Tex. Supreme Ct Holds Air Quality Permit Preempts City’s Land Use Ordinance

Southern Crushed Concrete v City of Houston, NO. 11-0270, ___S.W.3d ____ (Tex. February 15, 2013).

In this case from the Texas Supreme Court the Court held that the Texas Clean Air Act (“TCAA”) preempts certain local ordinances even if the ordinance is not designed for air quality control but are for land use. The City denied Southern Crushed Concrete’s (SCC) municipal permit application to move a concrete-crushing facility to a new location, even though the Texas Commission on Environmental Quality had previously issued a permit authorizing construction of the facility at the proposed location, because the concrete-crushing operations would violate the Ordinance’s location restriction.

Under the Ordinance, new concrete-crushing operations cannot exist within 1,500 feet of a school facility and other enumerated land uses, measured from property line to property line while the TCAA and Commission rules prohibit the operation within 1,320 measured from the nearest points of the buildings in question, TEX. HEALTH & SAFETY CODE § 382.065(a); 30 TEX. ADMIN. CODE § 116.112(b)(2).  The Court held that the plain language of the TCAA Section 382.113(b) states that a city ordinance “may not make unlawful a condition or act approved or authorized under [the TCAA] or the [C]ommission’s rules or orders.” TEX. HEALTH & SAFETY CODE § 382.113(b).

The City argued that, even if the TCEQ permit represents the Commission’s authorization for approval, such authorization is only for the purpose of protecting air quality, not for general purposes. And, because the Ordinance purports to regulate land use, not air quality, the Ordinance does not actually abrogate the permit.  However, the Court disagreed and noted that the TCAA does not make that distinction. If the City’s contention were true, a city could circumvent a Commission permit that it opposes by merely passing an ordinance that purports to regulate something other than air quality.  As a result, the TCAA preempts the City’s land use ordinance.

If you would like to read the case, please click here.