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Texas relaxed environmental enforcement during the pandemic, state data show

The Texas Commission on Environmental Quality (TCEQ) is one of the largest and most influential environmental protection agencies in the country. With an annual budget of $400 million, it polices about 400,000 polluting businesses and conducts more than 100,000 inspections in a normal year. The agency inspects not only the state’s many large refineries and chemical plants, but also its neighborhood gas stations, dry cleaners, and public water systems.

Many of the state’s 29 million residents live in the shadow of heavy industry and in cities with smog levels that rank among the worst in the country. In short, a slowdown in TCEQ’s enforcement efforts could be deadly. So when the COVID-19 pandemic brought the country to a halt earlier this year, TCEQ’s chairman penned an open letter reassuring environmental advocates that, even though employees were going to work from home, the agency would continue to be “fully engaged in its mission to protect public health and the environment.”

But a Grist analysis of the agency’s internal data has found that, in the six weeks after the agency asked employees to work from home in response to the pandemic, TCEQ pursued 20 percent fewer violations of environmental laws than it did during the same period in 2019. The agency also initiated 40 percent fewer formal enforcement actions resulting in fines for polluters. Finally, in a move that appears in line with the Environmental Protection Agency’s controversial discretionary enforcement policy, TCEQ issued about 40 percent fewer violations to companies for failing to monitor and report pollutants emitted into the air and water.

Even as the agency reduced enforcement, it continued processing permits that allow construction companies, industrial facilities, and other businesses to pollute up to certain limits at about the same rate that it did last year.

Adrian Shelley, director of the consumer advocacy group Public Citizen’s Texas office, called TCEQ’s enforcement slowdown “disappointing” and said that Grist’s investigation shows that the agency prioritizes permitting over compliance.

“There’s been a large period of very little regulatory oversight,” he said. “The implications for community health and for the workers at the facilities really concern us.”

In a 7-page response to Grist’s findings, TCEQ spokesperson Brian McGovern denied that the agency had scaled back its oversight of polluting businesses during the pandemic, listing various shortcomings of the data his own agency provided. He said that TCEQ conducted a separate analysis of its enforcement work and found that inspections had decreased by just 10 percent.

“While there have been some decreases in these [enforcement] activities as staff transitioned to working remotely and the economy has slowed suddenly and dramatically, these decreases are far more modest than you have concluded,” McGovern said.

The agency has long been criticized for lax enforcement. Analyses of TCEQ’s enforcement work by environmental advocates and journalists have consistently found that the agency rarely penalizes polluters while disproportionately issuing fines against small business owners. A 2017 Texas Tribune investigation found that the agency levied fines in fewer than 1 percent of the cases in which polluters exceeded air emission limits.

“Any further relaxation of environmental protections will keep endangering Texans who are facing this triple threat of air pollution, chemical disasters, and now COVID-19,” said Catherine Fraser, an associate working on air quality issues at the nonprofit Environment Texas.

Shifting priorities

TCEQ inspectors — both full-time employees and contractors — perform more than 100,000 inspections a year. Just 5,000 of them are in response to complaints; many of the rest are routine and dictated by federal laws. (For instance, every gas station in the state is inspected once every three years due to a mandate in the 2005 Energy Policy Act.) About two-thirds of the inspections are conducted on-site while the remainder are performed remotely by reviewing self-reported data from businesses.

Once an inspection is complete, inspectors write up any violations of environmental rules they may have witnessed. These citations range from relatively minor paperwork violations to more serious infractions, like those that cause degraded air and water quality. If a polluter does not correct the issue that led to a notice of violation — or if the agency decides the violations are exceedingly serious — then TCEQ purses formal enforcement action, which is typically accompanied by fines and an order to remediate the issue.

In order to assess TCEQ’s decision-making during the pandemic, Grist requested data about the complaints the agency received, the inspections it conducted, and violations and enforcement action it pursued from the beginning of 2019 through the end of May. Due to lag times in updates to the agency’s internal database, we limited our analysis to the six-week period starting March 16, when TCEQ employees began working from home.

We found that, across the board, the agency’s enforcement work shifted after Governor Greg Abbott directed state agencies to provide remote work options to employees in March. For one, the agency conducted far fewer inspections that led to violations. Last year, the agency conducted about 2,120 such inspections every six weeks, on average. But between March 16 and the end of April this year, that number dropped to about 722 — a nearly 70 percent decrease.

