and protecting ecosystems has never been a Texas legislative priority. But because the budget deficit, education, and tort reform are receiving the bulk of media attention, the harm against the environment is being perpetrated legislatively largely under the public’s radar this session. In a time when there is talk of throwing grandma out of her nursing home and denying poor kids access to dialysis, few people worry about environmental legislation — the consequences of which might not be felt for years.

The moment that best encapsulates what the Legislature has done to the environment occurred, either ironically or deliberately, on April 22nd, Earth Day. On that day, George “Buddy” West’s (R-Odessa) HB 1567 came to the House floor. The bill allows the state to grant a license to a private company for disposal in West Texas of federal low-level radioactive waste. The Sierra Club estimates that the company doing the disposing will reap profits of over $100 billion in fees. When either the financial windfall tapers off or the “disposed” nuclear waste begins to leak, the business can take its cash and walk away. The title to and liability for the waste will then be left with the state.

One company, Waste Control Specialists (WCS), has been strenuously lobbying for the radioactive waste legislation since 1995. Owners and executives from WCS and its parent company, Valhi, spent $558,000 on political contributions to Texas legislators, officials and Political Action Committees in 2001 and 2002. The biggest beneficiaries were Gov. Rick Perry ($150,000) and Lt. Gov. David Dewhurst ($48,000). The campaign coffers of Rep. West and House Speaker Tom Craddick (R-Midland) also benefited from the generosity of WCS owners to the tune of $7,250.

During the House floor debate, a couple of brave legislators led by Rep. Lon Burnam (D-Fort Worth) launched a series of amendments at the bill. Most House members ignored the debate, preferring to surf the web at their desks or talk amongst themselves. In the end, amendments not acceptable to the author were tabled into oblivion. The bill passed the House by a 107-34 vote, and was quickly scheduled to be heard in the Senate. The strong show of support for what has historically been a highly controversial piece of legislation was succinctly explained by Rep. Burnam: “Word is, it’s on Craddick’s top five payback list.”

The radioactive waste bill isn’t the only bad environmental legislation this spring. But because the perennial nuke bill has been defeated on either the House or Senate side three times before, its unchecked success this session illustrates the new environmental order. “Passing a bill on Earth Day that turns our state into the nation’s radioactive waste dumping ground signals the contempt of the Texas House for protecting the health and quality of life of the people of Texas,” says Sierra Club Outreach Coordinator Erin Rogers.

Rogers is also the facilitator of the Alliance for a Clean Texas (ACT), a partnership of more than 20 environmental, consumer, and religious organizations concerned with the state’s environment, including the NAACP Environmental Justice Committee and the Republicans for Environmental Protection. The group formed in 2001 and proved itself an adept lobbying force. Last session they pushed through legislative reforms of TCEQ and closed the infamous “grandfather loophole” for industrial air polluters. Bolstered by their past success, ACT entered into the 78th legislative session with an ambitious agenda.

At a press conference in January of this year, ACT outlined numerous recommendations for legislators. The coalition prioritized increased use of wind energy and water-conservation strategies. They were set to lobby for millions of more dollars for state parks, routine mercury testing of Texas fish, and the implementation of “green” building initiatives. A ban on federal nuclear waste disposal and proper funding for the Texas Emission Reduction Program were on their list of priorities, as was keeping water from being siphoned from rivers. Aware that budgetary times were tough, they promised that enforcing environmental laws would bring in funds for the state. Most felt that a combination of constituent grassroots pressure and earnest policy debates with lawmakers would allow them to have an impact on the process. Standing shoulder to shoulder in the Speaker’s Committee Room and presenting the press with a booklet full of photos, graphs and a dozen recommendations, the alliance was upbeat and ready to rumble.

What they couldn’t anticipate, however, was the Republican leadership’s all-out ideological war against progressive movements in the state. The environment, along with public schools, children’s health, and the poor, would become another casualty of the new right-wing revolution in Texas.

The first big warning of catastrophe for the environmentalists was the announcement of committee assignments. According to Public Citizen’s Smith, this session’s committees are “very carefully stacked to prevent any pro-environment legislation from coming out.” Aside from a few water conservation bills (read: low-flow toilets) moving through the Senate or by-passing the House Environmental Regulation Committee, ACT priority legislation was getting flushed like dead fish while the kids were away at school. According to the Sierra Club’s Rogers, good environmental legislation faced “a complete shutout” this session.

