Your Tax Dollars at Work: TCEQ Argues Air IS NOT a Natural Resource

by jim on October 11, 2013

smokestack plumes2So this is how ideological things have become at the Texas Commission for Environmental Quality. Even though the agency won a fight in court to keep a group of parents represented by the Texas Environmental Law Center from being able to sue the state for not regulating Greenhouse Gases, TCEQ lawyers are working overtime to make the judge in the case retract this statement:

“The Court will find that the Commission’s conclusion, that the public trust doctrine is exclusively limited to the conservation of water, is legally invalid. The doctrine includes all natural resources of the State."

To the untrained eye, this might seem a pretty innocuous piece of prose. Water, air, land, these are pretty much the very definition of "natural resources." But them are fightin' words to Rick Perry's environmental watchdogs. Concede this point to the hippies, and there's a slippery slope leading all the way down to effective regulation and supervision of airborne threats to the public health. Unacceptable.

You see under state law, only water is legally treated as a natural resource in Texas, subject to what's called the "public trust doctrine," which requires government to protect and maintain certain shared resources fundamental for human existence.

TCEQ lawyers are saying air just isn't so fundamental to humans as the wet stuff, although the last time we checked, most people could only last 2 to 5 minutes without it.

State lawyers late last month argued in front of the Texas Third Court of Appeals that Judge Triana’s comments were beyond the scope of the case and should be vacated.

Terry Clawson, an agency spokesman, said….“The T.C.E.Q. has concerns with how the district court opinion addressed the matter of public trust doctrine,” Mr. Clawson added. “The scope of this doctrine is a very important issue, which deserves to be fully vetted.”

The agency complained to the court that Judge Triana’s statements were seen by the plaintiffs “as a victory,” even noting that environmental groups had called her ruling “a blockbuster” for their cause in news releases.

But David Spence, a professor of business and law at the University of Texas at Austin, said the scope of public trust was more symbolic than practical.

“In a sense it’s a kind of low-stakes argument,” Mr. Spence said. “The public trust doctrine in the U.S. is a fairly weak thing.”

Each state applies the principle differently, and few have used it with much force. The doctrine has generally been successful only at protecting open beaches for public use, Mr. Spence said.

So which is it – practical or symbolic? For both citizens and the TCEQ, the two are one in the same. Rick Perry's appointees cannot afford to let citizens get their foot in the legal door to establish a principle that may result in one day overriding their own authority, however abstract it appears that threat is now.

Likewise, in a state government as hostile to citizen concerns as this one, what do you have to lose in trying to establish a, er, beachhead, in terms of seeing safe and legal air as a finite "natural resource" that should be protected? Indeed, one of TCEQ's predecessor's names was the Texas Natural Resources Conservation Commission. It regulated air pollution in Texas – presumably because it was a Natural Resource. This "Hail Mary!" legal strategy seems at least as effective as going down to Austin every two years expecting things to get better.

The appeals court is expected to rule soon. It could remove the statement entirely from the record the way TCEQ wants, or merely say is a statement and not a legal precedent, which is what even the plaintiff's lawyers expect. Stay tuned.

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