Clayton Aldern / Grist

TCEQ also issued 20 percent fewer violations in March and April, compared to the same six-week period last year, and likewise found fewer more serious violations of environmental laws. Agency staff categorize violations as “major,” “moderate,” and “minor” when calculating penalties depending on the amount of pollution, the threat to public health and the environment, and the compliance history of the business in question. Major violations are the most severe and trigger mandatory enforcement action resulting in fines, while minor violations are often over paperwork. While the types of violations fluctuate dramatically over the course of a given year, Grist’s analysis found a marked decrease in “major” and “moderate” violations after the shutdown compared to last year. From mid-March through the end of April last year, the agency issued citations for 17 “major” violations, but during the same time period this year, the agency found just three. “Moderate” violations were also down by about 20 percent.

“That’s a large shift,” said Tim Doty, a former TCEQ employee who worked in the agency’s enforcement division before retiring in 2018. “Is it because companies are coming up with excuses or a natural explanation? Maybe [inspectors] can’t get an in-person look and they’re not inclined to assign [the violation] a ‘major’.”

The agency also appears to have changed how it handles violations of routine monitoring and record-keeping requests. In March, it announced that businesses that are unable to comply with environmental rules due to the pandemic may request enforcement discretion from the agency. According to a spreadsheet that the agency has been updating on its website, it has received about 150 requests for enforcement discretion and granted about 80 percent of them. The vast majority of these requests are for extensions to reporting and monitoring deadlines.

The agency’s decision to overlook these monitoring and reporting violations may partially explain the overall decrease in violations. In March and April of 2019, the agency issued about 240 record-keeping and routine monitoring violations. This year it issued about 142 of those violations — a 40 percent decrease. Similarly, notices of enforcement — formal notification to businesses that the agency intends to seek penalties for violations — were also down 40 percent.

The decrease in enforcement activity is likely not due to businesses closing down to comply with stay-at-home orders. The vast majority of facilities that TCEQ oversees — gas stations, public water systems, and oil and gas infrastructure — were considered essential and exempted from shutdown orders.

Clayton Aldern / Grist

“This is really very bad in my view, because the plants are getting away with breaking the law now,” said Neil Carman, a former TCEQ air inspector who now works for the Sierra Club in Austin. “They’re probably less worried because they don’t think anybody’s going to come out there and call them about their violations.”

McGovern, the TCEQ spokesperson, said that the “conclusion that TCEQ is choosing to pursue less severe violations is incorrect” and that the agency “does not choose which violations it finds or pursues based on severity.” He said that TCEQ does not have a policy to not pursue violations of monitoring and reporting requirements during the pandemic and that the number and severity of violations can vary from year to year for other reasons — “sometimes dramatically” and “without our knowing or ascribing a reason.”

McGovern’s main criticism of Grist’s analysis pointed to several flaws in the data that the agency itself provided, which he said did not lend itself to an “apples-to-apples comparison between 2019 and 2020.” For one, the agency provided Grist with data on investigations that led to violations — not the entire universe of investigations. (While this might impact the accuracy of the raw numbers Grist analyzed, it would not impact the accuracy of the year-to-year changes.) McGovern also said that lag times for database updates could cause an undercount of inspections for 2020.

TCEQ publishes monthly enforcement reports outlining the number of inspections conducted and enforcement actions pursued. In response to Grist’s findings, TCEQ conducted its own analysis and found that it was conducting just 10 percent fewer inspections over the ten-week period from mid-March to the end of May, compared to last year. The discrepancy in findings is likely a result of the limitations McGovern listed as well as the agency’s method of counting inspections: According to McGovern, a single investigation report can contain multiple “investigation activities.” A count of these investigation activities is reported publicly and to the state legislature.

But Grist’s findings are also reflected in data that the agency is required to submit to the Environmental Protection Agency (EPA). Under the Clean Air Act, the EPA has delegated much of its permitting and enforcement authority to states. Chemical plants, steel mills, refineries, and other air polluters receive permits from TCEQ so they can emit pollutants. Then, TCEQ reports the number of inspections and fines issued to those facilities. That data show that the agency conducted about 180 inspections each month in 2019. But the inspection numbers plummeted to 88 in March 2020 before climbing back up to 156 in April and 133 in May.

“This is just further evidence that the agency is giving polluters a free pass to pollute during a pandemic, when we should really be doing everything that we can to protect our health and our environment,” said Fraser, the advocate with Environment Texas.

