The 86thRegular Session of the Texas Legislature adjourned on May 27th, and the period during which Governor Abbott could sign, file without signature, or veto legislation ended on June 16th. The session overall was high achieving. The Governor and Legislature accomplished comprehensive school finance reform (with increased state spending on schools), the long-sought goal of reining in local property tax rate hikes, and improvements in mental health care. To whatever extent things went off the rails, they didn’t stay there for very long, and the session was notable for its cooperative spirit. Some groused it was even boring. I’ll take boring.
With the dust settling, it’s now time to regroup and examine some of the new environmental laws that will be on the books. Also, because it’s never too early to anticipate the future, we’ll cast an eye to the horizon at the issues that could come up during the interim and next session.
Let’s Do the Numbers.
First, the numbers, crunched by Texas Legislature Online. Overall, the Governor signed 1,323 bills; filed 144 without his signature; and vetoed 58.
Just 13 percent of the bills that will become law dealt with air, water (including district creations), energy, waste, and the environmental elements of disaster response. Considering how many environmental bills were filed (about a 65 percent increase over the 85th Regular Session), not very many made it all the way through. What did, and didn’t, is consequential.
HB 1/SB 500.
Both the budget for the next biennium and the supplemental spending bill for this fiscal year contain new provisions supporting TCEQ’s mission.
Governor Abbott signed SB 500 (Nelson/Zerwas) on June 6th. It expanded the TCEQ’s budget authority to pay for the expedited air permitting program through the end of the fiscal year. TCEQ also got money for the Rio Grande River litigation (the suit against New Mexico) and the capital budget.
The Governor approved HB 1 (Zerwas/Nelson) without any line-item vetoes, something that hasn’t happened in a long time. For TCEQ, the biennial budget, over and above baseline, included additional funding and FTEs (10 total) for the expedited air permitting program, additional FTEs (8 total) to support MSW landfill investigations, and additional monitoring tools.
The so-called “near-nonattainment” rider was also restored (the rider was one of those line-items vetoed last session). The restoration of the funding had been a priority for industry groups, nongovernmental organizations, and locals. The rider now explicitly dictates what the money can be spent on (emissions inventory, monitoring, and administration); and what it cannot be spent on (bicycle use programs, outreach, carpool awareness, and locally enforced programs). It also preserves the ability for the money to be spent in counties adjacent to Bexar (the latter is now nonattainment). The amount of the rider was set at $4.5 million for the biennium.
Another rider dedicates $3 million from the Environmental Radiation Perpetual Care Account to the clean-up of two abandoned uranium mines in South Texas. Another rider provided specific funding ($2 million) for the remediation of the Donna Canal site.
Aggregates.
Of the more than 40 bills affecting this industry filed, only three were ultimately passed and signed.
HB 907 (Huberty/Creighton) enhances penalties for, and changes the inspection frequency of, aggregate production operations. Specifically, a new APO will get a regular TCEQ inspection every two years, instead of three, for the first six years it’s operating (after that period, the schedule goes to every three years). The bill also expressly authorizes unannounced inspections, increases the annual registration fee from $1,000 to $1,500, and nearly doubles maximum penalties for failure to register an APO.
HB 2726 (Kuempel/Creighton) amends a long-standing statute that allowed some construction to begin before issuance of an air permit amendment (though the provision has apparently never been used). Under the amended law, a concrete batch plant located within 880 yards of a residence cannot avail itself of that option.
Finally, HB 1824 (Murr/Flores) includes provisions authored by Senator Creighton that allow the San Jacinto River Authority and the Harris County Flood Control District to take sand, gravel, marl, shell, and mudshell from the San Jacinto River (and its tributaries) in order to help with storm flow conveyance.
Solid Waste Management and Remediation.
In the lead-up to session, observers thought these issues would dominate the environmental discussion. Many bills were filed, but only a few were heard, and even fewer made it.
One that did is HB 1331 (Thompson/Miles). It prescribes a $2000.00 application fee for municipal solid waste facilities. The fiscal note estimates that the bill will result in a positive biennial impact to General Revenue of $44,000.
Another is HB 1435 (Thompson/Birdwell). Now TCEQ will have to inspect an MSW site to ground-truth a permit application. The bill was in response to concerns expressed during the prior interim about TCEQ’s permitting process over-relying on representations from an applicant.
Finally, SB 649 (Zaffirini/Thompson) expands on a recycling study conducted by TCEQ a few years ago. TCEQ, working with the Texas Economic Development and Tourism Office, will have to develop a plan to stimulate recycling markets in Texas. The agency is also required to develop a comprehensive public education program in cooperation with other state agencies. TCEQ is authorized to contract the work out.
