Page 15


Taken Again NEED MORE REGULATION.” lAIt’s not the sort of thing one expects to hear these days from a State Senator, especially a conservative happily riding the latest wave of anti-government sentiment. But Senator Jeff Wentworth had just taken his hat in hand, to the Texas Natural Resources Conservation Commission, on behalf of hundreds of outraged Williamson County residents. The Republican Wentworth’s constituents are trying to prevent Rainbow Materials, Inc., from establishing a concrete batch plant on Highway 1431, north of Austin. They fear the plant will cause air and water pollution, and deplete the area’s already diminishing supply of groundwater. They had come to the TNRCC on October 12 to ask for a public hearing. The Commissioners listened politely, and turned them down. As environmental fights go, this is a minor dust-up. Concrete batch plants are small, non-manufacturing facilities that mix and deliver loads of concrete to construction sites, and they are endemiceven indispensableto burgeoning residential areas like suburban Williamson County. And because they are deemed, under state law and TNRCC regulations, to generate “insignificant”amounts of particulate matter \(i.e., eligible for “standard exemptions” from emissions control permits. It is the standard exemption that Rainbow Materials owner Ramon Carrasquillo has requested from the TNRCC. The Brushy Creek Area Residents, an ad hoc group fighting the plant, frankly acknowledge that they are more concerned about the potential for lowered water tables in neighboring subdivisions than they are about air pollution. The TNRCCas commissioners pointed out to Wentworth and his constituentshas no explicit jurisdiction over groundwater, except as implied in its mission statement. The commissioners therefore voted against a hearing that could have no possible bearing on Rainbow’s standard exemption. The vote prompted Senator Wentworth’s remark to me that “more regulation” was needed to keep concrete batch plants out of “rural-residential” areas. The residents agree, and are waving the banner of “property rights” to defend their homesteads against the industrial invader. They cited protecting the value of their homes, and Wentworth said he would consult his staff to see if the granting of Rainbow’s standard exemption might trigger the state’s obligation to protect neighboring residents from a decrease in their property values. Not surprisingly, it won’t. As Wentworth confirmed a few days later, the takings legislation \(even if it had taken effect before the Brushy Creek residents, although not because, as he suggested, it needs “finetuning” in the next legislative session. If anybody’s interest is protected by SB 14, it is that of Rainbow Materials, Inc.which should be of some comfort to Ram6n Carrasquillo. In the unlikely event that Senator Wentworth succeeds in pressuring the TNRCC to close or move the plant, Carrasquillo might well have a case, under the takings legislation, that government action has diminished the value of his property, and he should be reimbursed accordingly. The protesting residents might be forgiven for not realizing that the takings legdoes little or nothing to protect their interests as homeowners. Conservative legislators, Wentworth prominent among them, have taken great pains to convince suburban voters that governmental regulations especially environmental protectionsare eroding their sovereign rights and endangering their freedom to do as they see fit with their own property. Wentworth strongly supported the takings legislation, explicitly intended to weaken environmental protections. Moreover, he sponsored the so-called Circle C legislation that allowed suburban developers effectively to secede from Austin’s municipal jurisdiction, and thus to escape substantive environmental regulation. For Wentworth now to claim that property rights legislation might defend ordinary Texans from environmental degradation, is laughable. For him to go be fore a group of Republican-appointed TNRCC commissioners, muttering darkly that they remain “unconfirmed” until the next legislative session, demonstrates polit ical cynicism of a high order, even for a Texas legislator. Wentworth’s duplicity is nothing new, but the Williamson County residents are faced with a more intriguing dilemma. They describe themselves as mostly conservative Republicans who supported George Bush against Ann Richards, partly because they felt he would support their property rights against excessive regulation. Yet here they are, appealing to their county commissioners, their state legislators, and the Governor himself to intercede in favor of more regulationperhaps county-wide zoning, perhaps groundwater conservation, perhaps more stringent emissions requirements, and perhaps at least a regulatory agency which would feel obliged to hear them out. They have found themselves in unlikely political alliances with environmental groups \(like the Sierra vative politicians and their corporate supporters, are the representatives of the regulatory devil. Unlike Wentworth, the citizens have the grace at least to admit their predicament. “We shot ourselves in the foot,” said Sue Wiseman, speaking for the Brushy Creek residents. “We supported what we thought were our property rights, and now we find out the real bottom line: only business has property rights, not the citizens.” Wiseman also acknowledged that development is itself part of the problem, and that concrete batch plants go where there is residential growth. “But we want to solve the problemto try to find a way to accommodate growth without destroying our neighborhoods, or using up all our water. Nobody wants to help us. They all say it’s not their problem. But it’s everybody’s problem.” “Everybody’s problem”: a matter for the whole community to resolve together, if necessary by recourse to governmental intervention, to fairly sort out competing interests, and to provide for the common good. The citizens of Williamson County are discovering, painfully, that property rights provide precious little shelter for the public interest. Perhaps the next time a politician attempts to convince them that regulations designed to protect their common resources are instead insufferable oppressions, they’ll be less inclined to be quite so easily taken.M.K 4 OCTOBER 27, 1995