A downward trend

A further look back at TCEQ’s oversight of large polluting facilities also shows a downward trend in inspections over the past 10 years. At the beginning of the decade, the agency was conducting more than 7,500 inspections per year of federally-permitted facilities with limits on air emissions. Those figures have now dwindled to a little over 2,000 — despite the number of facilities the agency is overseeing remaining steady. Similarly, penalties, violations cited, and formal enforcement actions taken against these facilities have also declined significantly.

After the EPA announced its temporary relaxation of monitoring and reporting rules for polluters in March, many states and environmental groups sued. In a recent filing, they argued that the agency did not consider the effects of the policy on public health and safety — particularly on low-income communities of color that disproportionately live close to polluting facilities.

“In addition to this existing backdrop of public health concerns, mounting evidence regarding the incidence of COVID-19 in low-income and minority communities amplifies the importance of considering the Policy’s impact on public health,” the attorneys representing nine states wrote.

In Texas, too, the effects of scaling back enforcement are likely to be felt disproportionately by communities of color. An analysis by the University of Texas Health Center found that neighborhoods close to industrial facilities in Harris County — where Houston is located — are at higher risk for hospitalization and intensive care needs due to COVID-19. These neighborhoods are also already at higher risk for cancer and a slate of respiratory illnesses.

Environmental and public health advocates say that lax enforcement and poor regulatory oversight are to blame for the distressingly frequent industrial fires and explosions in the Houston area. Last year alone, two major fires at petrochemical sites near the Houston Ship Channel burned for days and blanketed the city in a plume of thick smoke. A 2016 Houston Chronicle investigation found that major chemical accidents occur in the Houston area every six weeks — and that industry being allowed to self-regulate is one major reason for the frequency of unsafe incidents.

“The lack of enforcement action taken by TCEQ is creating this culture where safety and health laws aren’t prioritized,” Fraser said. “There’s often little incentive to comply with the law.”

Clayton Aldern contributed data reporting to this story.

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Texas relaxed environmental enforcement during the pandemic, state data show

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The EU is doing what the US won’t: kicking coal to the curb

The European Union has undergone a pretty dramatic transformation as of late — and we’re not talking about Brexit. The group of member states, which pledged as a collective to become carbon neutral by 2050 as part of Europe’s Green Deal, cut carbon emissions from electricity by a whopping 12 percent in 2019, according to a report compiled by the European thinktanks Agora EnergieWende and Sandbag. Coal use, in particular, plummeted by about 25 percent.

“What surprised us most was the magnitude of the collapse of coal and the accompanying decrease in CO2 emissions,” said report coauthor Fabian Hein. “The speed of it was impressive.”

Clayton Aldern / Grist

The dramatic drop in CO2 — the equivalent of cutting the U.S. state of Georgia’s annual carbon emissions — can be linked to both the E.U.’s commitment to making Europe “the first carbon-neutral continent” and a steep increase in the market price of carbon, which drove the cost of polluting to its highest level since 2008. Aggressive onboarding of wind and solar also helped renewables overtake coal for the first time as the largest contributor to the electricity sector.

While that’s good news for the planet, the numbers don’t guarantee Europe will continue to make steady progress toward its goal of a carbon-neutral economy by 2050. A milder-than-usual winter last year helped lower the demand for electricity slightly across every country included in the 2019 report. And a closer look at the data shows that while coal power is falling fast, natural gas use has actually crept back up since hitting a low point in 2014. Not all E.U. nations are making the same progress in renewable development. Many Eastern European countries continue to fall far behind their wealthier neighbors, like Germany, the U.K, or the Netherlands.

The E.U. still has a lot of work to do to hit its 2030 benchmarks, including rapid improvements in energy efficiency and transportation. But in a speech about the challenges Europe still faces in its energy transition, Frans Timmermans, executive vice president of the European Commission and the head of the European Green Deal, singled out power generation as a reason to believe the E.U.’s can achieve its larger climate goals.”

That is one area at least in which progress is “go[ing] much faster than anybody had anticipated,” Timmermans said.

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The EU is doing what the US won’t: kicking coal to the curb

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Despite everything, U.S. emissions dipped in 2019

Just a week into the new year, and the first estimate of how much planet-cooking pollution the United States belched into the atmosphere last year is already in. It’s not the kind of report card you’d be proud to show your parents, but at least it won’t leave you in tears.

Perhaps surprisingly, total emissions fell 2 percent compared with the year before, according to the Rhodium Group, a research firm that frequently crunches climate numbers. The reason for that decline? The U.S. is burning less coal. That’s been driving down emissions from electricity generation. But the way we get around, heat our homes, and manufacture our stuff, hasn’t had much of an effect.

