Dan Patrick Learns What Many Texans Already Know: TCEQ Permitting Doesn’t Work
Questions and answers about Patrick's request to temporarily stop new cement kilns
By Adrian Shelley
Last week, Texas Lt. Gov. Dan Patrick sent a letter to Texas Commission on Environmental Quality (TCEQ) Chairman Jon Niermann calling for an immediate halt to cement kiln permitting in Texas. This extraordinary request followed a town hall in Sherman, in Grayson County—north of Dallas—hosted by Patrick. At this town hall, Patrick learned what advocates like us–and Texans across the state–have known for many years: TCEQ permitting is broken.
Patrick may be late to the party, but his request has raised many important questions.
What industry is affected?
Since Patrick’s letter, many people have confused cement kilns with other industries, mainly concrete batch plants. Concrete batch plants are in the news all the time–there are hundreds of them across Texas, and it seems like current or future neighbors are always challenging one or two. Concrete batch plants are part of the Aggregate Production Operation or “APO” industry. The industry has four types of facilities: concrete batch plants, hot mix asphalt plants, rock crushers, and rock quarries and mines.
The cement kiln industry converts limestone and other minerals to cement by applying heat. It’s a different industry. According to the most recent information available from the industry trade group Portland Cement Association, there were 11 kilns in the state as of 2016. We don’t know precisely how many cement kilns there are currently in Texas (we’ve asked TCEQ), but we know there is a concentration of them in the Dallas area.
For now, Patrick’s request will not impact concrete batch plants and the other members of the APO industry. It should, as we will see because cement kilns are not the only problematic industry in Texas.
Could TCEQ really halt all permitting?
It’s not clear. Patrick asked TCEQ leadership, and they haven’t answered.
We do know that the agency narrowly interprets its own authority. For many years, TCEQ has taken the position that it lacks the authority to deny a permit. The agency claims it can only apply the permitting formula and issue permits. TCEQ can point out when a permit is deficient or incomplete. However, TCEQ leadership believes it doesn’t have the authority to deny a permit that checks all the boxes.
Patrick sums up this problem quite well in his letter. As he puts it, “You have a formula, and you follow it.”
Seriously? Texas’s environmental regulators have no authority to regulate the environment? This would seem to contradict most environmental laws. The Texas Clean Air Act, for example, grants the state authority to control air pollution “consistent with the protection of public health, general welfare, and physical property[.]” Health and Safety Code Sec. 382.002. A plain reading of that statutory intent implies that the state can deny a permit inconsistent with public health.
We made this recommendation, and others, in August 2021, at the start of the most recent Sunset Advisory Commission review of the TCEQ. We spent most of the 2023 legislative session trying to convince lawmakers that the TCEQ is a broken agency. They didn’t listen, and the TCEQ sunset reform bill passed with only token changes to the agency.
Is halting permitting the right approach?
We support Patrick’s plan to halt permitting until the Legislature can work out a fix. We just have one caveat: halt all permitting, not just permits for cement kilns. To be sure, it is not pleasant to live or work near a cement kiln. But is it any worse than a rock crusher or a chemical plant?
It’s not. If the situation at the proposed Grayson County kiln is bad enough to halt permits for that industry, then we could easily find similar cases for other industries across Texas. Rock quarries, metal recyclers, concrete batch plants–all of these industries have examples of facilities that create unacceptable risks for communities.
We believe permitting isn’t working for communities at all right now. A temporary halt of all permits would send industry a strong signal: it’s time to work with lawmakers to fix environmental regulation in Texas. Maybe that’s the incentive they need.
What’s really motivating Dan Patrick?
Lt. Gov. Patrick’s letter gives clues as to what’s really motivating him: the economy. He starts with a nod to air and water quality, although he fails to mention their direct connection to public health. Clean and clean water are good, but we care about them because they keep us healthy.
Beyond that, Patrick’s focus is on corporate money. He mentions a negative economic impact that could reach billions, loss of thousands of “high-paying jobs,” and potential impacts to a semiconductor plant roughly six miles northeast of the proposed kiln. We’re not sure why Patrick focuses on the plant as containing “smart people who work in complex and precise industries.” After all, don’t all people and industries deserve protection from pollution? Is Patrick only concerned when a billion-dollar industry is impacted? Are thousands of “high-paying jobs” the threshold to care about keeping people healthy? We hope not.
Furthermore, Patrick relies on the “they were there first” argument to point out the injustice of locating a cement kiln next to a chip manufacturer. This argument applies not just to tech companies but to people across Texas in space and time. For example, Houston’s Manchester neighborhood, sometimes called Houston’s most polluted neighborhood, was settled in 1850, decades before either the petrochemical industry or the Houston Ship Channel, sometimes literally across the street from family homes. They were there first. “Across the street” is much closer than six miles. Where’s the permit halt for the residents of Manchester?
