Brian Christian Consulting

At this writing and going by Mr. Kronberg’s Sine Die Countdown Clock, we are at 25 days.  A lot is going to be jam-packed into that shrinking space.  This makes it a good time to pause and regroup on where some issues are in the process.  But if you think you hear a loud ticking clock, it is not your imagination.

First the Good News.

On May 3^rd, Comptroller Hegar announced incredibly good news about the state’s finances.  Revising the Biennial Revenue Estimate during session is a fairly unprecedented step, but it has been an unprecedented year.  Basically, the feared deficit for the current biennium, which initially was not as bad as some thought it could be, actually turned into a small surplus, and the Legislature has, if it wants, more money to spend next biennium.  Finally, his estimate for the balance in the Rainy Day Fund increased to about $12.2 billion.  For those of us who were genuinely fretting about the state budget and the effects of the crisis on the vital work of the state and the people who carry it out, this news was a huge relief.  For more information, please click here.

Meanwhile, the Conference Committee on SB 1 is hard at work.  The Legislative Budget Board has released a summary of the differences between the Senate and House versions of the appropriations bill, and you can view that here.  Bottom line for natural resource issues—there’s relatively little daylight between the two bodies.  One issue I have been tracking is TCEQ’s budget request, and while the House and Senate took some different approaches to TCEQ’s priority items, the agency is, on balance, having a pretty darn good session budget-wise.  An eye should also be kept on HB 2, the supplemental appropriations and reductions bill to finish out this biennium.

What about environmental legislation?  For TCEQ, the issues have ranged from permitting of relatively low-risk sources like concrete batch plants to performance standards for above-ground storage tanks.  We have also seen bills to beef up TCEQ’s enforcement process, zap the affirmative defense for emissions events, bake environmental justice considerations into TCEQ’s permitting,  prohibit direct discharges of wastewater into certain stream segments, and allow Texas Parks and Wildlife to participate in certain TCEQ permit actions.

On the water development side of things, the House has a bill that would authorize the Texas Water Development Board to transfer funds from the Water Infrastructure Fund to the Texas Water Development Fund II.  There have also been bills affecting the activities of the state’s water planning activities, including eliminating some functions of the local planning groups and requiring the Board to develop a framework for evaluating water supply projects that may serve more than one regional planning area.

As for waste, the heat and light has been generated by radioactive waste (more on that below).  In contrast to last session, municipal solid waste issues have been quiet this session.

At this point in session, we now have separation between wishes and what may actually become law.  Let us catch up on what appears to be moving (defined here as out of committee or original house).

Aggregates.

Quarries, sand mines, and their related operations (e.g., concrete batch plants) continue to draw widespread attention.  Numerous bills were filed to expand TCEQ’s permitting authority, create local preemption authority, and expand who can request contested case hearings for concrete batch plants.  Most are currently still pending.  Two identical bills that are moving—HB 416 and SB 952—would require concrete batch plant standard permit applications to include a plot plan.  I would look for one of those to become law.  Another, HB 1544, would allow a sand mining operation in Atascosa County to retain its agricultural land tax exemption provided it reclaims the property when operations cease.  That bill is out of the House and is set for a hearing in Senate Finance on May 10^th.  Everything else will ultimately serve as a preview of what else?  TCEQ’s Sunset Review.

Emissions Events, Enforcement, and Environmental Justice.

Going into session, groups such as the Environmental Integrity Project, called for eliminating the affirmative defense to emissions events on the grounds that it is a “loophole.”  Never mind that “affirmative defense” is a common legal concept, but whatever.  Several bills were filed to do away with the affirmative defense, but they have not moved.  Two bills, however, have been voted from committee.  HB 1820 originally sought significant penalty enhancements for emissions events ($1.00 per pound), but the committee substitute backs that out to a study.  The bill, however, would still result in higher penalties across-the-board.  HB 3477 would allow the Secretary of State to terminate corporate privileges for entities under TCEQ enforcement for an “environmental disaster.”  There are no companions, and the bills are still on their way to House Calendars at this point.

None of the bills that would bake environmental justice considerations into TCEQ permitting have received a hearing.  With the United States Environmental Protection Agency recently releasing directional guidance on enforcement vis-a-vis environmental justice, coupled with the general priority EPA is placing on the issue, there will be more to come in the years ahead.

Radioactive Waste.

Two bills were filed this session to change the framework for imports into Texas of low-level radioactive waste for disposal.  HB 2692 and SB 1046 both made it out of their respective committees, but given the highly controversial nature of the issue, their path has been laborious.  The Senate bill was removed from the Intent Calendar in mid-April and has not reappeared.  The House bill made it to the floor on May 5^th only to be recommitted to the House Environmental Regulation Committee because of a point-of-order.  (Disclosure:  I work on this issue but am merely providing an update).  On a related issue, there is daylight between the House and Senate on whether the Texas Low-Level Radioactive Waste Disposal Compact Commission should remain subject to Sunset Review.  The Senate wants to keep them there, whereas the House has language to exempt them.  We will see where that lands.

Texas Emissions Reduction Plan.

With the creation of the TERP Trust Fund outside of the Treasury, it is possible the TCEQ will have access to more funding than ever.  Not surprisingly, then, bills are moving that would expand the use of the money, including for electric motorcycles, air quality monitors, and marine vessels.  SB 1263 would reconfigure the TERP revenue stream and dedicate a percentage of all funds held in the TERP Trust Fund to Congestion Mitigation and Air Quality projects in nonattainment areas.  The bill is over in the House and has been referred to the Appropriations Committee.

Water.

After several sessions of robust debate on water policy, things have been a bit quieter this session (though if we have a bad drought again it could be an entirely different story next time).  HB 2716 is moving right along.  It would allow Texas Parks and Wildlife to participate as a full party in contested case hearings on water rights permit.  If passed, this would represent at least a limited return for TPWD.  Several years ago, that agency was highly active in TCEQ permits.  In addition, HB 4146 is on the General State Calendar for May 7^th.  That bill would prohibit direct wastewater discharges into 81 stream segments in the Canadian, Red, Brazos, Colorado, Guadalupe, San Antonio, Nueces, and Rio Grande River Basins.

The Next 25 Days.

For a refresher, here is a link to the calendar of end-of-session deadlines.  Next week is when the real squeeze officially begins, but really if things are not out of committee by this point, they are destined to be refiled next session, pass over to another plane, or, as noted below, show-up in a different context.

As the focus now shifts from committees to floor action, there will no doubt be the need to spend many hours in front of the computer screen or crammed into a seat in a gallery.  While this story has attempted to highlight some of the environmental legislation that is making at least some progress, any of the issues addressed by stand-alone legislation can be reanimated as a floor amendment.  No doubt many are huddling over their tracked bill lists looking for potential vehicles to give their policy goal a ride.  An equal number are combing committee reports and draft amendments for points-of-order.  And legislators themselves will be throwing sand into the gears to slow things down on the floor as the ticking clock gets louder and louder.  It will take a lot of patience to get through these last 20-odd days.  Good luck, everyone.

xxx