Air quality ordinance is constitution; no preemption says 1st Court of Appeals


City of Houston v. BCCA Appeal Group, Inc., No. 01-11-00332-CV (Tex. App. – Houston [1st Dist.], August 29, 2013)

The Houston Court of Appeals was asked to determine the constitutionality of ordinances regulating air pollution (preemption). The ordinances were challenged by a group of business owners operating industrial facilities. The trial court granted BCCA’s summary judgment and denied the City’s; the City appealed. In this 34 page opinion the First District Court of Appeals reversed and granted the City’s motion dismissing the case.  In other words, the ordinances are constitutional and not preempted.

The City of Houston created an air quality program which, among other things, required facilities to register with the City and pay a registration fee. The City also criminalized the operation without such registration, which enforcement occurred in municipal court. The ordinances provided an affirmative defense if a facility can show it received a permit from the TCEQ. The ordinances incorporated TCEQ regulations by reference (ensuring that changes to TAC codes were automatically incorporated) and authorized the health inspector to carry out enforcement.

BCCA asserts the ordinances are preempted by state law since the Legislature granted such regulatory powers exclusively to the Texas Commission on Environmental Quality (“TCEQ”) in the Texas Clean Air Act (“TCAA”) and the provisions of the Texas Water Code (TWC) that govern enforcement of the TCAA. The TCEQ has the sole authority to authorize air emissions and issue permits. However, the TCAA also states municipalities retain power to abate nuisances and air pollution as long as such abatement does not prohibit something authorized by a TCEQ permit.

The court held preemption must be made with unmistakable clarity. State law grants the TCEQ power but does not expressly make it exclusive. To the contrary, the TCAA acknowledges a city’s retained power. And simply because a state law addresses a subject does not mean it implicitly precludes local governments for regulating the same subject as long as it’s consistent. The registration permit is not preempted. The fees are not preempted as long as there is a reasonable relationship with the administrative costs (where there are in this case since they are the same as TCEQ’s). Enforcement of the substantive quality provisions and incorporate TCEQ regulations are proper. (The court noted they could not be inconsistent unless the TCEQ regs were inconsistent with themselves). The City has the ability to enact and enforce its own ordinances which are consistent with state law.

At the risk of this summary being toooooo long, I would like to point out the BCCA made an interesting argument which was shot down, but was still interesting. It asserted that by incorporating by reference the TCEQ regulations, it unconstitutionally delegated to the TCEQ the ability to amend a City ordinance. The court noted it was unable to find any case law on this subject of incorporation by reference and all future references (so this is a first impression holding).  Luckily, the court held the ongoing “amendment” of the ordinance is meant to ensure the ordinance remains consistent with state law and not invalidated by a TCEQ amendment. As a result, it is permissible.  The end result of this opinion is the City can regulate air-quality consistent with state law and can require registrations.

If you would like to read this opinion click here.



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