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Air Advocates vs. TNRCC:
Attorney General’s Office, Acting on Behalf of Industry Interests, Presents
Bogus Argument that Lacks Legal Merit
In a lengthy battle between
environmental groups, their litigants and industry the Texas Supreme Court
finds on behalf of the public interest. The decision, hailed as a
small triumph, is another move toward ending the largest permit to pollute
in North Texas.
On
Thursday, February 21 in a decision delivered by Justice Hankinson
(Read the Supreme Court Decision), the
Texas Supreme Court returned a verdict in favor of air advocates. The
decision by the Texas Supreme Court forces an ongoing legal permit battle
back to district court where it will finally be heard on its merits.
The
battle began over six years ago when Texas Industries (TXI) applied for a
permit to expand the burning of hazardous waste in their cement kiln
operation. TXI, a cement plant located in Midlothian, Texas, is the
largest toxic polluter in the nation with a permit to burn more than
549,000,000 pounds of hazardous waste each year.
Downwinders at Risk, the Dallas Sierra Club, and seven citizens participated
in a formal contested case hearing. When the commissioners sided on behalf
of industry, discounting both sound science and compelling evidence, it
proved once again that money can buy access to anything-including an
industry appointment to a presumed “objective” TNRCC Commissioners’ Court.
The decision by the commissioners prompted a formal lawsuit against the
agency.
That
case arrived in a district court, where another Bush appointee, decided
again in favor of industry saying that the case should be thrown out, not on
its merits, but because the state claimed that the attorney acting on behalf
of the air advocates failed to serve its citations correctly. But that
judge was wrong and the Texas Supreme Court concurred last week.
The
Attorney General’s Office, acting on behalf of the TNRCC commissioners and
industry, presented a faulty argument based on a broad and misleading
interpretation of the law. The Texas Supreme Court cited the Attorney
General’s argument as incorrect and ruled in favor of environmental groups.
The
other story is that the Attorney General’s Office wasted taxpayer dollars to
battle on behalf of industry and the decision to appeal the hearing process
was an unabashed attempt to undermine the public’s right to appeal through
the civil court process. The Attorney General, John Cornyn, who hopes to
replace retiring Texas Senator Phil Gramm, filed legal briefs which heavily
favored industry interests in an attempt to limit citizen’s rights to due
process.
“This attempt by the Attorney General would have undermined citizens’ legal
rights with huge implications. If the Supreme Court had sided with Cornyn’s
Office it would have denied citizens the right to disagree with any
state agency, not just the state’s environmental agency, and it would have
stripped citizens of the right to protest bad decisions like this one” said
Rita Beving, Conservation Co-Chair of the Dallas Sierra Club.
Furthermore, the decision would have also impacted the service of papers.
The Attorney General’s argument, if accepted by the Texas Supreme Court,
would have made it very expensive and very cumbersome to file a lawsuit, a
ruling that would again favor industry and would undermine the spirit of
fair play. “Overall, the argument by the Attorney General’s office was a
long shot and was based upon a ridiculous argument that in the end proved
weak -- thank goodness the Texas Supreme Court agreed” said Becky Bornhorst,
Co-Chair of Downwinders at Risk.
So
for now, the battle between air advocates, and TXI ensues. The case will
return to district court where after six years, tons of money, and a strong
commitment from grassroots, air friendly organizations the case will finally
be heard on its merits.
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