Can Texas TCEQ deny an air permit for a concrete plant because it conflicts with city zoning?

Plain-English summary

The Texas Commission on Environmental Quality issued a standard air-quality permit under the Texas Clean Air Act for a concrete crushing plant in Fort Worth. Before the permit issued, the City of Fort Worth sent the Commission a resolution from its governing body strongly opposing the permit and saying the plant would clash with the city's zoning. A House committee chair asked the AG how much weight the Commission has to give a local government's zoning-based objection, and whether the Commission can deny a permit on that basis.

The starting point is Health and Safety Code section 382.112, which says a local government may make recommendations about a Commission rule, determination, variance, or order affecting its territory, and the Commission "shall give maximum consideration" to those recommendations. The AG read that duty narrowly. When the Commission decides a standard-permit application, the determination it makes is whether the application meets the statutory and administrative prerequisites of the Clean Air Act, not whether the facility complies with local zoning. So the Commission must consider a local recommendation only to the extent it bears on the Act's own requirements. The AG also said the answer does not change if the city adopted its ordinance under section 382.113 (which lets cities adopt air-pollution ordinances consistent with the Act), because the Commission still rules on compliance with the Act, not with local ordinances.

On whether the Commission may actually deny a permit over zoning, the AG distinguished two permit tracks. For permanent concrete plants permitted under section 382.05198, the Commission "shall" issue the permit if the application meets the listed requirements, so a court would likely hold the Commission is precluded from considering local zoning or land use. For general standard permits under section 382.05195, where the Commission "may" issue the permit and the statute is silent on zoning, the AG said the Commission could likewise be precluded if a court found that considering zoning made the decision invalid, arbitrary, or unreasonable. Whether any particular consideration of zoning would be arbitrary, the AG said, raises fact questions that an attorney general opinion cannot resolve.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting committee chair and the Legislature (as the opinion described them): The opinion told them that section 382.112's "maximum consideration" duty does not turn a local zoning objection into a basis for denying an air permit. The Commission's determination is keyed to the Clean Air Act, so a local recommendation matters only insofar as it speaks to the Act's requirements.

The Commission (as the opinion described it): The opinion supported the Commission's position that its permitting determinations are limited to the Act's requirements and prohibitions. For section 382.05198 concrete-plant permits, the opinion treated the "shall issue" language as precluding consideration of local zoning. For section 382.05195 permits, it described the statute as silent and left the line at the invalid-arbitrary-unreasonable standard of judicial review.

Cities and local governments (as the opinion described them): The opinion treated a city's zoning resolution as carrying weight before the Commission only to the extent it concerns the Act, and explained that the legal authority under which a city adopted an air-pollution ordinance (section 382.113) does not expand that role. It did not decide what "maximum consideration" requires, noting that issue was pending in litigation.

Common questions

Does TCEQ have to follow a city's zoning objection to an air permit?
No. The AG concluded that section 382.112 requires the Commission to consider a local government's recommendation only to the extent it concerns the statutory and administrative requirements of the Texas Clean Air Act, not local zoning or land use.

Can TCEQ deny a concrete-plant permit because of local zoning?
For a section 382.05198 standard permit (certain permanent concrete plants), the AG concluded a court would likely hold the Commission is precluded from considering local zoning or land use, because the statute says the Commission "shall" issue the permit when the application qualifies.

What about general standard permits under section 382.05195?
There the statute is silent. The AG said the Commission could likewise be precluded from considering zoning if a court found that doing so made the decision invalid, arbitrary, or unreasonable. Whether that is true in a given case is a fact question the AG did not answer.

Does it matter how the city adopted its ordinance?
No. The AG explained that the Commission decides compliance with the Act, not with local ordinances, so the authority a city relied on to adopt an air-pollution ordinance under section 382.113 does not change the answer.

Background and statutory framework

The Commission administers the Texas Clean Air Act to safeguard the state's air resources (Tex. Health & Safety Code § 382.002(a); § 382.011(a)(1)), controlling air contaminants by all practical and economically feasible methods (§ 382.011(a)(2)-(3), (b)) and cooperating with political subdivisions on matters of common interest in air quality (§ 382.036(4)). It may issue permits, including standard permits for similar facilities (§ 382.051(a)(1), (b)(3)). General standard permits issue under § 382.05195(a) if the Commission makes the findings listed there, with public notice and comment (§ 382.05195(b)-(d)). Permanent concrete plants that perform wet batching, dry batching, or central mixing are governed by §§ 382.05198 and 382.05199; the Commission "shall issue" such permits to qualifying plants (§ 382.05198(a)), with notice and hearing rules and a decision based on whether the application meets section 382.05198 (§ 382.05199(h)).

Section 382.112 lets a local government recommend on a Commission rule, determination, variance, or order, and requires the Commission to give maximum consideration to those recommendations. The AG reasoned that the Commission's standard-permit determination is whether the application meets the Act's statutory and administrative prerequisites, not whether the applicant satisfies local zoning, citing S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013) ("In issuing a permit, the Commission determines that the permit application satisfies the [Act] and applicable rules."). The AG noted, by contrast, statutory factors the Commission does weigh, such as the source's social and economic value and priority of location (§ 382.024) and location limits on concrete crushing facilities (§ 382.065). Section 382.113(b) requires municipal air-pollution ordinances to be consistent with the Act, but the Commission still rules on the Act, not the ordinance.

