Brian Christian Consulting

Sorry to bear these tidings, but pre-filing for the next Regular Session of the Texas Legislature begins November 9, 2020 (when I pointed this out in a presentation a few weeks ago, a lobbyist friend told me I’d ruined his day). Sorry, and Happy New Year!

The Legislature will convene for the 87th time on January 12, 2021. Between now and then, the Senate and the House will get to work on their homework assignments from the Lieutenant Governor and Speaker, respectively. In fact, several committees have already scheduled interim hearings in January and February.

Casting long shadows over all of this are the 2020 election, with the Presidency, several Texas Senate seats, and every Texas House seat at stake; the 2020 census; a concerted effort by Democrats to gain a majority in the Texas House, and an equally robust effort by Republicans to prevent that from happening; and a Speaker’s race. All these things combined could make for a fraught interim.

Meanwhile, the Texas Commission on Environmental Quality (TCEQ) and the other natural resource agencies are diligently implementing legislation from last session while dealing with their full plates of day-to-day responsibilities. The ship of state, after all, must sail on.

The turn of the calendar and the long ramp-up to next session are good reasons to assess where we are on environmental issues, and where we could be going. Let’s dive in, shall we?

Interim Studies. First, the homework.

Because the budget is policy, I always start there. On the Senate side, Governor Patrick has directed Senate Finance to examine further constitutional restrictions on expenditures. The Legislature was accused by some last session of being a bit freewheeling, so for greater situational awareness, this bears watching. Finance will also be studying disaster spending, which is wholly appropriate. TCEQ and the other agencies are among the key responders in times of need, so this discussion will be very important in setting priorities for those agencies.

In the House, Appropriations will be monitoring the implementation of one of my favorite bills from last session, Senate Bill 68 (Nelson/Schaefer). If you read my session recap, you’ll recall this bill should mean that state agencies really assess what they’re spending money on. Let’s hope this attention and the Legislative Budget Board’s implementation make the agencies’ reviews more than perfunctory. The committee will also be looking at the creation of accounts outside of the Treasury, which could have bearing on whether the Texas Emissions Reduction Plan (TERP) account really is set-up as a non-Treasury account for the next biennium.

Senate Business and Commerce will be examining a range of electricity issues. Specifically, they’ll be looking at market barriers, which could affect municipal utilities. House State Affairs has a substantially similar charge. Electricity and environment are inevitably linked, so these committees should be watched.

On the natural resources front, Governor Patrick gave substantial assignments. Eminent domain, water supply, groundwater, and river authority infrastructure are all on the docket. The assignments themselves seem broad enough to give the Senate Natural Resources and Economic Development and Water and Rural Affairs Committees wide latitude to navigate these thorny issues.

On the House side, Land and Resource Management will also take up eminent domain. The parties interested in this issue will have their work cut out for them during the interim.

The House environmental assignments are equally significant and substantive. The new TERP account (see above) will be evaluated, along with the concept of consolidating oil and gas wastewater regulation at TCEQ. House Environmental Regulation (HER) will also be looking at the regulation of above-ground storage tanks, which gets to concerns surrounding industrial accidents along the ship channel. If you read my session wrap-up, you might recall that the Legislature was telegraphing its interest in this issue even before the last session ended. I expect more discussion that enforcement is weak, and penalties are not punitive enough. In the wake of the ITC and TPC accidents, I would look for a great deal of discussion on whether to give TCEQ greater authority over these sites, including increased inspection frequency and maybe even a greater role in regulating safety.

On the solid waste management front, HER will be looking at local regulatory issues. Last session’s relative quiet on this issue, surprising considering the pre-session controversies surrounding landfill issues, may be replaced with some sound and fury this interim.

House Natural Resources will be monitoring the implementation of the various flood-control bills passed last session. The committee will also remain laser-focused on future water supplies.

Finally, Speaker Bonnen also appointed a special committee to study Aggregate Production Operations (APOs). Last session, more than 40 bills were filed to restrict the siting and operations of these sites around the state (disclosure: I worked for aggregate interests during session but won’t opine further on prior legislation). The committee is charged with examining, among other things, reclamation, blasting, and air quality. This committee’s work, coupled with the Austin American-Statesman’s bid for a Pulitzer for its series on APOs, will ensure this issue remains in the forefront.

Interim assignments aside, other environmental issues are emerging that will take up time and oxygen next session. Let’s dust off the crystal ball and shamelessly speculate on what to expect in the realm of other environmental issues.

First off, emissions events. The Legislature last passed significant changes to the regulation of emissions events (formerly known, oddly, as “upsets”) in 2001. Those changes included a new concept of “excessive” emissions events that would be subject to even more scrutiny and action on the part of the regulated community. The also included the creation of an “affirmative defense” to help demonstrate an event was beyond control of the regulated entity. Nineteen years later, industrial accidents along the Gulf Coast, and the huge expansion of oil and gas in the Permian Basin and elsewhere, have focused new attention on the issue. The narrative spinning out of the NGO community is that emissions events are virtually unregulated by state law, which isn’t correct, but it sounds good. In the context of the interim committee (see above) and through “studies” performed by the NGOs, I expect calls to raise the bar for an “affirmative defense” and increase penalties for excessive emissions events—at the very least.

Finally, the 87th Session will see a lot of issues teed up that will serve as a preview of TCEQ’s Sunset review that will occur during 2021/2022 interim. The contested case hearing process (both sides of that coin, i.e. it’s too stringent/not stringent enough), the setting and enforcement of toxicological effects screening levels, penalties as a deterrent to noncompliance, and the expansion of expedited permitting are among the items that could come up. Advocates will want positions entered into the official record that can then be used for fundraising, the next election cycle, and strategy development.

In closing, I want to circle back to who controls of the Texas House of Representatives in January 2021. The traction any of these issues gain (or don’t) during the 87th Session and its interim depends largely on the outcome of the 2020 elections. The House and Senate have long been aligned on a “macro” basis (disagreements have always centered on details and a handful of social issues, really), but that decades-long status quo may be upended. If that happens, through Democratic control of the House, the choices the Legislature faces are stark. If the House flips, will the Legislative Branch devolve into gridlock, walk-outs, and nerve- and relationship-fraying special sessions? Or will they remain pragmatically focused on a handful of “big” issues (e.g. redistricting) and compromise to demonstrate the Texas system works and avoid being compared to D.C.?

Honestly, environmental issues will remain local and marginal to the big stuff. That could mean, however, one of two things: that those issues never attract enough interest to go anywhere, or they stay below the radar enough to keep moving and slip through. Whatever the outcome, it bears vigilant watchfulness.