Texas Clean Air Act May 19, 2016

In BCCA Appeal Group, Inc. v. The City of Houston, the Texas Supreme Court sided with an industry challenge to a Houston ordinance regulating air quality within its corporate limits. In 1967, the Texas legislature enacted the Texas Clean Air Act. The Act empowered the predecessor agency of the Texas Commission on Environmental Quality (TCEQ) to adopt and enforce rules regarding air quality. The TCEQ administers are a permitting and oversight process for business and industries that emit certain levels of air contaminants.

In an attempt to provide more vigorous enforcement of state rules, the City of Houston enacted an ordinance that provided for additional local fees and enhanced penalties. The Houston ordinance was challenged by a group of refining and chemical plant operators under the theory that the regulatory scheme under the Texas Clean Air Act preempted any inconsistent provisions of the ordinance.

The Texas Supreme Court concluded that the TCEQ had the sole authority to determine the appropriate remedy for violations.   The Court further invalidated a requirement that facilities register with the City by filing an application and paying a corresponding fee, relying again on the pre-emptive effect of the TCEQ’s sole authority to permit facilities. Essentially, facility operators who are in compliance with state rules cannot be required to adhere to inconsistent local rules. This rule of preemption applies in all areas where federal, state and local government have overlapping regulatory rules.

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