Texas Attorney General Ken Paxton has quickly prosecuted two firms at their Houston-area plants following large fires in recent weeks. It is a radical break from the normal strategy of the State to implementing the climate.
Last month, when firefighters were trying to control a raging fire at a petrochemical manufacturing plant near Houston, the state of Texas did something unheard of, at least in modern memory: it prosecuted the site management corporation until the wildfire was finally extinguished. Last week it did the same thing again — a chemical explosion broke out at another Houston-area factory the same day.
“Polluters will be punished,” tweeted Gov. Greg Abbott on March 22, after Texas Attorney General Ken Paxton — Abbott’s replacement — revealed that he has lodged a complaint against Intercontinental Terminals Corporation claiming violations of state environmental law.
In a statement Paxton said the state “works hard to maintain good air quality and will hold ITC accountable for the damage it has done to our environment.” He also noted that ITC “has a history of environmental violations.”
More than two weeks later, Paxton ‘s office prosecuted pesticide maker KMCO on Tuesday the same day a fire broke out at its Crosby factory, killing one worker and seriously injuring many others.
Paxton ‘s willingness to bring sue immediately regarding both events is a major departure from the State ‘s previous commitment to regulation of the climate. As one reason, the state also doesn’t prosecute over these incidents — even bigger, more serious ones like the 2013 explosion at a fertilizer plant in western Central Texas town that killed 15 people, including 12 first responders, and wounded 200. (The year after that accident, General Abbott released a rule which made it easier for the public to know what dangerous chemicals are contained in these facilities).
Once the State sought proceedings in litigation, actions were always slow:
Following an fire at BP’s Texas City plant in 2005, 15 employees were killed and 180 wounded, Texas brought a case against the firm years later — and then after the federal government threatened the business with hundreds of millions in penalties.
The state was equally reluctant to prosecute BP after a accident and explosion at the 2010 offshore oil platform Deepwater Horizon killed 11 employees and resulting in what is considered to be the worst underwater oil leak in history. Three years later Abbott brought the business to trial having previously suing five other Gulf Coast states and a bevy of local governments.
In 2015, Harris and Fort Bend counties — to the obvious chagrin of Paxton — beat the state to the punch in suing Volkswagen following the acknowledged usage of malware by the German automaker that enabled its cars to exceed pollution limits.
Yet Harris County almost instantly brought a complaint against the facility’s company, Arkema Inc., following fires at another Houston-area chemical plant after Hurricane Harvey. Months after the defendant entered the case. This also stays outstanding.
For advocacy organizations who have long been urging the state to clamp down on illegal industrial polluters — and who are closely tracking their treatment of these events — Paxton ‘s swift legal action against ITC and KMCO was a pleasant move.
“I have not found anybody who remembers an instance like this,” said Adrian Shelley, the director of the Texas office of Public Citizen and the former longtime head of the Air Alliance Houston.
“It’s great,” said Bob Stokes, president of the Galveston Bay Foundation and former Harris County environmental prosecutor, adding ‘I’ve never seen the state file an action on the day of an incident.”
Paxton ‘s office forwarded the litigation concerns to the Texas Environmental Protection Board, the state’s environmental compliance body, which forwarded the cases to Paxton. A spokeswoman for the department stated in a statement that “has consistently exercised its enforcement authority to protect public health and the environment by referring companies to the Office of the Attorney General for civil enforcement.”
“TCEQ will continue to hold bad actors accountable for violations of environmental laws,” the statement said.
Indeed, TCEQ’s regular state compliance statistics show that each year, the department refers a few hundred criminal lawsuits to the attorney general’s office culminating in tens of millions of dollars in penalties, typically following unsuccessful efforts to get a corporation to comply with state laws via administrative disciplinary action.
Environmental authorities have long been up front in Republican-led Texas that their commitment to environmental legislation is less about financial or legal retribution and more about coaxing business into line with state and federal regulations.
State reports reveal that the most prevalent route to environmental regulation is by a much less open regulatory mechanism, where companies frequently seek lower penalties imposed months or even years later by compliance directives.
And Paxton and Abbott had more people go after federal officials than pollution criminals, filing scores of complaints against the U.S. Environmental Protection Agency under the Obama period. But the abrupt shift in the compliance policy of the State has often sparked concerns.
On Wednesday, the activist organization Lone Star Project released a press release accusing Paxton of possessing more motivations — and going so far as to name him “Chemical Ken” — arguing that his quick intervention was motivated by a effort to discourage local environmental authorities, who the organization claims would seek higher fines against the businesses, and would obtain a decrease in such fines if they were to be levied.
“Paxton can now act as a ‘friendly plaintiff’ who is only technically in opposition to the companies,” the release said. “He can agree to a settlement with a relatively small fine and little or no safety reforms.”
The office of the Harris County Attorney has long hired a squad of conservative environmental lawyers who, soon after the state did, brought their own cases against ITC and KMCO. It’s not clear if the state case would bypass Harris County’s, said Rock Owens, the former environmental lawyer for the city.
Yet if Paxton seeks to circumvent the case brought by Harris County, “we intend to challenge him,” he added.
Owens said the county is also inspired to prosecute companies because it recognizes that the state may not be following the lead.
Since at least 2013, Gop state senators have regularly introduced — with inconsistent success — bills that would restrict the right of Harris County and other municipal municipalities to sue over environmental offenses. This year, a bill introduced by State Rep. Greg Bonnen, House Speaker ‘s brother Dennis Bonnen, will force Paxton to sign off when counties and communities decide to recruit environmental attorneys from outside and encourage him to deny such deals because his office is still investigating related litigation.
Owens said the county is also inspired to prosecute companies because it recognizes that the state may not be following the lead.
Since at least 2013, Gop state senators have regularly introduced — with inconsistent success — bills that would restrict the right of Harris County and other municipal municipalities to sue over environmental offenses. This year, a bill introduced by State Rep. Greg Bonnen, House Speaker ‘s brother Dennis Bonnen, will force Paxton to sign off when counties and communities decide to recruit environmental attorneys from outside and encourage him to deny such deals because his office is still investigating related litigation.
Carman has said cases are low-hanging fruit for the state because they include largely small businesses who don’t have the legislative influence of the industry’s bigger players.
“ITC is not ExxonMobil or Shell Oil,” he said. “TCEQ wants to show it’s aggressive in enforcement when it’s not.”