The key House committee on the environment is misnamed Environ-mental Regulation. It is led by Rep. Dennis Bonnen (R-Angleton), a 31-year-old insurance salesman from Brazoria County. All session long, Bonnen has ferociously blocked sound ecological bills while quickly moving industry-friendly legislation. Chairman Bonnen is also a crusader against the Environmental Protection Agency, which he recently condemned as “overbearing.” In response to federal analysis of a bill currently under consideration in the Texas Lege, Bonnen was quoted in The Brazosport Facts accusing the EPA of being “arrogant” and “trying to dictate environmental policy in the state of Texas.”

Bonnen’s zeal as an anti-environmental radical earned him the Clean Air Villain of the Month Award by the Washington, D.C.-based Clean Air Trust. When testifying in front of Bonnen at a May Environmental Regulation committee hearing, Karen Hadden of the Sustainable Energy and Economic Development (SEED) Coalition called attention to the “award” Bonnen earned. His fellow committee members burst into laughter and applause. Bonnen replied with a huge grin on his face, “I’m quite proud of that honor.”

“I would hope not,” answered Hadden, who explained that the Clean Air Trust is a national organization that fights for the basic right of unpolluted air to breathe.

“Well I am!” the chairman retorted.

By any measure, Bonnen is a top contender for worst legislator of the session. He has authored numerous bad bills including one that indemnifies toxic polluters and another that transfers state parkland to the General Land Office. With the exception of the emission reduction funding plan and his authorship on a bill targeting sludge disposal in his district, environmental leaders say he has refused to work with them.

He has also become a legislative enforcer, pressuring members who have the audacity to disagree with leadership. One example of this occurred on the House floor while Bonnen was helping Rep. Jaime Capelo (D-Corpus Christi) push through SB 1265, authored by Sen. Ken Armbrister (D-Victoria). The bill strips district attorneys of their authority to initiate prosecution of environmental crimes. A number of members argued against the bill. Among them was Speaker Pro Tem Sylvester Turner (D-Houston), who said: “I filed a bill that went to Environmental Dereg, I mean Regulation, that tried to cut down on refineries and others who were polluting within two miles of our schools, and that bill did not come through the committee. But this bill, that de-criminalizes environmental polluters — this bill came through the committee and is on this floor!”

For the first time all session, opposition was building against a Bonnen-blessed bill. Republicans were even voting not to table Democratic amendments. One amendment offered by Rep. Robert Puente (D-San Antonio) failed by just four votes. Sensing a possible coup, Bonnen made hurried visits to noncompliant members at their desks. Approaching Rep. Jack Stick (R-Austin) regarding his failure to vote along the party line, Bonnen leaned over a neighboring desk, pointed his finger at Stick’s face, and said threateningly, “Thank you, Jack. Thank you.”

Stick voted against the bill anyway. Unfortunately, not enough other Republicans stood up to Bonnen and the leadership; the measure is heading to Governor Rick Perry’s desk. Jim Marston, director of Environmental Defense Texas, describes this session as “irrational,” and points to Bonnen as part of the problem. (Marston is also a board member of the Texas Democracy Foundation, publisher of the Observer.) He says that in the past, “There have always been members out there that were showing off or demagoguing, but they weren’t committee chairs.”

Rep. Bonnen refused to answer questions nor would he respond to written queries submitted to his office. Bonnen’s Senate counterpart, Ken Armbrister, has also come under heavy criticism from the environmental community. Chair of the Natural Resources Committee, Sen. Armbrister has pushed four of his own deregulation bills while stalling most of the progressive legislation referred to his committee. Armbrister authored the aforementioned bill terminating the power of district attorneys to prosecute environmental crimes. He has fronted a bill straight from the desk of the Senior Vice President of the Texas Chemical Council that hobbles TCEQ’s use of compliance histories for enforcement. Armbrister has also teamed up with Rep. Bonnen on a bill to overhaul TCEQ’s permitting procedures and partnered with Rep. Puente on legislation targeting conservationists’ efforts to keep water flowing in Texas rivers.

Sen. Armbrister insists he has “ensured that all points of view and that all parties had the chance to testify on the various bills before the Committee.” But while Chairman Armbrister has held lengthy hearings on just over half of the ACT -supported bills referred to the committee, the majority of those have been left pending. Only two were reported out of committee by the second week of May.

Armbrister dismisses environmentalists as complainers. “After 20 years in the legislature it’s my observation that environmental groups are never satisfied no matter what you do or how you try to work with them, and that’s why they are not more effective.”

With Bonnen and Armbrister controlling the majority of the environmental legislation this session, environmental interests were routinely disregarded. In addition to those referred to the Senate Natural Resources Committee, the Alliance for a Clean Texas supported 11 bills that were referred to the House Environmental Regulation Committee. Only six of those 11 have received a hearing, and each has been left pending instead of moving on to the House floor. In contrast, eight bills that ACT characterizes as harmful to the environment have been favorably reported out of Bonnen’s committee, and five have already passed a House vote.

