Here You Come Again

When the smoke clears, the governor and his cronies are gone, and the local Democrats are done dumping on the Greens, something good may yet come of this presidential election season. “I have a theory,” Austin State Representative Elliott Naishtat said of the coming legislative session. “I think that all the negative publicity focused on Texas…has created a window of opportunity for us to make some progress here,” he said. Those relentless recitations of Texas’ shortcomings, in health and human services, criminal justice, and–perhaps worst of all–the environment, may have finally begun to sink in, even for the Lege’s more conservative members. Perhaps they just needed to hear the cold hard facts read by Dan Rather, instead of the Capitol’s resident gadfly, Public Citizen’s Tom “Smitty” Smith.

One policy area where this may bear fruit is the environment: Air pollution tops everyone’s list this session. As Public Citizen’s Smith will point out to members this session, it will cost billions to clean up polluting industries, but the savings in health care costs associated with air pollution (treating asthma, respiratory disease, and cancer) will outdistance those costs in just a few years. Now that a progressive legislator, Houston Senator Rodney Ellis, is chairing the powerful Senate Finance Committee, such arguments might actually hold some sway in the Legislature. Yet conservatives still chair environmental committees on both sides of the statehouse: Buster Brown in the Senate, and Warren Chisum in the House. As air pollution reaches crisis proportions in Texas, however, lines are being drawn for a potential battle that even Brown and Chisum can’t afford to ignore: road builders versus oil refiners.

It hasn’t come to that yet, but it may this session, when the lege takes up Rep. Zeb Zbranek’s bill to close once and for all the so-called “grandfather” loophole for air-polluting industries, including dozens of refineries on the Gulf Coast. Companies that were in operation when the Texas Clean Air Act was passed in 1971 were exempted on the theory that they would eventually upgrade their technology or go out of business. Thirty years later, at least one-third of the state’s air pollution is still exempt from the law, and Texas is in an air pollution crisis, with every major metropolitan area either in non-attainment or near non-attainment of federal air quality regulations. At risk are billions of federal highway dollars per year: If conditions don’t improve, no road money comes down from Washington. Governor Bush responded to that threat with his now-infamous voluntary emissions reduction permit, a toothless law written entirely by industry representatives, that essentially asked companies to come into compliance and provided no disincentive to do otherwise. Although many companies promised to do so, providing fodder for the presidential campaign, few actually followed through. How few? The TNRCC’s official report on S.B. 766 (the voluntary permit bill) is in, and the total amount of reduced emissions, from grandfathered facilities, attributable to the governor’s program, is exactly zero.

The last two years have seen significant reduction in grandfathered pollution, but it is attributable to tough provisions in last session’s utility deregulation bill (S.B. 7), which required major improvements in pollution control at existing coal and natural gas- fired plants as a condition of deregulation. Those provisions made it into the bill, according to Public Citizen’s Smith, as a result of that same specter of lost highway funding. “There was a turning point in the last legislative session when word came down that federal court had ordered highway funds cut off in Atlanta [because of air pollution non-compliance],” recalled Smith, whose group opposed utility deregulation in general but lobbied for the pollution reduction amendments. “And suddenly road and bridge builders started lobbying, and legislators that had ignored me for fifteen years started stopping me in the hall and saying, ‘Dammit, Smitty, why haven’t you gotten this air pollution thing cleared up yet?'”

