Giving Large Polluters a Pass on the Clean Air Act? The TCEQ Is Pushing for It
By Kathryn Guerra and Cass Levin
The state’s environmental regulator, the Texas Commission on Environmental Quality (TCEQ) is considering a new proposal to implement an Alternative Fee Program to fulfill Texas’ responsibilities under Section 185 of the Clean Air Act.
What is Section 185? It is intended to improve air quality in severe and extreme non-attainment areas, which are regions where pollution levels exceed national air quality standards. Section 185 does this by assessing a financial penalty against major stationary sources – refineries and power plants are examples of stationary sources – that emit the pollutants that cause non-attainment. But the TCEQ wants to try something different.
The TCEQ proposes to use funds the agency already collects through the Texas Emissions Reduction Plan (TERP), which is funded by Texas drivers through vehicle title and registration fees, to count towards the debt owed by private industry, significantly reducing or eliminating it. The TCEQ’s proposal is yet another example of the agency serving the interests of the industry. By using an accounting trick to forgive an obligation Congress imposed on industry, this program would fail its primary goal of improving air quality while passing the bill to Texans.
How Section 185 Works
Section 185 of the Clean Air Act is triggered when a region in severe or extreme nonattainment fails to meet deadlines to reduce air pollution. If the air quality is not improved, Section 185 states that a state must impose a financial penalty on certain large stationary polluters that produce emissions contributing to non-attainment. In Texas, for example, the Dallas-Fort Worth and Houston-Galveston-Brazoria areas are in non-attainment for ozone. The pollutants that create ozone are volatile organic compounds (VOC) and nitrogen oxide (NOx). Polluters would be assessed a penalty per ton of VOC and/or NOx a facility emits.
What is TCEQ’s Proposed Alternative Fee Plan for Section 185?
The TCEQ is proposing to use the TERP fund to credit and offset any Section 185 penalty fees owed by major source stationary polluters in the Houston-Galveston-Brazoria and Dallas-Fort Worth ozone nonattainment areas.
TERP is a grant program managed by the TCEQ to improve air quality across the state through the collection of fees from a variety of sources, including the sales and rentals of heavy-duty diesel vehicles, as title fees drivers pay when buying or transferring ownership of a vehicle. The TCEQ uses the funds to create grants that Texans can use to replace certain types of older vehicles with newer, more efficient ones. TERP has been a largely successful program in reducing NOx emissions and has proven incredibly cost-effective.
The TCEQ estimates that the implementation of the Section 185 fee program, as intended, would generate over $200 million every year for the Houston-Galveston-Brazoria and Dallas-Fort Worth areas. The state could reinvest those funds into administration of Clean Air Act requirements.
Why is TCEQ’s proposed Alternative Fee plan not sufficient?
Rather than improving air quality, this plan proposes using fees paid by Texas drivers to pay a debt Congress specifically said should be paid by polluters. The TCEQ’s proposal will not improve the air quality of either region, as it allocates no new funds for air quality programs, nor does it disincentivize large stationary polluters from continuing to pollute Texas’ air.
What can we do?
Texans deserve clean air. It’s up to us to tell the TCEQ we will not accept their plan to excuse large polluters from their Clean Air Act obligations and demand that the agency implement the penalty fee as Congress intended.
The TCEQ is hosting a virtual public hearing this Thursday, June 12, to receive feedback on its proposed plan. Here’s how you can tell the agency its proposal is a terrible idea:
- Register to attend the virtual public hearing on June 12 at 1:30 p.m.
- Register to speak in opposition to the proposal by emailing rules@tceq.texas.gov and providing the project number 2023-131-101-AI, your name, affiliation, email address, phone number, and if you would plan to provide oral comment.
- Submit written comments by June 18 via the agency’s online public comment system, by fax to 512-239-4808, by courier or by U.S. mail.
People must come before profits. Please attend the hearing and tell the TCEQ to hold corporate polluters accountable and reject the plan to let them off the hook for their Section 185 obligations.