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BCCA Appeal Group, Inc. v. City of Houston

ELR Citation: 46 ELR 20093
Nos. No. 13-0768, (Tex., 04/29/2016)

The Supreme Court of Texas held that the Texas Clean Air Act and the Act’s enforcement mechanisms in the Texas Water Code preempt a Houston air-quality ordinance. The Houston ordinance’s enforcement provisions are inconsistent with the statutory enforcement requirements. The ordinance allows criminal prosecution of an alleged violation without requiring a written report to the Texas Commission on Environmental Quality (TCEQ), without giving the TCEQ an opportunity to review the report and determine whether a violation in fact exists, and without allowing the TCEQ to exercise its discretion to determine whether administrative or civil remedies are appropriate. The ordinance also requires a facility to register before it can operate lawfully within the city. Because the TCEQ already issues permits to allow a facility to operate lawfully, the ordinance’s registration requirement makes unlawful what the Act approves. The court, therefore, reversed these portions of a lower court decision that upheld the ordinance. However, the court affirmed the lower court's decision that the ordinance’s incorporation of TCEQ rules does not violate the nondelegation doctrine of the Texas Constitution.