Thus, while utilities are cleaning up their act, refineries and other industry exempted from the law are not, and it may start to cost the state billions per year in highway dollars. According to lobbyist Lawrence Olsen of Texas Good Roads, a PAC affiliated with the Association of General Contractors, there is widespread concern among highway builders about possible sanctions, though many of Olsen’s “constituents” are more immediately afraid of regulations about to be imposed by the state on non-attainment areas like Houston. The state recently submitted its pollution control plan for the Houston area to the EPA, which seems likely to approve it. But the approval is contingent upon a promise of future reductions not currently accounted for in the plan. In other words, even with proposed lowered speed limits, time limits on use of heavy construction equipment, tailpipe testing, and other painful regulations, the TNRCC would not been able meet the EPA standards, chiefly because the state waited until the problem reached crisis proportions. Something else will have to give. Representative Zbranek thinks the answer is to close the grandfathered loophole once and for all, and he has filed a bill to do that. Zbranek’s rural Houston-area district is surrounded by refineries, many of them along the coast and in Harris County. Though his district has little industry itself, it is lumped in with Harris County in the region’s pollution control plan and must “share the pain” of lowered speed limits and construction regulations. “My angle is that my district is being victimized by the big polluters surrounding us and we’ve been taken advantage of,” he said.

Zbranek served on the conference committee for S.B. 766 last session, when House Democrats led by Glen Maxey of Austin tried and failed to make the emission reduction program mandatory. Zbranek said he knew nobody would volunteer, but he signed off on it because the bill meant a foot in the door and a crack at forcing compliance next session. “I’m hopeful that Ray Allen [the House Republican who sponsored the governor’s plan last session] and Warren Chisum will join with me,” he said. “Because that was one of the agreements we had, that anybody that didn’t sign on this time [for the voluntary plan] wasn’t gonna be happy next time around.” Ironically, Zbranek’s bill, if it passes, may burnish Bush’s reputation in the end. That’s because companies will be given one last chance to volunteer under Bush’s plan, which mandates a more lenient standard for pollution control than current law, before being forced by Zbranek’s bill to apply for the same permit everyone else has had to operate under for a generation. Zbranek predicts they’ll line up to get on board.

There is less cause for optimism in another of the state’s perennial environmental issues: nuclear waste disposal. Spurred by Texas’ two nuke-operating utilities, the state has been trying to build a dump in West Texas at one or another site for over a decade. Local citizens, joined by city and county governments and environmentalists from across the state, have killed each attempt, arguing that the siting process was political, rather than scientific, and that the proposed below-ground burial technology was unsafe. On the surface a battle pitting citizens against power companies over a public safety issue, the fight has quietly evolved into a battle over privatization versus public control, and, once again, a textbook example of two companies bent on using the Lege to gain a competitive advantage over one another. A Texas-based (Andrews County) company called Waste Control Specialists is leading the fight for privatization, aided by their man at the Lege, none other than Senator Buster Brown, head of the Senate Natural Resources Committee. Fighting WCS’s bid to break into the nuke-waste market is a Utah disposal company called Envirocare, which for years has enjoyed a monopoly on for-profit disposal of nuclear waste in the U.S. (in Utah) and doesn’t want to share with Texas. Envirocare has found a champion of sorts in Pampa Republican Warren Chisum, who chairs the House Environmental Regulation Committee. Chisum has stood up for state control of nuke dumping, despite heavy lobbying for privatization from an all-star crew of hired guns.

With Brown’s help, WCS may win big this session. Waste Control sued Envirocare over unfair business practices, and now word around the Capitol is that Envirocare may pull out of the fight in order to settle the suit. WCS may well end up with the utility waste contract, which would include not just Texas waste, but also waste from Vermont and Maine (and quite possibly elsewhere) under an old agreement signed by Governor Richards. Or, under a “compromise” scenario, the state might keep its oversight of utility waste, but allow WCS to dispose of federal government waste, chiefly from the Department of Energy’s nuclear weapons program, which would means untold millions in contracts for WCS. (WCS is already quietly “storing” large amounts of Department of Energy waste at its facility in Andrews, awaiting the opportunity to dispose of it.) This would presumably mean not one, but two dumps in West Texas. Erin Rogers, who represents a coalition of nuke waste watchdogs, calls this a worst-case scenario for public safety. The Texas Attorney General has already informed the Legislature that the state would not be able to control the amount of waste shipped by the DOE to a private company. “Texas would become the nation’s nuke dump,” Rogers said.