As with Rep. Turner’s bill on air quality monitoring near schools, the Environmental Regulation committee is also stalling HB 877, authored by freshman Rep. Eddie Rodriguez (D-Austin). The Rodriguez bill requires industries that break state pollution laws to pay fines equal to the amount they save by their violations. Currently, it is more cost-effective for businesses to violate emissions standards and risk a slap on the wrist from TCEQ than it is to be environmentally responsible. HB 877 could earn the state up to $3 million a year from enforcement fines and remove financial incentives for corporate polluting.

When HB 877 didn’t get a hearing by the end of March, Rodriguez pulled a second bill of his also referred to Bonnen’s committee in order to get HB 877 an audience. While Rodriguez says that there was no commitment made to him that pulling one would help the prospects of the other, “I did it with the expectation I would get a hearing on . And that,” he adds with resignation, “was three weeks ago.” At press time, HB 877 still hasn’t been scheduled for a hearing.

With only a few weeks left in the session, environmentalists are focusing on defense. Since their good bills are stalled in the system anyway, they are hoping time will run out on the remaining bad bills. At this point, their best friend may be the clock.

They are also planning for the future. The session has underscored the need for environmentalists to focus more on the grassroots and to expand their mainstream membership. Environmentalists in Texas are often inaccurately stereotyped as a gaggle of liberals from the “Live Music Capital of the World” out to create problems for small-town life. In reality, one is more likely to find jackets and ties among ACT members than a pair of Birkenstocks. For all their education and organization, however, some point out that having the same Austinites repeatedly testify at committee hearings may be ineffective. “Are East and West Texas legislators being convinced by this? It’s valiant, but the rest of Texas needs to participate,” reasons one statehouse insider who stressed the need for testimony by “plain folks” to sway lawmakers.

Environmentalists have begun to cultivate moderate Republicans willing to carry worthwhile legislation. Public Citizen’s Smith notes that Texas has never had strong environmental leadership — regardless of party affiliation — and has become a chemical dumping ground as a result of it. He says the challenge now is to recruit Republicans that are not afraid to oppose either Craddick or the people in the “Owner’s Box,” a term used this session to describe the powerful lobby interests and campaign contributors calling the shots.

Such efforts pay off. One example this session involved Rep. Vicki Truitt (R-Southlake) and her vote on the radioactive waste bill. One of only three Republicans to oppose the nuke legislation, Truitt voted against it because a constituent educated her on the bill. John Rath, a father of two from Grapevine, met with Truitt about the nuclear waste bill and its dangers before the session, and kept her informed as the bill sailed toward a vote.

“I don’t have an ax to grind, but what I know about the nuclear industry makes me very nervous,” says Rath, who joined the Sierra Club after years of cycling and other outdoor activities. “We have a lot of issues in this state — air quality, water — and I think we need to take a more pro-active, sustainable position.” Rath points out that not all elected officials are as open to listening to their voters as Truitt has shown herself to be, nor do they necessarily have the courage to vote against the speaker’s wishes.

Truitt successfully carried an amendment to the rad waste bill that required the two most dangerous types of waste to be stored above ground rather than dumped in pits. The Truitt amendment represents the only environmental victory in the House debate on nuclear waste this session.

But heavy recruitment of moderate Republicans likely will not be enough. Some activists are looking to the past for guidance in the future. The Sierra Club’s Rogers points out that it was the activities of the Civil Rights movement — the sit-ins and freedom rides — that forced a change in the segregated South. She believes it will take more than constituent calls to House representatives for Texas’ environment to be cleaned up and protected; it will take a statewide change in consciousness. “The Texas environmental movement needs to re-examine its tactics and come up with creative new ideas to deal with this sophisticated, modern Republican machine,” believes Rogers.

Some environmentalists are finally getting more serious about involving Texas’ burgeoning non-Anglo populations. The 2000 census statistics show that 32 percent of the state’s population is of Hispanic or Latino origin and 12 percent is African-American. The leadership of the Austin-based environmental advocacy groups does not reflect these demographics. A dearth of minority representation in the environmental movement is common nationwide, but only a handful of other states could benefit as significantly by inclusion of the Latino minority. And 20 to 40 years from now, the Hispanic population will outnumber Anglos in Texas.

Environmental Defense’s Marston recognizes that in the coming years, substantial power will rest in the voting hands of Texas’ Latino population. “One of the things we’re going to be working on is increasing our alliance with groups from the Hispanic community — that is definitely going to be part of our strategy.”

