Brian Christian Consulting

This session’s major inflection point will be the week of February 14th. The result of an extended arctic outbreak, the loss of power to millions of homes, the loss of water and/or boil-water notices affecting even more, and the political fallout at the Capitol is that pre-session expectations about what they will focus on have been completely subverted. Priorities have been reset, bills that were not a mote of dust in anyone’s eyes on February 13th have been filed (hello, ERCOT), and the conservation has thoroughly shifted. Yet, the ship of state, as they say, must sail on. Early priorities have not gone anywhere (though thankfully the budget was not as dire as feared), but the anticipated workload has increased as a result of the crisis. There is still much to process and digest, but let’s take a quick snapshot of where things stand. Let’s Do the Numbers. Yesterday, March 12th, marked the filing deadline. Purported back-ups in the legislative pipeline meant more bar napkin bills than in the last 30 years (I saw one that looked like it was produced on a typewriter and the amendments were hard to follow). Let’s do the numbers first, then highlight some issues. Six thousand, nine hundred, and nineteen (6,919) bills and joint resolutions have been filed. This compares to 7,541 from last session. It would be tempting to conclude the Pandemic-related dynamics of this session accounts for fewer bills being filed. Interestingly, the total number might have been even smaller if not for the ERCOT and other energy-related bills. Not surprisingly, concurrent resolutions and resolutions are way down from prior years, again because the members are doing fewer ceremonial activities this year. As for Article VI agencies, such as the Texas Commission on Environmental Quality (TCEQ), the Railroad Commission (RRC), and the Texas Water Development Board (TWDB), the downward trend is also borne out. 473 bills were filed in 2019. This time around, 358 were filed, a reduction of 24 percent. TCEQ is the big winner, accounting for 38 percent of the filed natural resource agency bills. (A note on these numbers—they were derived from Texas Legislature Online using the “governmental agencies” search. Due to overlaps, it would be misleading to just add up the totals for each subject matter search, but suffice to say the total number of environmental bills of all types—air, water, waste, procedural—is likely higher.) The Budget. The Legislative Budget Board (LBB) has posted the decision documents for the Senate Finance workgroups. The document for the Article VI Natural Resource agencies can be viewed here. The document is handy for seeing the outstanding items for consideration at a granular level. For TCEQ, this would include the targeted pay raises for high-turnover positions (funded in the House), as well as a brand-spanking new exceptional item request to enhance the Texas Optimization Program for Surface Water Treatment Plants. That is a nifty program of technical experts that can embed with a water system, and the need became more apparent during the recent winter storm. The Article VI, VII, and VIII workgroup is chaired by Senator Nichols and includes Senators Hancock, Perry, and Whitmire. The House Appropriations Subcommittees met earlier this month and have not scheduled any further meetings. Once the LBB posts the decision documents, I’ll post the link. Radioactive Waste. Full disclosure—I work on issues related to low-level radioactive waste management, so here I will merely highlight and not opine. Senate Bill 1046 (Birdwell/Seliger) and HB 2692 (Landgraf) have been filed. In short, the bills would amend statutes relating to the importation of low-level radioactive waste for disposal in Texas. On March 12th, Representative Goodwin filed House Bill 4095, which would require TCEQ to prohibit the transportation, storage, and disposal of Greater Than Class C and high-level radioactive waste in Texas. Aggregates and Allied Industries. Full disclosure again—I also work on aggregates issues, but the same rule will apply. As with last session, a number of bills have been filed to regulate aggregate production operations (e.g., quarries and sand mines) and their related operations such as concrete batch plants. House Bill 4341 (Biedermann) would create an aggregate production operation program at the Railroad Commission, transferring certain duties from TCEQ. House Bill 4478 (Huberty) would require APOs near the San Jacinto River to develop restoration plans. House Bill 1912 (Wilson) and Senate Bill 1209 (Schwertner) are companions. They could expand public meetings on air permits to include other jurisdictional entites (e.g., TxDOT) and require permit conditions for noise, light, and air quality monitors. These bills join dozens of others that cover topics such as siting, local jurisdictional authority in Harris County and Houston, who can request contested case hearings, and best management practices for APOs. The Texas Emissions Reduction Plan. Recall that last session, a bill was passed to establish the TERP Trust Fund outside of the Treasury, with revenues from the various surcharges, as well as the transfer from the state highway fund ($300 million for the biennium in TxDOT’s budget), going directly to the fund starting September 1, 2021. Senate Joint Resolution 52 by Chairman Birdwell proposes a constitutional amendment to fully effectuate the creation of the TERP Trust Fund. Nearly 20 other TERP related bills revisit the Trust Fund approach and revenue allocations, as well as expand existing programs and create new incentives. Environmental Justice. Focus on these issues at the federal level has prompted several bills to be filed in the Texas Legislature. Senate Bill 1294 (Eckhardt) and its companion House Bill 1191 (Goodwin) would establish an Office of Environmental Justice at TCEQ. The office would play a role in permitting. Other bills that would provide for representation of environmental justice communities include Senate Bill 365 by Miles, and House Bill 714 by Reynolds. Finally, Senate Bill 1304 (Blanco) and its companion House Bill 3858 (Ordaz Perez) would create a duty for TCEQ to respond to any inquiry in the language in which it was received and expand the types of public notices subject to alternative language requirements. Emissions Events. House Bill 2369 (Morales Shaw) would requiring the staggered shutdown of regulated entities in advance of a potential weather-related disaster. The concept is to regulate the timing of shutdowns. A number of bills have also been filed to eliminate the affirmative defense for emissions events, such as Senate Bill 684 by Senator Blanco. Sunset. The Sunset Safety Net bills have also been filed. Senate Bill 713 (Buckingham) and House Bill 1860 (Cyrier) move up the Public Utility Commission’s sunset review to the 2022-2023 cycle, and also remove the Texas Low-Level Radioactive Waste Disposal Compact Commission from sunset review. These bills will need to be closely tracked as they can evolve to include other agencies. As noted in the title, this is just a snapshot. Over the next few days, other bills that were filed in the final crush will emerge. This weekend, and in the days ahead, hundreds of people will be poring over thousands of bills, with the clock’s ticking getting louder and louder. Plus, the relatively late-start for all but the budget committees may also mean the pace will accelerate, with speculation that House committees will even vote bills out the same day they are heard. Keeping up, remotely or in-person, may be more challenging than usual. There is much to do. xxx

Brian Christian Consulting

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