University of Houston Law Center Faculty Blog : University of Houston Law Center Faculty Blog

Last week the Texas Commission on Environmental Quality announced that the Houston-Galveston-Brazoria region will not comply with the Clean Air Act’s requirement to eliminate unhealthy levels of ozone by 2010, ensuring that the state will ask the EPA for an extension of time until 2018 to reach attainment. The EPA should just say “No!”

The Clean Air Act has required the states to ensure that their citizens breathe clean air since 1975. Unsatisfied with lagging results for ozone, Congress passed an amendment in 1990 setting up a new timetable for compliance with healthy ozone levels. That statute realistically noted that those cities that had the worst problem with ozone, such as Los Angeles and Houston, could have more time to address the issue. But if cities failed to meet their targeted deadline, automatic provisions required more stringent controls on existing sources and a cut-off of federal assistance for highway building.

Due to extensive lobbying, Houston was given a special compliance deadline of 2007, later than all other cities except Los Angeles.   The deadline was extended to 2010 when new studies showed that the areas must have more stringent ozone controls to provide for the public health. Now the TCEQ claims that meeting that target deadline is impossible. This is simply not true, and the citizens of Houston should not have to suffer because Texas has dragged its feet for thirty years in addressing this problem.

The TCEQ was under a deadline to clean the air of unhealthy ozone in 1975, and given even more explicit direction to do so in 1990. But unlike some other cities that at least made progress in the ensuing decade, the ozone problem in Houston (and in some other Texas cities) got worse, not better. Los Angeles, a far larger city with robust growth on a par with Houston, reduced its unhealthy ozone days by over 75%, ceding its undesirable “most polluted city” moniker to Houston in some years.

The TCEQ, with direction and pressure from the legislature and governor, squandered its opportunities over the years to lay the groundwork for future reductions. Claiming impossibility now is like a teenager putting off his homework to party and play and then asking for an extension to turn it in. Except late homework doesn’t kill people; ozone pollution does.

The TCEQ now wishes to rely on expected future reductions from new automobiles to help with the ozone problems, rather than trying to control the problem now through further stationary source reductions of ozone precursors, intensified control of transport and off-loading equipment, development controls and alternative transportation planning. This not only allows us to be exposed to unhealthful air for a longer period of time, it is also unfair to all of the other states that have taken the difficult steps to ensure the health of their citizens.

It is true that more cost efficient controls could come through national controls on marine, air and rail sources rather than further stationary sources or automobile usage, and that there is a question of the ability of the state to control these sources. But rather than throw up its hands and wait, the state of Texas should be working with the state of California, which is lobbying Congress to change the laws in controlling these sources more effectively. And until that time, the state should control what it can control including port equipment, truck-stops, stationary sources, development location and existing automobile usage.

Granting an extension won’t even necessarily address the problem in the future. There is no guarantee that the TCEQ target of 2018 will be met or that the ozone levels won’t need to be controlled even more strictly in the future. Why should we assume that giving an extension will not only encourage further postponement of real leadership in addressing the problem? In 2018, will the TCEQ again be claiming impossibility in meeting the ozone standard?

In 1996, the state of Georgia claimed that it would be impossible for the Atlanta metro area to meet its earlier deadline for ozone compliance. It was expected that the EPA wouldn’t immediately enforce the law and would instead give Georgia a pass. But the EPA and other federal agencies did follow the law, and the Atlanta area was cut-off from federal highway funding for the metro region.

Spurred by this loss of money, the state created the Georgia Regional Transportation Authority, which required all affected jurisdictions to plan growth and development together or face penalties. With this in place, the state figured out how to control runaway polluting development at no cost to Atlanta’s growth. All it took was an incentive to address the problem.

One would hope that the health of its citizens would be enough incentive for the state of Texas to make the decisions necessary to control ozone in the Houston area. But since that is not the case, we can hope that the EPA will follow the law and not allow the state to continue endangering our health.

Victor B. Flatt is the A.L. O’Quinn Chair in Environmental Law at the University of Houston Law Center

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With the Democrats retaking the House and Senate, the gay and lesbian community, like many interest groups, is hoping that issues important to it will be addressed. Though gay marriage seems to be the issue “du jour” for our community; in reality we should be paying attention to protection from employment discrimination. . .

In his address to the International Gay and Lesbian Leadership Conference last week in Houston, Congressman Barney Frank emphasized this very point in mapping out the Democratic legislative agenda. He hoped that the Democrats could successfully pass the Employment Non-Discrimination Act (ENDA) in both the House and Senate.