Ana Yanez Correa, Policy Director for the League of United Latin American Citizens (LULAC) is painfully aware of the environmental racism that low-income Latino communities face, yet with more immediate issues, such as race-based police brutality, resources can’t easily be stretched to incorporate environmental activism as a priority. Correa says LULAC would like to form a partnership with environmental groups in order “to provide information on critical environmental justice issues” to the local LULAC councils in Texas. She also has ideas on how the environmental movement can reach Latinos. For starters, it must learn how to communicate with them. “If you want Latinos to be a part of your group, you have to have information in Spanish, and you have to go to the Spanish media,” she says.

When the radioactive waste bill came to the Senate floor, the debate lasted just over two hours. Senator Duncan, while effective in changing the licensing agency designated in the bill from the Texas Department of Health to TCEQ, failed in an attempt to place a reasonable cap on how much federal waste the bill would allow at the dump. Environmentalists say Duncan had led them to believe that if he was not successful in adding an amendment restricting the amount of federal waste, he would try and block the entire piece of legislation. But instead of fighting the bill, Duncan added himself to the list of disappointments dealt to conservationists this session. One environmental lobbyist said of Duncan afterwards: “I fully expected that when his amendment did not pass he would try killing the bill. But he didn’t. He just gave up.”

On the first Wednesday in May, Waste Control Specialists got the nuclear waste disposal bill it paid for, with a roll call vote of 23-6.

Amber Novak is a legislative intern for the Observer.

The Good, the Bad, and the Really Ugly

THE GOOD

HB 877 by Rep. Eddie Rodriguez (D-Austin)

SB 1878 by Sen. Juan “Chuy” Hinojosa (D-McAllen)

Requires TCEQ to levy stiffer penalties against polluters so that companies no longer save money by paying slap-on-the-wrist fines instead of operating clean facilities.

HB 2230 by Rep. Sylvester Turner (D-Houston)

Requires comprehensive air monitoring at some refineries and nearby schools.

HB 1365 by Rep. Dennis Bonnen (R-Angleton)

Funds the Texas Emission Reduction Program (TERP), a federally mandated air clean up program passed last session and later stripped of its funding. Without a fully funded TERP, the state could lose federal highway money.

THE BAD

HB 231 by Rep. Craig Eiland (D-Galveston)

SB 463 by Sen. Kyle Janek (R-Harris)

Opens barrier islands to further development by making development insurable.

HB 1063 by Rep. Wayne Smith (R-Baytown)

SB 455 by Sen. Ken Armbrister (D-Victoria)

Waters down current law by making optional the provision that requires TCEQ to look at a facility’s pollution record (known as a compliance history) when issuing permits or crafting enforcement decisions. Mandates compliance histories be specific to individual plants rather than tying transgressions to the company that owns the facility.

HB 2875 by Rep. Dennis Bonnen (R-Angleton)

Changes the definition of “disposal” of hazardous waste, medical waste, low-level radioactive waste, etc., to limit criminal penalties. Companies disposing of hazardous waste on their own grounds could not be prosecuted when the contaminants leave the property into the soil, water or air.

HB 1457 by Rep. Craig Eiland (D-Galveston)

SB 554 by Sen. Kyle Janek (R-Harris)

Allows the Land Commissioner to prevent the Attorney General from enforcing the Open Beaches Act for a two-year period on beach areas affected by a hurricane.

HB 1567 by Rep. George “Buddy” West (R-Odessa)

SB 824 by Sen. Teel Bivins (R-Amarillo)

Creates a national low-level nuclear waste dump in West Texas, a contract long coveted by a major political contributor.

HB 1630 by Rep. Harvey Hilderbran (R- Kerrville)

SB 856 by Sen. Frank Madla (D-San Antonio)

Exempts small community water systems from federal public health standards covering certain naturally occurring materials such as arsenic.

HB 2877 by Rep. Dennis Bonnen (R-Angleton)

SB 1263 by Sen. Ken Armbrister (D-Victoria)

Restricts public participation in TCEQ permitting procedures.

HB 3156 by Rep. Dennis Bonnen (R-Angleton)

Requires the Texas Parks and Wildlife Department to transfer all property, including state parks, to the General Land Office.

HB 3164 by Rep. Jaime Capelo (D-Corpus Christi)

SB1265 by Sen. Ken Armbrister (D-Victoria)

Strips district attorneys of authority to initiate criminal prosecution of environmental crimes.

HB 3340 by Rep. Robert Puente (D-San Antonio)

SB 1374 by Sen. Ken Armbrister (D-Victoria)

Establishes a commission to study how much fresh water is needed in Texas rivers for the ecological and financial well-being of downstream estuaries and bays. During the study period, the bill prevents TCEQ from issuing permits for instream flows dedicated to environmental needs or bay and estuary inflows. At the same time, it does not place a moratorium on permits to pump water out of the rivers. —A.N.