Environmentalists, Harris County Attorney Urge Ken Paxton to Actually Sue Polluters

Environmentalist groups and their allies held a press conference in Austin on Tuesday to pressure Texas Attorney General Ken Paxton into litigating polluters. 

Luke Metzger, executive director of the nonprofit Environment Texas, accused Paxton of stalling several high-profile pollution cases that the attorney general’s office had gotten involved with. 

Metzger said the Texas Commission on Environmental Quality, the state agency in charge imposing penalties on polluters, rarely does so. A report by Environment Texas and the Environmental Integrity Project found TCEQ imposes penalties on less than 3 percent of illegal pollution releases. 

As a result, Metzger said the responsibility of bringing polluters to justice has fallen to nonprofit groups and local governments that can file lawsuits to extract civil penalties from oil and gas companies.

“Recent laws passed by the legislature allow the attorney general and TCEQ to preempt pollution lawsuits for civil penalty,” Metzger said.

“Increasingly we’ve seen the state preempt local governments and nonprofits in their efforts to hold polluters accountable,” Metzger said.

Metzger said Paxton has already preempted at least four lawsuits with his own litigation that continues to stall. For example, in 2019, environmentalists filed a lawsuit against Valero Energy for emitting 1.8 million pounds of unauthorized pollution, but the case was preempted by Paxton’s office two months later in a separate forever-suit. 

“We need Valero to stop polluting,” said John Beard with the Port Arthur Community Action Network. “In the time the attorney general took over this case, nothing has been done. But we have to breathe everyday.”

Other lawsuits that remain stalled include cases against TPC, ITC and Exxon Mobil.

“Three years have passed since Paxton filed suit in these four lawsuits, and there’s no accountability in site,” Metzger said. “I honestly don’t understand what’s taking so long.”

Harris County Attorney Christian D. Menefee, who has made purising litigation against polluters a priority since entering office, also spoke at the press conference and said the state government consistently undermined local officials.

“We’ve seen the attorney general work time and time again, not just to take cases from us, but to get new laws passed to undermine us,” Menefee said referring to House Bill 1794, a bill passed in 2015 that capped the payout counties could receive from pollution lawsuits, and HB 2533, a bill passed in 2017 that made it easier for the attorney general’s office to preempt the lawsuits of local governments by requiring a 90-day notice period for local officials.

“Since that law was passed in 2017, every single case that we have provided notice on — except for two — has been taken by the state of Texas,” Menefee said. “And in those cases where we were allowed to pursue a penalty case, we believe that those were mistakes. They simply forgot to take the case from us within the notice period.”

“When the state takes these cases away from Harris County, they don’t just take it away from county government, they take it away from judges who are elected by the people of Harris County to ensure fairness and impartiality,” Menefee said. “They take it away from jurys who are best positioned to determine what amount is necessary to hold these companies accountable when we have large-scale pollution events.”

Menefee said the settlements the state has reached on pollution lawsuits are pennies on the dollar, between 3 to 7 percent of the maximum penalty. 

“Don’t take our cases, but if you’re going to take them, actually fight to hold folks accountable and to ensure that they’re properly disincentivized from this behavior in the future,” Menefee said.

Photo: Tony Webster / Wikimedia Commons