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money? What was the TACB doing? This is what: TACB officials flew to Washington where they called on Congress to slice up the Clean Air Act. Specifically, they recommended that all deadlines and penalties in the Clean Air Act be eliminated. In other words, stop requiring what we haven’t done. The TACB officials were armed with a slick and professional-looking study that had been funded by industry. One environmentalist said the study had been done by people with “credentials but no conscience,” particularly no conscience concerning the sections of Houston that are regularly bombarded by hydrocarbons and chemical fallout. Unbelievable as it was, the study claimed that part of Houston’s pollution problem was being caused by hydrocarbons emitted from trees in East Texas. If that wasn’t enough, TACB officials rolled out their best gloom and doom and warned of the dire economic impact of meeting the requirements of the law. They forgot to mention a study done by one of the TACB’s own consultants that said the petrochemical industry was burning money and that pollution control equipment would probably pay for itself since it would be recovering materials that could be re-used. The citizens who filed suit were confident that the Fifth Circuit would see through the hollowness of the state’s efforts to comply with the law. On appeal, the suit honed in on the most glaring examples of the state’s non-plan. One thing the state was required to do under the 1977 amendments was set up what was called “alternative site analysis.” The law said that such an analysis should “demonstrate that benefits of the proposed source \(of new pollumental and social costs imposed as a result of its location. . . .” The question is whether the number of jobs created is worth adding more pollution to an already bad problem. \(People forget that the petrochemical industry is capital intensive, not labor intensive. A $200 million chemical plant will employ about 200 people. But how many people will it What “alternative site analysis” did was make the state and industry meet head-on the question of who was priority, the public and its air or industry and its pollution. The answer to that question came in 1979 when the air board, with the help of the petrochemical industry, pushed through the legislature a bill that did away with language in the state laws which gave the TACB the authority to do “alternative site analysis.” But the TACB did do something. On the permit applications that companies are required to fill out before they routinely get their permits, the TACB put a box. The company could put a check in the box, indisome type of “alternative site analysis.” The TACB did no follow-up to determine if the analysis had actually been performed. With permits being issued left and right for new plants in Houston, the state’s environmental bureaucrats started to worry that the feds, who couldn’t make industry clean up its act, might move in on the public and require inspection and maintenance of cars hoping to alleviate some of the growing problem by controlling automobile emissions. The TACB, the petrochemical industry, and the legislature got together and worked out a very nice deal. In case an inspection and maintenance program was ever put into place, industry would be credited with the reductions in emissions and could pollute more. If an inspection/maintenance plan ever came time the average working Joe put out forty or fifty dollars to reduce the pollutants his car was putting out, private interests, like the petrochemical industry, would benefit. But none of this swayed a three-judge panel at the Fifth Circuit Court of Appeals. The check in the box was enough. The state’s promise was enough. Once again, the citizens who filed the suit weren’t allowed to present any evidence on the ability, or even the desire, of the TACB to make good on its promises that it would do something to clean up Houston’s air. In fact, the judges complained of the “poor record” in the case and shifted the blame to the petitioners, the citizens who filed the suit. The judges had apparently forgotten that the “record,” by law, could only be what the EPA had done to make the state comply with the law. The poor record in the case was yet another piece of evidence that proved the point of the suit nothing had been done. The law was being ignored. Reading the ruling in the suit handed down by the three-judge panel is like taking an Alice in Wonderland journey through the judicial system. At best, the logic of the suit is strained. At worst, it is distorted and laughable. At one point, the ruling says “we think that the petitioners’ interpretation of the Clean Air Act is a reasonable one and if the EPA had adopted it, we would uphold it.” In other words, the court was relinquishing one of its most critical responsibilities especially when it comes to environmental matters. That responsibility is to give a fair and objective review of the actions and decisions of bureaucratic agencies like the EPA that act and decide, more times than not, after private interests have had their way. The court refused to be an arbitrator between public and private interests. It refused to apply the law. On some level, the conclusion to the ruling is apologetic: “We do not decide that the state of Texas is complying with the Clean Air Act. We do not decide that the state’s implementation plan providdes for attainment of the national air quality standards as expeditiously as practicable. We do not even decide that the state’s Part D revisions \(meaning, the state’s plan to clean up areas like Housquirements of the 1977 amendments,” the ruling said. Of course, those were the things that the citizens’ suit had asked the court to decide. All the way down the line the courts, the states, the feds no one would even decide, much less do something, despite the fact that the law said what should be done and said in some detail. The next step for the citizens who filed the suit was to appeal to the full court at the Fifth Circuit. The ruling came swiftly and in an ironic form. On a piece of paper, there was a check in a box that said, “Denied.” Greg Cantrell is a free-lance writer living in Pasadena. gInnys ‘ COPYING SERVICE Copying Binding Printing Color Copying Graphics Word Processing Austin Lubbock ,San Marcos THE TEXAS OBSERVER 21