Tragedy of the Commons in Texas: Citizens Lose if Bill Becomes Law

pollution-pixabayUpdate: Governor Abbott signed SB 709 into law on May 23, 2015.

I overheard a colleague last week say she was impressed a group of elementary school students were learning about the tragedy of the commons, and it reminded me of what’s been going on at the Texas Legislature this session. The “tragedy of the commons” is a term coined in the late 60’s by ecologist Garret Hardin, described as “a situation where individuals acting independently and rationally according to each’s self-interest behave contrary to the best interests of the whole group by depleting some common resource.” It’s an unfortunate allegory for Texas politics and specifically the passage of Senate Bill (SB) 709, which is on its way to the governor’s desk as I write this.

In this case, a few individuals (polluting corporations and the lawmakers they fund) are acting in their self-interest, creating legislation that will get more money in their pockets faster. Unfortunately, the best interests of the whole group (all Texans) are virtually forgotten, and common resources like healthy air and water will suffer. The final bill, SB 709 sponsored by Senator Troy Fraser (R-Horseshoe Bay), shows Texas’ leadership cares more about protecting big polluters at the expense of its citizens.

And while Sen. Fraser’s bill was the one that ultimately passed, the companion measure in the House, House Bill 1865, by Representative Genie Morrison (R-Victoria) included the same agenda and language. Rep. Morrison is from Victoria, Texas. As someone who is supposed to be fighting for the best interests of her constituents, many in Victoria are questioning just whom Morrison and other Texas lawmakers represent.

A bit of background on SB 709

SB 709 is designed to make it more difficult for citizens to legally contest permit applications at the Texas Commission for Environmental Quality (TCEQ) for potentially dangerous incoming entities like factories, chemical plants, and waste disposal sites. These aren’t lawsuits run amok that are hurting the efficacy of the system – in fact, “out of some 1,900 environmental permit applications last year, only 10 were contested,” according to Alliance for a Clean Texas.

A group of Senators, including Sens. Watson (D-Austin), West (D-Dallas), and Garcia (D-Houston), raised concerns that, among other issues, the bill would:

fundamentally impede individual rights and further align the TCEQ with business interests rather than the public, and that citizens do not have enough opportunity as is to learn about permit applications that may affect them.”

This law includes legalese that most Texans shouldn’t have to sift through, yet Texans need the ability to seek recourse when a permit may affect their families and livelihoods. This bill would make it harder for people to be heard. And yet it is quietly ready for the Governor’s likely signature.

The Rancher, the Fisherman, and the Nun

In multiple op-eds and a letter to the editor, the local newspaper from Rep. Morrison’s own district, the Victoria Advocate, shared personal stories and other real consequences this law will have.

The rancher: Terrell Graham, of Goliad County, is a rancher and retired engineer, concerned with protecting the rights of Texas property owners. In his own words, he appealed to Morrison and others to not pass this bill:

As a property owner in Goliad County, I have huge concerns with these bills. My family and I have spent more than a year engaged in opposing a permit that would allow the Johnson Ranch subdivision to discharge 350,000 gallons per day of treated sewage effluent on to our family ranch… To put this into perspective, everyone is familiar with the tank trailers that deliver gasoline to their service station. These each contain approximately 9,000 gallons. This would equate to almost 39 of these trailers discharging their contents onto our property each day.

These bills would allow the TCEQ to deny a hearing request without allowing the requester an opportunity for discovery, presentation of evidence, cross-examination and argument against the TCEQ decision.

We have heard that the intention of these bills is to encourage economic growth. As an engineer and craftsman who spent his entire career either building or maintaining industrial equipment, I have never heard anyone say the contested case hearing process was hampering economic development. I had never even heard of the contested case hearing process until we were involved in it.

We always hear that Texas is a property rights state. But, from what I have seen, individual property owners are extremely disadvantaged under state law when it comes to their rights as property owners.”

The fisherman: For almost 60 years, Wesley Blevins has sold shrimp caught in San Antonio Bay. Blevins and his wife now operate a seafood market a block from the bay, selling those locally-caught shrimp.

Despite owning a business that depends on the health of the bay, the state’s environmental agency staff recommended Blevins’ voice not be heard by officials considering an upstream project that could affect the bay’s salinity. The agency’s reasoning: the storefront where Blevins sells bay-caught seafood is a block from the water.

I’m proud I grew up a commercial fisherman. My daddy was, and my brothers still are. I do have a place right on the bay, and I buy shrimp and oysters down there. My seafood comes straight from the water down here. If something happens to the bay system where it’s no good, I’m going to lose a lot of money.”

Blevins’ story is sadly ironic considering one of the arguments for the bill is to protect the state’s economy.

The nun: Catholic bishops and other clergy uphold a national position on open and participatory environmental decisions, inherently aligning them against SB 709. Sister Elizabeth Riebschlaeger, on behalf of the Congregation of Charity of the Incarnate Word, Cuero, said:

This law will gut the process and erect barriers to meaningful citizen participation.

A contested case hearing is the one way Texas citizens have to require an independent and fair hearing raising issues about the impact of a proposed project on a community. This is the very process that citizens of Nordheim are using to protest the location of an open pit, solid oilfield waste processing facility next to their ranches, only a quarter mile from the city limits.

Of the thousands of permit applications received by TCEQ, less than 1.1% ended up going to a contested case hearing. Business interests argue that regulators do not issue permits expediently compared to other states. This is simply not true. Texas issues air permits faster than all but three states.

It is not the citizens who are asking the state for permitting to potentially pollute the environment and impact their lives, yet they will bear the burden of proving this.

Industry sails through if citizens fail.”

Basically, you have to be an attorney – or be able to afford a team of attorneys and experts – for a long, drawn-out process in order to defend your basic property rights and health. Terrell Graham feels “blessed” to have had the resources and ability to fight in his case, but worries “about the average family that’s living paycheck to paycheck? What chance do they have?”

Even a former administrative law judge who was once in charge of these applications, Carol Birch, sees the undemocratic nature of the bill, stating “the contested-case hearing is at the heart of a democratically run government.”

Texas shouldn’t allow self-interested actors to destroy our air, water, and soil – our collective commons. Even schoolchildren know better.

EDF, along with many other groups, have already urged Governor Abbott to stop SB 709 from becoming law – but you contact him today.

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