On denial, the AG contrasted the "shall" issue language of § 382.05198(a) with the "may" issue language of § 382.05195(a). Judicial review of Commission action focuses on whether the action is invalid, arbitrary, or unreasonable (§ 382.032(e)), and an agency abuses its discretion if it fails to consider a factor the Legislature directs, considers an irrelevant factor, or reaches a completely unreasonable result (City of El Paso v. Pub. Util. Comm'n of Tex., 883 S.W.2d 179, 184 (Tex. 1994)). Whether considering zoning in a § 382.05195 decision would be arbitrary raises fact questions an attorney general opinion cannot resolve.

Citations

Cases:

• S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013)
• City of El Paso v. Pub. Util. Comm'n of Tex., 883 S.W.2d 179, 184 (Tex. 1994)

Statutes:

• Tex. Health & Safety Code §§ 382.002(a), 382.011(a)(1), (a)(2)-(3), (b), 382.024, 382.032(e), 382.036(4), 382.051(a)(1), (b)(3), 382.05195(a), (b)-(d), 382.05198(a), 382.05199(h), 382.065, 382.112, 382.113(b)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0190
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0190.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 19, 2018

The Honorable Joseph C. Pickett Opinion No. KP-0190
Chair, Committee on Environmental Regulation
Texas House of Representatives Re: To what extent the Texas Commission
Post Office Box 2910 on Environmental Quality may consider a
Austin, Texas 78768-2910 recommendation from a local government to
deny a permit for a facility because the
facility is incompatible with the local
government's zoning or land use ordinances
(RQ-0185-KP)

Dear Representative Pickett:

     You tell us that the Texas Commission on Environmental Quality (the "Commission") "issued a Standard Permit under the Texas Clean Air Act ... for the operation of a concrete crushing plant in Fort Worth." [1] You state that, prior to the issuance of the permit, the City of Fort Worth "provided [the Commission] with a resolution adopted by the city's governing body strongly opposing the issuance of the permit and stating that the operation of the plant would be incompatible with the city's zoning regulations." Request Letter at 1. You first ask to what extent section 382.112 of the Health and Safety Code requires the Commission "to consider a recommendation from a local government to deny a permit ... because the facility is incompatible with the local government's zoning or other land use ordinances." Id. Section 382.112 provides that a "local government may make recommendations to the commission concerning a rule, determination, variance, or order of the commission that affects an area in the local government's territorial jurisdiction" and that the Commission "shall give maximum consideration to a local government's recommendations." TEX. HEALTH & SAFETY CODE § 382.112. In briefing received by this office, the Commission asserts that while it "gives maximum consideration to recommendations from local governments on whether to approve an air quality permit," its determinations are "limited to the requirements and prohibitions specified in the [Texas Clean Air Act]," and thus, the Commission "does not review or consider whether an applicant is compliant with any other ... local requirement." [2] Other briefing counters that section 382.112 constitutes a "mandate to defer to a city's recommendation," which applies "regardless of the legal authority ... underlying the recommendation." [3]

    The Commission administers the Texas Clean Air Act (the "Act"), which the Legislature enacted for the policy and purpose of "safeguard[ing] the state's air resources from pollution by controlling or abating air pollution and emissions of air contaminants." Id. § 382.002(a); see also id. § 382.011(a)(1) (directing the Commission to administer the Act). The Legislature charged the Commission with establishing and controlling the State's air quality "through the control of air contaminants by all practical and economically feasible methods." Id. § 382.011(a)(2)-(3), (b). In doing so, the Commission must, among other things, "advise, consult, and cooperate with ... political subdivisions of the state ... concerning matters of common interest in air quality control." Id. § 382.036(4).

     The Commission may issue various types of permits for the construction or modification of facilities "that may emit air contaminants," including a standard permit for facilities that are similar. Id. § 382.051(a)(1), (b)(3). General standard permits are issued pursuant to section 382.05195 of the Act, which authorizes the Commission to issue a permit for new or existing similar facilities "if the commission finds that: (1) the standard permit is enforceable; (2) the commission can adequately monitor compliance with the terms of the standard permit"; and (3) the facilities will use specified control technologies based on the timing of the application. Id. § 382.05195(a); see also id. § 382.05195(b)-(d) (requiring public notice of the proposed standard permit, public meeting, and comment opportunity). Permanent concrete plants that perform wet batching, dry batching, or central mixing are governed by the specific standard permit provisions in sections 382.05198 and 382.05199 of the Act. See id. §§ 382.05198(a) (providing that the Commission "shall issue" such permits to plants that meet certain listed requirements), 382.05199(h) (governing public notice and hearing requirements for standard permits issued under section 382.05198 and directing the Commission's executive director to approve or deny the application within a certain time frame "base[d] ... on whether the application meets the requirements of Section 382.05198"). [4] Neither the general standard permit provision nor the specific standard permit provision applicable to certain concrete plants requires consideration of factors outside of the Act.

