City of Hous. v. BCCA Appeal Grp., Inc.
| Decision Date | 29 August 2013 |
| Docket Number | No. 01–11–00332–CV.,01–11–00332–CV. |
| Citation | 485 S.W.3d 444 |
| Parties | CITY OF HOUSTON, Appellant v. BCCA APPEAL GROUP, INC., Appellee. |
| Court | Texas Court of Appeals |
Judith L. Ramsey, for City of Houston.
Cristina Espinosa Rodriguez and Evan A. Young, for BCCA Appeal Group, Inc.
Panel consists of Justices JENNINGS, HIGLEY, and SHARP.
The present dispute requires us to determine the constitutionality of a home-rule city's ordinance which purports to regulate air pollution within that city's borders. The BCCA1 Appeal Group, Inc. (the Group), a non-profit organization whose members own and operate industrial facilities in the Houston area, brought suit to enjoin enforcement of two air pollution control ordinances enacted by the City of Houston (the City)—City of Houston Ordinance Nos. 2007–208 and 2008–414 (collectively, the Ordinance). The Group asserts that the Ordinance is preempted by state law. The parties filed cross-motions for summary judgment; the trial court denied the City's motion and granted the Group's motion. We reverse the trial court's judgment and render judgment in favor of the City.
The Group asserts that the Ordinance is preempted because it claims for the City several powers the Legislature granted exclusively to the Texas Commission on Environmental Quality (TCEQ) in the Texas Clean Air Act (TCAA) and the provisions of the Texas Water Code (TWC) that govern enforcement of the TCAA. According to the Group, the Ordinance conflicts with the TCAA, TWC, and Article XI, Section 5 of the Texas Constitution which bars home-rule cities from enacting any ordinance that is "inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State." TEX. CONST. art. XI, § 5 (a). With that in mind, we will begin by discussing the relevant portions of the Ordinance, TCAA, and TWC.
In 1967, the Texas Legislature enacted the TCAA which was intended to safeguard the state's air resources without compromising the economic development of the state. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). The TCAA also created an administrative agency which is now known as the TCEQ and granted the agency the authority to promulgate regulations to accomplish the TCAA's goals, namely "to safeguard the state's air resources from pollution by controlling or abating air pollution and emissions of air contaminants, consistent with the protection of public health, general welfare, and physical property, including the esthetic enjoyment of air resources by the public and the maintenance of adequate visibility."2 TEX. HEALTH & SAFETY CODE ANN. § 382.002(a) (West 2010); see also Tex. Ass'n of Bus., 852 S.W.2d at 443. TCEQ's rules are codified in title 30 of the Administrative Code. Specifically, the TCAA states that TCEQ shall administer the TCAA and accomplish the TCAA's purpose "through the control of air contaminants by all practical and economically feasible methods." See TEX. HEALTH & SAFETY CODE ANN. § 382.011(b) (West 2010).
The TCAA authorizes TCEQ to issue orders and make determinations as necessary to carry out the TCAA's purposes. TEX. HEALTH & SAFETY CODE ANN. § 382.023(a) (West 2010). If it appears that the TCAA or a TCEQ rule, order, or determination is being violated, TCEQ may, inter alia, "take any other action authorized by [the TCAA] as the facts may warrant." Id. § 382.023(b) (West 2010); see also 30 TEX. ADMIN. CODE § 70.5 ().
Under the TCAA, TCEQ has the sole authority to authorize air emissions, which includes the authority to issue and enforce permits for sources of air contaminants. See TEX. HEALTH & SAFETY CODE ANN. § 382.051 (West 2010) (); see also State v. Associated Metals & Minerals Corp., 635 S.W.2d 407, 410 (Tex.1982) (). The TCAA also requires TCEQ to adopt, charge, and collect certain fees associated with its regulatory program. See, e.g., TEX. HEALTH & SAFETY CODE ANN. § 382.062(a) (West 2010) (); id. at § 382.0621(a) (West 2010) ().
