June 13, 2007
Madame Chair, Commissioners Soward and Garcia: Thank you for the opportunity to address you on this critical issue. You all have difficult jobs, and we thank you for your service. The choice before you today, commissioners, is whether you should overturn the considered ruling of your administrative law judges and permit the first lignite coal-fired power plant in Texas in a quarter century. This facility has been labeled hazardous to the public health, bad for the environment, out-of-step with a recent ruling of the United States Supreme Court, and predicated on inadequate and unproven technology. Most folks would think that such a facility wouldn’t, just couldn’t be built. Why would it? After all, an administrative law judge said, “don’t permit such a facility.” And, that admonition came despite a pressured process in which the political goal was to fast track this facility to get it built as quickly as possible.But, sometimes the process works. A system set up to rely on facts, evidence and science can overcome politics. You should uphold that determination and deny this permit because, to begin with, there needs to be a compelling, justifiable reason to overturn the product of your process. That product, in this case, was a ruling in favor of health and the environment. To override that, you have–and you should have–a high burden to overcome. ____ You also should deny this permit because of the special commitment this agency made to Central Texas. This agency signed a Clean Air Early Action Compact with several community leaders and elected officials to begin voluntarily cleaning up the air. Since then, businesses and citizens have invested in new practices that would reduce pollution, while cities, counties and towns of every stripe adopted policies to clean the air and stay out from under the thumb of the federal government. The compact was historic. It was public policy at its best. It was government figuring out ways, in conjunction with business, industry and the general public, to take responsibility, clean up the air, and protect the health of its citizens–before being required to do so. And, it’s worked. Emissions are down on a per capita basis while the economy and population have grown. Now, we have one plant that could, if permitted, blow it all up. But this agency should be committed to this compact. TCEQ is a partner in protecting the health of Central Texans and our economy. And this partnership demands that you reject any permit that would push our region into non-attainment with the Clean Air Act. Why would you undermine a successful agreement or our efforts to voluntarily clean up the air? What encourages people or local governments to be proactive or work with TCEQ in the future if they can’t count on you to be supportive and help them succeed? Why trust that you won’t come in later and negate all of their work with one single act? Especially when such an act contradicts the recommendations of the administrative law judges. ____ The truth is, commissioners, it’s long past time for Texas to take responsibility for ensuring the health and welfare of Texans. That responsibility begins with you.Commissioners, you were appointed to ensure that Texans–the people– are in charge of this bureaucracy. The bureaucracy meant to protect them. As difficult as your jobs are, you’re here so that someone closer to the people will ensure the health and safety of Texans takes precedence over the preferences of a bureaucracy or the plans of a company. Is it working? With all due respect, what are the signs that the people can, or can’t, count on you? Here’s one. I have practiced law for a quarter of a century, and it’s a rare case indeed for a prevailing party, the folks who won to ask the equivalent of the appellate court– such as yourselves – to remand a case back to the court that just ruled in their favor. On it’s face, it doesn’t make sense. Why go back to where you just won? To win again?But, part of the reason is a lack of trust of TCEQ. If there’s no faith in this agency to uphold it’s own process, then what choice is there?On the other hand, those who lose typically want a retrial, rehearing or remand. But, not in this case. I wonder what the Vegas odds are on you overriding the ALJ’s recommendation and granting this permit. I think most folks, including me, are afraid to take a chance, fearing the deck is stacked and the dice are loaded.People should expect and believe the Texas Commission on Environmental Quality is going to instinctively stands up for the public’s health and the environment.The truth is you have two fundamental obligations to the Texans you serve: to protect their health, and to reassure them that you’re doing just that. If people don’t feel safe, they aren’t safe.Today, you have the chance to protect the public and to reassure people that you are. _____ While they aren’t parties to today’s proceedings, I do want to thank the potential buyers of TXU for some of the commitments they’ve made through this process. And for their willingness to sit down and talk and at least explore opportunities for reducing ozone in the Central Texas region.Sadly, however, the fact that local government’s feel the need to negotiate directly with permit applicants in the hopes of protecting their citizens is another sign of the lack of confidence in this agency. It shouldn’t be necessary.____ I look forward working closely with you and commit my office to providing whatever I can to help you in you jobs. Again, thanks for your service.