Many people forget that in large areas of our country, gays and lesbians can be fired from jobs simply because of their sexual orientation. And though 14 states and most large cities where openly gay persons live (Houston is a notable exception) ostensibly protect the GLBT community from employment discrimination, these local solutions themselves are not sufficient. In 1998, my colleague Marieka Klawitter, a Professor at the University of Washington, and I, did the first statistical study analyzing the effects of non-discrimination clauses on the incomes of census registered gay and lesbian couples. [See Klawitter and Flatt, The Effects of State and Local Anti-Discrimination Policies on Incomes of Same-Sex Couples, 17 Journal of Policy Analysis and Management, No. 4, 658 (1998).] Surprisingly, it appeared that these local and state laws had no statistical impact on the earnings of these census identified couples. This may seem counter to the idea that such laws will help gay and lesbian persons lead better lives. Indeed, much to my dismay, the religious right routinely cites this study for the proposition that non-discrimination laws are un-necessary. But if one doesn’t take pieces of the study out of context, the implication is far different.

Professor Klawitter and I postulated that the real problem is that local laws are ineffective because states and localities do not have the administrative infrastructure and, in the case of cities, penalty power, to effectively enforce the laws. It is one thing to tell the populace that they should not discriminate, and quite another to actually punish them for doing so. Because the federal government is whom we look to for civil rights enforcement, states and localities simply don’t have the resources, or in the case of the cities, the legal power to do much. Despite trying to craft a strong ordinance to protect its citizens from discrimination based on sexual orientation, the City of Atlanta was limited by state law to fine a small amount for a violation and had no personnel to undertake investigations. And even that small penalty provision was challenged by the Druid Hills Country Club.

A similar dynamic was at work in the case of private discrimination based on race. Before the passage of the Civil Rights Laws of 1964, 25 states had laws prohibiting private racial discrimination, yet significant economic gains did not occur for African-Americans until after the prohibition was added to federal law.

The ability to live openly and not lose one’s job is important for anyone, and the GLBT community must strive to accomplish this effectively. 80% of the American public supports these non-discriminatory principles, and the Senate came within one vote of passage several years ago. It is time to try again.

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While Democrats celebrate their national victory and talk of a change in direction in Iraq, another important issue may have been decisive in the race for State District 134 here in Houston. Despite winning two previous terms in a Republican leaning state district, Republican Representative Martha Wong was decisively turned out of office on Nov. 7, in favor of Democratic candidate Ellen Cohen. Moreover the margin of victory surprised all of the pundits.  Did Martha Wong lose because she didn't protect Houston's environment?

 

What happened in that race, and what does it mean for our city? Representative Wong was criticized in many issues, including health care, and gay rights, but her positions on those areas did not necessarily differ from that of the Republican state party in general, and Republicans comprise a majority of her district. But her negative vote last year on legislation that attempted to address the City of Houston’s severe toxic air pollution may have cost her.   In 2005, when investigative reports in the Houston Chronicle called attention to Houston’s harmful air quality, the Texas legislature responded by proposing several new laws. Every one of these proposed laws was opposed by Representative Wong. Again, this is not particularly out of step with the state Republican position on the issue, but unlike the others, this may have hit closer to home for residents of the 134^th. The Houston Chronicle focused on this in its endorsement of Ellen Cohen, and I believe this may have provided the traction for Cohen’s victory. It is one thing to have general opinions about the business regulatory environment, and quite another to have concerns over the very air that one breathes. This validates Mayor White’s plan to address the environment despite state inaction, but hopefully this will serve as a wakeup call to the Republicans in the Houston area and force them to work harder on finding bipartisan solutions to Houston’s air toxics problem.

A report from the Houston Endowment and another from the Center for Progressive Reform last month both illuminated problems in the way our current state laws address air toxics. The Houston Endowment report identifies a “road map” for effectively changing our state laws to address these deficiencies. Well-defined standards and stronger enforcement systems are at the top of the list. The report uses the best and most recent studies of health impacts of the most dangerous air toxics to recommend maximum allowable levels of these air pollutants. It also suggests interim standards that could be applied to help alleviate the worst “hot spots”, and identifies suitable standards to be applied over the long term. As a whole, these measures would help protect Texans from health problems caused by the uncontrolled actions of pollution sources.

The report also recommends that pollution sources be responsible for ensuring they are not contributing to an increased risk to the public through regular operations or through occasional “upsets” and fugitive emissions. Industrial plants should be required to monitor their own site boundaries for any violation of new ambient standards, and report these results to the state. (Fenceline Laser Detection devices are a feasible alternative already used at some sites, and the equipment represents a relatively inexpensive means of verifying compliance.)

Other states with far fewer hazardous air pollution issues have successfully amended their laws to lower allowable ambient standards for the worst pollutants, and to require the sources of these toxics to ensure that they are not contributing to an increased health risk. And while it will be harder to achieve the same levels here because we have so many sources, our heightened health risks should spur us to do more, not less.

I hope that Representative Cohen will take the lead on this issue. One thing is certain: every day that we wait for lawmakers to take action endangers our citizens and helps erode the quality of life in our area. New laws could provide important protections – but they will not materialize unless the public demands them.

Victor B. Flatt is the A.L. O’Quinn Chair in Environmental Law at the University of Houston Law Center. He is a member scholar of the Center for Progressive Reform, and was a principal investigator on “The Control of Air Toxics: Toxicology Motivations and Houston Implications,” a report by the Houston Endowment.

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