   Section 382.112 applies to a local government's recommendation "concerning a rule, determination, variance, or order of the commission." Id. § 382.112. With regard to standard permits, the determination the Commission makes is whether a permit application meets statutory and administrative prerequisites such that the Commission is authorized or required to issue the permit, and not whether the applicant meets local zoning and land use requirements. [5] See S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013) ("In issuing a permit, the Commission determines that the permit application satisfies the [Act] and applicable rules."). Thus, in answer to your first question, section 382.112 requires the Commission to consider a local government's recommendation only to the extent that the recommendation concerns the statutory and administrative requirements of the Act. [6]

    You also ask whether it would make a difference "if the local government's recommendation was ... adopted in accordance with Section 382.113 ..., which specifically authorizes the adoption and enforcement of municipal ordinances for the control and abatement of air pollution." Request Letter at 1; see also TEX. HEALTH & SAFETY CODE § 382.113(b) (providing that any such municipal ordinances "must be consistent with [the Act] and the commission's rules and orders"). The Commission makes determinations regarding compliance with the Act's requirements, not the requirements of local government ordinances. Thus, the authority for adopting the ordinance would not change the answer.

    Your remaining questions are related so we address them together. You ask whether the Act "specifically preclude[s the Commission] from considering a local government's zoning, land use, and other ordinances in determining whether to issue a permit" and whether the Commission "would be authorized to deny the issuance of a permit" based on those factors. Request Letter at 1-2. With respect to standard permits under section 382.05198 for permanent concrete plants that perform wet batching, dry batching, or central mixing and meet certain other requirements, the Commission "shall" issue the permits, whereas the Commission "may" issue general standard permits under section 382.05195 if certain requirements are met. See TEX. HEALTH & SAFETY CODE §§ 382.05195(a), .05198(a). Thus, the statutory language appears to preclude the consideration of (and denial due to) zoning, land use, and other ordinances for section 382.05198 permits and is silent regarding section 382.05195 permits. Ultimately, judicial review of a Commission action other than cancellation or suspension of a variance focuses on "whether the action is invalid, arbitrary, or unreasonable." Id. § 382.032(e); see also City of El Paso v. Pub. Util. Comm'n of Tex., 883 S.W.2d 179, 184 (Tex. 1994) (an agency abuses its discretion or its decision is arbitrary "if the agency: (1) failed to consider a factor that the legislature directs it to consider; (2) considers an irrelevant factor; or (3) weighs only relevant factors that the legislature directs it to consider but still reaches a completely unreasonable result" (emphasis added)). Whether the Commission's consideration of zoning and land use regulations in a decision on a standard permit application under section 382.05195 is invalid, arbitrary, or unreasonable raises fact questions that cannot be answered in an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0106 (2003) at 7 ("This office cannot find facts or resolve fact questions in an attorney general opinion.").

                                 SUMMARY

                  Section 382.112 of the Health and Safety Code requires the Texas Commission on Environmental Quality to consider a local government's recommendation on a standard permitting determination only to the extent that the recommendation concerns the statutory and administrative requirements of the Texas Clean Air Act. A court would likely conclude the Commission is precluded from considering local zoning, land use, and other ordinances in standard permitting decisions made under section 382.05198. The Commission could likewise be precluded from considering local zoning, land use, and other ordinances on standard permitting decisions made under section 382.05195 if a court construed such an action as invalid, arbitrary, or unreasonable.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Joseph C. Pickett, Chair, House Comm. on Envtl. Regulation, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Oct. 10, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] See Brief from Caroline M. Sweeney, Deputy Dir., Office of Legal Servs., Tex. Comm'n on Envtl. Quality at 6 (Nov. 13, 2017) (on file with the Op. Comm.).

[3] See Brief from Scott Houston, Deputy Exec. Dir. & Gen. Counsel, Tex. Mun. League & Tex. City Atty's Ass'n at 4 (Nov. 9, 2017) (on file with the Op. Comm.).

[4] You do not tell us whether the standard permit issued in this instance was pursuant to section 382.05195 (Standard Permit) or section 382.05198 (Standard Permit for Certain Concrete Plants).

[5] But see TEX. HEALTH & SAFETY CODE §§ 382.024 (requiring that in issuing orders and making determinations, the Commission "shall consider the facts and circumstances bearing on the reasonableness of emissions, including ... the source's social and economic value [and] the question of priority of location in the area involved ...."), 382.065 (prohibiting certain locations from operating concrete crushing facilities).

[6] We do not address what constitutes "maximum consideration" as contemplated by section 382.112 because this issue has been raised in recently-filed litigation and thus is for the trial court to determine. See City of Marble Falls v. Tex. Comm'n on Envtl. Quality, No. D-1-GN-18-000020 (261st Dist. Ct., Travis Cty., Tex. Jan. 2, 2018).