Although TCEQ has primary responsibility for enforcing the state's environmental laws, see TEX. WATER CODE ANN. § 5.012 (West 2008), the TCAA also acknowledges that home-rule cities have an important role to play with respect to air quality regulation in the State. See TEX. HEALTH & SAFETY CODE ANN. § 382.113 (West 2010). Subchapter E of the TCAA expressly recognizes that "a municipality has the powers and rights as are otherwise vested by law in the municipality to ... abate a nuisance; and ... enact and enforce an ordinance for the control and abatement of air pollution." Id. at § 382.113(a). Such ordinances, however, must be "consistent with [the TCAA] and [TCEQ's] rules and orders" and cannot "make unlawful a condition or act approved or authorized under [the TCAA] or [TCEQ's] rules or orders." Id. at § 382.113(b).
In addition to the right to enact and enforce its own air-pollution abatement programs, home-rule cities, as well as other local governments, have the right to enforce state-level air-quality rules and regulations. Specifically, the TCAA provides that local governments may enter and inspect property to determine compliance with the TCAA or a TCEQ rule, variance or order, and requires them to share the results of their inspections with TCEQ when requested. See TEX. HEALTH & SAFETY CODE ANN. § 382.111 (West 2010). Local governments may also contract with the TCEQ or with one another to accomplish air quality management, inspection, and enforcement functions and local governments may receive a share of the fees that TCEQ collects to fund their local air-quality inspection programs. See id. at §§ 382.0622(d), .115(1) (West 2010). Local governments may also make recommendations to the TCEQ and petition the agency for a rulemaking. Id. at § 382.112 (West 2010).
Local governments also have the right to sue in civil district court for civil penalties or injunctive relief for violations of the TCAA. TEX. WATER CODE ANN. § 7.351 (West 2008). Any civil suits initiated by a local government under this subchapter of the TWC, however, must be authorized by the local government's governing body and TCEQ must be joined as a party. Id. at §§ 7.352, .353 (West 2008). Any civil penalties recovered by the municipality must be shared equally with the state. Id. at § 7.107 (West 2008).
In addition to the provision in the TWC authorizing local governments and other parties to enforce the TCAA by civil suits, chapter 7 sets forth additional provisions governing enforcement of the TCAA. See id. at §§ 7.001, .0025–005, .031–.051, .0525–.066, .068–.183, .184–.186, .188–.255, .301, .303–.358 (West 2008), §§ .002, .006, .052, .067, .1831, .187, .256, .320 (West Supp. 2012). Specifically, the TWC states that the TCEQ may enforce the TCAA through a number of methods including, inter alia, assessing administrative penalties, directing corrective action, revoking permits, and requesting the Attorney General's Office to file a civil suit seeking injunctive relief and/or civil penalties. See id. at §§ 7.032 (), 7.051 (authorizing assessment of administrative penalties by TCEQ), 7.073 (authorizing assessment of administrative penalties and order of corrective action), 7.105 (authorizing attorney general to file civil suits seeking civil penalties and/or injunctive relief), & 7.302(a)(4), (b) (authorizing revocation or suspension of permits issued pursuant to TCAA).
The City enacted an air-quality ordinance in 1992 which, until 2007, only regulated air pollution from facilities that were not already regulated by the State, i.e., sources of emissions not subject to regulation and licensure by the TCEQ. See generally HOUS., TEX., CODE OF ORDINANCES, ch. 21, art. VI (2013). Prior to 2007, the City contracted with TCEQ and cooperated with the agency to ensure that sources of emissions located within the City's borders were in compliance with state law by inspecting and referring cases for enforcement action to the TCEQ. See TEX. HEALTH & SAFETY CODE ANN. § 382.115(1) (). After fiscal year 2005, however, the City chose not to renew its contractual relationship with the agency.
Instead, in 2007, the City amended the Ordinance and established its own air quality regulatory compliance program, along with a new fee schedule to fund the program. HOUS., TEX., ORDINANCE 2007–208 (Feb. 14, 2007) ( Chapter 21 of Code of Ordinances). The 2007 amendment expanded the Ordinance's scope to include the regulation of facilities and sources subject to regulation by TCEQ. The Ordinance, as amended in 2007, also made it "unlawful for any person to operate or cause to be operated any facility" inside the...
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