Patrick rounds out his concerns by talking about the “survival and strength of our rural communities.” Here we agree–rural Texans are part of what makes our state great–but Patrick’s top-down view misses the obvious: the people in these communities are at risk. It’s the survival of men, women, and children that we should really care about. They are the lifeblood of Texas’ communities–urban and rural.
Although we agree with Patrick about the negative impacts of improperly sited cement kilns, we can’t help but think he’s missing the point. Where’s the plain statement that air pollution is deadly? Where’s the acknowledgment that people in low-income communities of color–environmental justice communities–are most impacted by pollution? Without more focus on the human cost of industry, we can’t help but think that Patrick is just weighing one stack of dollars against another.
Who would actually be harmed by this proposed cement kiln?
We looked at the demographics of the people living near the proposed cement kiln. No people live within 440 yards, a distance often used to judge whether TCEQ will grant a contested case hearing request. The First Baptist Church is within that buffer (just 250 yards east of the proposed kiln), but lawmakers have repeatedly declined to give places of worship the right to file contested case hearing requests. So there’s no one close enough to mount a direct challenge through the administrative process (unless TCEQ chooses to grant someone else that right, but historically, the odds on that are not good).
This Google Earth map shows a 440-yard ring around the proposed facility location. The church is just to the east.
Zooming out a bit, we find just 117 people within a mile of the facility. (This data was retrieved from the EPA’s EJSCREEN tool using a one-mile ring centered on lat/long 33.531618,-96.694147, which is our best guess for the facility location based on permit documents.) The people living within one mile of the proposed facility include the following demographics:
- 26% people of color
- 18% low-income
- 11% with less than high school education
- 1% with limited English speaking ability
- 0% unemployment
- $40,100 per capita income
- 88% homeowners
Taken together, this is the profile of a middle-class rural community. Now, certainly, these people are worthy of protection from environmental hazards. But note that most of the polluting facilities we raise alarms about–the ones located adjacent to hundreds or even thousands of people–tend to be in communities that are overwhelmingly low-income people of color. We call these “environmental justice” communities. As far as we can tell, Sherman, Texas does not fit the profile. Are wealthier, whiter people more deserving of protection?
What does Patrick mean by a permit being “expedited”?
There is one sentence in Patrick’s letter that a quick read might miss: “Under no circumstance should this permit be expedited.” Expedited permitting is a program in Texas that allows companies to get a permit more quickly by paying for the privilege. In 2019, the Legislature passed SB 698, making it a pay-to-play program.
At the time, pro-business lawmakers predictably supported the pro-industry bill. Remember that other TCEQ programs, like enforcement and monitoring, are chronically underfunded. TCEQ serves industry first, and if industry wants to pay its way through the agency, lawmakers are more than willing to let that happen.
But again, Patrick has just learned yet another way that the TCEQ doesn’t work for people or communities. You think expediting this permit is a bad idea? We believe it’s always a bad idea. We suggest a slight modification to Patrick’s statement on the subject: “Under no circumstances should permits be expedited. Period.”
Will the legislature fix this problem?
Now that Patrick is up to speed on the issue, he’s asked the Legislature to act. Given the history of lawmaking in Texas to contain the worst aspects of unrestrained industry, it is likely that the Legislature will propose a narrowly tailored bill, maybe something that proposes bigger setbacks for concrete kilns from people (or chip manufacturers). But why stop there? Permits aren’t just broken in the concrete kiln industry; they are broken across TCEQ.
What actually needs to be done?
First, if setbacks are proposed, let’s apply them across industries. Concrete batch plants, quarries, metal recyclers, refineries, and chemical plants are all industries that shouldn’t be located next to homes, schools, places of worship, and–sure–certain other commercial businesses. Why not stricter setbacks for all of these industries?
Second, let’s unshackle TCEQ so it can do its job. It seems evident that Texas’ environmental regulator should be able to deny a permit. Let’s make that authority clear in the law. Then TCEQ could deny permits in communities where they obviously don’t belong.
This isn’t authority the TCEQ would use often. The agency is, after all, unabashedly pro-business. But there are certainly some cases in which reasonable people would agree that a permit should be denied. Let’s give TCEQ that power.
Patrick has had his first encounter with industry running roughshod over community. Does he see the bigger picture? This isn’t just a problem with cement kilns. Broken permitting doesn’t just affect chip manufacturers. This is a Texas-sized problem, with communities across the state pleading for assistance from TCEQ and finding none.
Not every community has the lieutenant governor’s ear. We hope that he recognizes that this is one example of a much larger problem. The Legislature already failed to reform the TCEQ during the last sunset review.
Patrick had to travel north of the DFW area, where Grayson County is located, to recognize the dirty truth about TCEQ permitting. He could have saved himself a lot of miles. Manchester and communities like it are located on the east side of his adoptive hometown of Houston.
Mr. Lieutenant Governor, how about a town hall in Manchester or thereabout? It’s a much shorter drive than Grayson County.
Shelley is the Texas director of Public Citizen