March 16th, 2013
Texas uses an important tool, the Contested Case Hearing process, because Texas respects property rights, is reluctant to grant overarching power to administrative agencies, and has a strong due course of law requirement in the Texas Constitution.
Although relatively few in number, the Texas Commission on Environmental Quality (TCEQ) is able to grant Contested Case Hearings to property owners, local governments, and businesses who can prove they could be adversely affected by a new or expanded facility. These Contested Case Hearings provide parties with the ability to have a discovery process and put their case before a neutral Administrative Law Judge at the State Office of Administrative Hearings (SOAH).
A proposed bill in the Texas State Senate, Senate Bill 957, would cut off access to a Contested Case Hearing for air quality, water quality and waste permits. For example, if a new or expanded power plant, landfill, mine, or wastewater facility were proposed, a property-owner, local government, or business would only be able to file for an administrative review at SOAH after a permit is granted by the TCEQ, and after the permittee can begin construction. SOAH would have complete discretion whether to grant or deny this administrative review. If an administrative review is granted there would be no evidentiary hearing, as with other SOAH hearings. In addition, if a permit is appealed in State Court, the parties protesting a permit would have a different and higher standard of review than a permit applicant pursuing a similar appeal.
This bill represents a massive reworking of the permitting process in Texas, and would stack the deck against property owners, local governments, and businesses.
Senate Bill 957 is set for a hearing in the Senate Natural Resources Committee on Tuesday, March 19th. It is critical that your State Senator hear from their constituents that they should protect Texans’ rights and oppose Senate Bill 957. Please click on the link below to send a message to your State Senator.
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