“It’s a good-news bad-news story,” said Trevor Houser, a partner at Rhodium and author of the report. “In the electricity sector we had a banner year — we had the largest decline in coal generation in recorded history. But in the other 75 percent of the economy, emissions remain stubbornly flat.”

Coal has been in a slow-motion death spiral over the past ten years. The country now generates half as much coal-fired electricity as it did in 2009. And that trend continued through last year, as coal generation slid 18 percent.

Clayton Aldern / Grist

Surging natural gas was the biggest reason for coal’s demise. Gas comes with its own problems for the climate– burning it releases carbon, and leaks release methane — but replacing coal with gas led to a decline in globe-warming gases, Houser said. Renewable energy from hydroelectricity, solar power, and wind turbines, increased 6 percent in 2019. So despite President Donald Trump’s vows to resurrect coal, it’s still sliding into history.

The same can’t be said of gas-powered cars and gas-fired furnaces — for the moment, those look locked in.

Clayton Aldern / Grist

Cleaning up the electrical grid is a great first step to cleaning up other sectors. With enough low-carbon electricity, more people could drive electric cars and ride electric trains. Builders could start installing electric heat pumps rather than gas furnaces in houses. “But that’s not going to happen on its own,” Hauser said.

Nudging people toward clean electricity requires policy: Efficiency standards, building codes, incentives, and taxes. Some state and local governments are making these changes, but at the federal level, the Trump administration is doing its best to stop them. As a result, the country’s energy use seems to have its own laws of motion. It takes a lot of work to change direction, but it’s relatively easy to let things keep running as normal. You can see that in coal’s continued slide, as well as in the status quo in emissions from factories, cars, and buildings.

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Despite everything, U.S. emissions dipped in 2019

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Should kids be able to sue for a safe climate? This federal court is about to decide

No Kidding

Should kids be able to sue for a safe climate? This federal court is about to decide

By on 10 Mar 2016commentsShare

This post was co-published with Moyers & Company.

EUGENE, Ore. — Courtrooms usually aren’t jovial places, but with 21 youth plaintiffs and two busloads of supporting junior high-school students in tow, the air in the U.S. District Courthouse here on Wednesday felt more field trip than federal court.

The occasion for the youthful energy was a hearing on a complaint filed on behalf of the plaintiffs, aged 8–19, by Oregon nonprofit Our Children’s Trust. The kids’ lawyers assert that their clients, and the younger generation as a whole, have been deprived of key rights by their own government. By failing to act on climate change, they argue, the United States government — including President Obama and a baker’s dozen federal agencies — has valued its own generation more than future generations, which will bear a greater burden with respect to the climate crisis.

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The Justice Department filed a motion to dismiss the complaint, and Wednesday’s hearing had a federal judge considering that motion. The youth plaintiffs’ counsel sparred with government lawyers as well as attorneys representing fossil fuel interests. This kind of case might sound, well, juvenile, but trade groups with ties to the oil and gas lobby — the American Petroleum Institute, the American Fuel and Petrochemical Manufacturers, and the National Association of Manufacturers — were concerned enough about it that they joined as co-defendants in November of last year. Now, the Oregon U.S. District Court will decide whether or not the complaint will proceed to trial.

Xiuhtezcatl Tonatiuh Martinez, a 15-year-old indigenous activist and a plaintiff on the case, summed up the kids’ perspective at a press conference after the hearing. “We are valuing our futures over profits,” he said. “We are valuing this planet over corporate greed.”

Xiuhtezcatl Tonatiuh Martinez (15) stands in front of his fellow plaintiffs and addresses the press.

Clayton Aldern

This isn’t the first time Our Children’s Trust has brought forth a youth climate lawsuit. Indeed, the group has at one time or another filed suit in all 50 states and currently has cases pending in five states. Back in November, in a case brought by a coalition of Seattle teenagers, a Washington judge ruled that the state was constitutionally obligated to protect its natural resources “for the common benefit of the people of the State” — a notable win for the young plaintiffs — but she did not go so far as to rule that the state’s carbon emissions-limiting standards in question needed to adhere to the “best available science.” A 2011 suit, which the youth plaintiffs ended up losing, also targeted the federal government for failing to keep the atmosphere safe for future generations. It perhaps goes without saying that these types of complaints are incredible long shots.

Julia Olson, a lawyer with Wild Earth Advocates and Our Children’s Trust who argued the plaintiffs’ case on Wednesday, is optimistic about the outcome of this complaint, though. “I believe in our Constitution, and I think it can work to address even the most systemic, intractable problem of our generation,” she told me.

