On June 28, a coalition of 11 environmental groups petitioned the U.S. Environmental Protection Agency (EPA) under the Administrative Procedure Act and the Clean Air Act to address the alleged failure of Texas Commission for Environmental Quality (TCEQ) to comply with and properly implement public participation and environmental justice requirements in its air permitting program. Specifically, the petition alleges that TCEQ violates the Clean Air Act and Title VI of the Civil Rights Act by: (1) restricting public participation in air permitting by limiting judicial review of permits; (2) allowing applicants to withhold public information during the permitting process; and (3) allowing facilities to operate under the state’s permits by rule (PBR) program, which provides no meaningful opportunity for public participation.

The petitioners claim that even though there is evidence that environmental justice communities in Texas are disproportionately impacted by air pollution, TCEQ claims that neither federal nor state law requires an environmental justice review and refuses to conduct one in support of its permitting actions. The petitioners assert that TCEQ is obligated by several executive orders and Title VI of the Civil Rights Act of 1964 to conduct an environmental justice review of its air permitting actions. The petitioners have requested EPA to initiate both a Title VI compliance review of TCEQ’s program and a SIP call to require the agency to include an environmental justice analysis in all of its air permitting reviews.

The petition also alleges that TCEQ’s air permitting public participation requirements are deficient. First, the petition claims that judicial review of air permits issued by TCEQ is only available for a narrowly defined set of “affected persons” and requires participation in a contested case hearing, which prevents petitioners who would otherwise have standing under the U.S. Constitution from seeking review. Second, the petitioners complain that applicants routinely mark application materials as confidential and that TCEQ air regulations lack any process to evaluate confidential claims for consistency with Clean Air Act requirements. Additionally, they claim, Texas has a lengthy process for referring public requests for confidential information to the attorney general, which not only prevents members of the public from timely accessing important information, but also “prevents citizen enforcement” of the Clean Air Act. Finally, the petition alleges that TCEQ approves thousands of unenforceable permits by rule, including projects at major sources and synthetic minor sources located in attainment and nonattainment areas, without any meaningful opportunity for public participation or enforcement. The petition requests EPA to issue a SIP call requiring Texas to reform its PBR program to incorporate public participation and preconstruction permit review requirements.

The complaints raised about Texas’ PBR program are reminiscent of allegations brought in petitions to object filed by environmental groups between 2017 and 2020 against eight Title V permits issued by TCEQ. The petitions claimed that the permits did not list PBR requirements so that readers could easily ascertain them and that the permits did not contain sufficient monitoring and testing to ensure compliance with the PBRs. In each case, EPA granted the petitioners’ requests and remanded the permits to TCEQ to ensure that PBR requirements were adequately reflected in the permit, along with appropriate monitoring and testing to ensure compliance with those requirements.

The petition filed with EPA regarding the alleged deficiencies in the Texas air permitting program echoes concerns raised in Title VI complaints filed against a number of state air permitting programs in recent years, although many of those complaints were filed in response to particular controversial air permits. In the past two years, civil rights complaints have been filed against air permitting programs in Louisiana, Michigan, Missouri, New York, North Carolina, and Philadelphia. TCEQ was also the subject of a 2021 Title VI complaint related to issuance of a Title V permit for Oxbow Calcining in Port Arthur, Texas.

For additional information on environmental justice or related issues, please contact Andrea Wortzel, Melissa Horne, Viktoriia De Las Casas, or Shawn O’Brien.