April 17th, 2015
Contested Case Hearing Reform Is a Solution in Search of a Problem
By Rita Beving, Alliance for a Clean Texas
Texans use an important process called “Contested Case Hearings” to protect private property interests, community and neighborhood health, and the environment. Unfortunately, the contested case hearing process is under attack by big special interests who are trying to gut the process and erect barriers to meaningful citizen participation through the passage of Senate Bill 709 and House Bill 1865.
When a company wants to develop a big project that will impact private property and community health, such as a new landfill, power plant, refinery, cement plant, or wastewater treatment plant, they have to get a permit for these projects from the Texas Commission on Environmental Quality (TCEQ). Citizens who live close to these proposed facilities have an opportunity to request a contested case hearing on the permit at the State Office of Administrative Hearings (SOAH).
A contested case hearing at SOAH is a way for Texas citizens to have an independent and fair hearing on the merits of the proposed environmental permit. Often in contested case hearings, issues are raised about the impact of a proposed project on a community or the environment which were missing from the draft permit. One case from the Dallas area highlighted how a draft permit would allow a proposed landfill to leach harmful chemicals into a river and aquifer used for drinking water. That project was later scrapped.
Gutting the contested case hearing process is a solution in search of a problem.
Despite arguments from business interests, contested case hearings are extremely rare. In the last five years, of the thousands of permit applications received by TCEQ, about 1% ended up going to a contested case hearing. Business interests also argue that TCEQ does not issue permits expediently compared to other states. This is simply not true. For example, research by Public Citizen shows that compared to many other states Texas issues air permits relatively quickly.
One of the biggest problems with the bills big business interests are pushing is that they switch the “burden of proof” from deep-pocketed applicants to Texas citizens. This means that citizens would be responsible for proving at SOAH there is a problem with the draft permit.
This is profoundly unfair in two ways. First, it is not the citizens who are asking the state for permission to potentially pollute the environment and impact a community — the applicant should have to prove its case. Second, applicants often have a bevy of high-priced attorneys working in their corner — shifting the financial burden in administrative hearings to Texas citizens, generally with less resources, stacks the deck deeply in favor of industry.
The bills also erect other barriers to citizen participation in contested case hearings, and set unrealistic time frames on how long cases at SOAH may last.
SB 709 and HB 1865 are unneeded bills that mess with Texans, and mess with Texas. If Texas legislators care about the health and welfare of their constituents, private property rights and a clean environment, they should reject this misguided legislation.
Rita Beving is coordinator of the Alliance for a Clean Texas (ACT). ACT is an alliance of environmental, public interest, consumer rights and religious organizations dedicated to improving public health, quality of life and the environment in Texas by working for change through public education and at the regulatory and legislative levels. Online at www.acttexas.org