Air Permitting and TERP.
Going into session, the priorities were to shore-up (and speed-up) TCEQ’s expedited air permitting program, and to ensure the ongoing funding of the Texas Emissions Reduction Plan. Mission accomplished.
The Governor signed SB 698 (Birdwell/Lozano), which will help shorten processing times and hopefully move expedited permits more, well, expeditiously.
The major TERP bill, HB 3745 (Bell of Montgomery/Birdwell), will also become law. It continued the funding sources until the national ambient air quality standard for ozone is attained. Interestingly, the bill also creates the framework for a new TERP trust fund outside of the Treasury, with TCEQ as trustee. The fund would not be subject to appropriations, which could increase the funding available for use. At the end of each biennium, any unencumbered fund balances would be transferred to the TERP Account. The trust fund provisions, however, won’t take effect until September 1, 2021.
Low-Level Radioactive Waste Management.
After stand-alone bills intended to ensure the economic viability of the Andrews County disposal site foundered, a late amendment that would have at least reduced some costs to the operator was tacked onto SB 1804 (Kolkhorst/Navarez), a widely supported domestic violence bill. Unfortunately for the supporters of that amendment, the bill was vetoed.
Water.
Major legislation governing flood planning will also become law. SB 8 (Perry/Larson) establishes the framework for the Texas Water Development Board to create a state flood plan. The board will have to evaluate current flood control infrastructure and find opportunities to couple flood control and water development. The bill also sets up flood planning regions based on river basins. The board, in coordination with the TCEQ, must also evaluate flood control dams.
The Legislature also took steps to enhance water development, and the Governor made them law. HB 720 (Larson/Perry) enhances aquifer storage projects in the state. Additionally, HB 722 (Larson/Perry) establishes a framework for the development of brackish groundwater.
Disaster Response/Texas Division of Emergency Management.
The Governor signed a suite of disaster response bills to implement lessons learned from Hurricane Harvey. SB 799 (Alvarado/Murphy) moves TDEM from the Department of Public Safety to the Texas A&M System. The bill also addresses debris removal. Finally, the bill establishes a business council to advise the state and local governments on how best to stand-up businesses after a disaster.
HB 5 (Phelan/Kolkhorst), HB 6 (Morrison/Kolkhorst), and HB 7 (Morrison/Huffman) combined will enhance debris management planning and response, remove impediments to disaster response, direct funding towards coastal counties, and enhance contracting processes to aid in preparation and expedite disaster response.
Strategic Fiscal Reviews.
Finally, SB 68 (Nelson/Schaefer) will require the Legislative Budget Board to conduct a fiscal review of agencies that are subject to a Sunset Review. An agency would have to provide a fiscal justification for each activity it conducts, including an assessment of any adverse result if they don’t. The LBB would make recommendations to the Legislature on whether a given activity should be continued. Having strategized and implemented budget cuts at TCEQ, I learned that it’s a valuable exercise to evaluate mandatory versus discretionary programs—such exercises can identify capacity and resources for more urgent priorities.
Looking Downrange.
The next session begins April 1, 2020—Census Day. That day, combined with a certain date the following November, will determine the course of the 87th Legislature. The consequences could easily swamp almost everything else next session, much like school finance and property tax relief dominated this session.
What will it mean for environmental legislation? Interim charges, of course, will telegraph what the Legislature is interested in. When early filing starts after election day, it’s a good bet we will see the return of the perennial issues: broadening who can request a contested case hearing for concrete batch plants and the like; requiring the TCEQ to consider “cumulative” impacts of various sources in permitting; and more tweaks to the TERP program. We may also see another effort to move contested case hearings from the State Office of Administrative Hearings back to TCEQ. We certainly will see another run at eminent domain. The fate of these ideas, of course, will depend in large measure on the outcomes of the election, though not entirely—some environmental issues tend to transcend partisan feeling. These events are still far away, though, so it may be more beneficial to turn our gaze to this coming week and the next few months.
A few days after session ended, I saw a post in social media titled “Sine Die Does Not Mean Sine Done.” The context was an admonition to lobbyists and staffers that the veto period still lay ahead, and I thought is a brilliant play on words. I would also argue, however, that the end of the veto period is merely the end of the first phase. Next up is the interim, and state agencies will now have to put the Legislature’s vision into action through budgets, rules, and guidance. They will uncover something that got overlooked, contort themselves to properly implement a new statute, and encounter advocates who didn’t get what they wanted and will try for a second bite at the apple through implementation.
In many ways, then, the next 18 months merit as much monitoring as session.