The complaint alleges violation of the kids’ Fifth Amendment rights to due process and equal protection. By failing to act on climate change, it argues, the government discriminates against youth as a class. Without access to a healthy climate, they’re deprived of their fundamental rights to life, liberty, and property.

The complaint is also built on the public trust doctrine, a carryover from English common law that says a government has the duty to protect certain natural resources and systems on behalf of current and future generations. “It originated with Emperor Justinian in Rome,” Alex Loznak, a 19-year-old plaintiff, explained to the press. “It’s reflected in the Magna Carta, the writings of Thomas Jefferson, and cited in U.S. court decisions dating back to the 1800s.”

An important question at hand on Wednesday was whether the public trust doctrine applies to the federal government. The U.S. government and its fossil-fuel industry co-defendants argued that legal precedent only considers it to apply to states. That’s a crucial distinction, because it will help determine whether or not the plaintiffs even have standing in the federal court system.

Youth plaintiff Isaac Vergun (13) poses outside the U.S. District Courthouse in Eugene, Ore.

Clayton Aldern

The defendants also contend that if the federal court took on the case, it would amount to an egregious overstep of authority by the judiciary. “This is the type of problem that is designed to be solved by the political branches,” argued U.S. counsel Sean C. Duffy at the hearing. He said that denying the U.S. government’s motion for dismissal would effectively turn the judicial branch into a “de facto super-agency.”

Another core argument of the defense is that all cases addressing constitutional rights must demonstrate that the government, through its actions, has infringed upon these rights or exceeded its authority. Instead, the defense argued, the kids’ case alleges a failure to act, and you can’t require the government to simply “do more.” “Our Constitution is one that limits the power of government,” argued intervenor counsel Quin Sorenson, who represented industry interests at the hearing.

That’s not how Olson sees it, though. “What we have today is not just a failure to act,” she told the press after the hearing. “The government is not just sitting by and doing nothing. They are doing everything to cause this problem.” Indeed, the complaint calls out the government for its continued actions to “permit, authorize, and subsidize fossil fuel extraction, development, consumption and exportation.”

It’s also not unprecedented for a court to demand that the government meet a specific standard to ensure its citizens’ safety, she said. In Brown v. Plata, for example, a 2010 Supreme Court case concerning prison reform, the court required a mandatory limit on prison populations for the sake of health and safety. Summarizing the decision, she said that while the Supreme Court had no scientific standards to apply at the time, it ruled that it could rely on expert evidence. “The Court selected the number — it set the standard — to keep those prisoners safe.” And when it comes to determining the safe level of climate pollution in the atmosphere, “we have scientific standards,” she said.

Supporters of the youth plaintiffs assemble on the steps of the U.S. District Courthouse in Eugene, Ore., after the hearing. The banner reads, “Our future is a constitutional right.”

Clayton Aldern

“The way I hope it will go is that the judicial branch will say, ‘You’ve got to do something,’” said James Hansen, adjunct professor at Columbia University and former director of NASA Goddard Institute for Space Studies. Hansen’s granddaughter is a plaintiff in the case, and he’s formally listed in the complaint as the legal guardian of “Future Generations.” He continued, “Hopefully the court will ask for a plan: How are you going to ensure the rights of young people?”

In a time of gridlock and sorely needed climate action, the case couldn’t come soon enough, Hansen said. “It gets harder and harder to stabilize the climate if you go longer and longer without turning the curve.”

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Addressing climate change is perhaps the greatest challenge of our time, and it necessarily causes us to ask some big questions. Is there a constitutional right to be free from climate change? Is there a constitutional right to a safe climate? Is youth a class, or simply a mutable trait? If the federal government takes actions that worsen the climate crisis, does that amount to an abuse of its power?

Said Olson: “We are not just in a climate crisis. We will have a significant constitutional crisis and a crisis in our democracy if this doesn’t work.”


The 21 youth plaintiffs, along with climatologist James Hansen (top, third from left) pose with Our Children’s Trust attorneys Phil Gregory (top left) and Julia Olson (bottom left).

Clayton Aldern

Watch Bill Moyers’ 2014 interview with youth plaintiff Kelsey Juliana:

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Should kids be able to sue for a safe climate? This federal court is about to decide

Posted in alo, Anchor, Casio, Citizen, FF, GE, LAI, ONA, Radius, Uncategorized | Tagged , , , , , , , , , , | Comments Off on Should kids be able to sue for a safe climate? This federal court is about to decide