May 12, 2015
by George S. Christian
Important public policy is making its way through the Texas Legislature that will correct a serious and inadvertent flaw in the ability of the state to promote compliance with environmental standards and encourage prompt remediation of contaminated sites.
Under existing law, local governments may sue individuals and businesses to collect penalties for alleged environmental violations. While this provision has been in the law for decades, it has recently been used to seek billions of dollars in penalties going back in time for decades— despite the fact that the alleged polluters have spent millions of dollars cleaning up the contamination under the guidance and direction of the state. In at least one of the cases, the so-called violator didn’t even own the property when most of the alleged violations occurred.
These penalty-only lawsuits are intended to punish wrongdoers and deter people from committing environmental violations. In these recent cases, however, the targets of the lawsuits were in compliance with remediation programs administered by the state. In other words, the lawsuits sought to punish businesses for doing exactly what they were supposed to do.
Senate Bill 1509 by Sen. Kelly Hancock, R-Fort Worth, is a common-sense approach that allows local governments to continue to seek substantial penalties to stop and deter environmental violations but does not permit the recovery of unlimited penalties when the alleged polluter notifies the state of a violation and works in good faith with the state to clean up the mess.
Despite claims by some of the opponents of the bill, nothing in SB 1509 or its companion, House Bill 1794, prevents a local government from recovering actual damages from an environmental violation or an affected individual from filing suit for injury or property damage from a violation. Anyone, whether an individual or business, who pollutes the environment should be required to clean up the site and pay damages to persons who were harmed and to the local government where the violation occurred. SB 1509 preserves these remedies in full.
One of the primary reasons that Texas leads the nation in job creation is a balanced and reasonable regulatory environment. Subjecting individuals and businesses to unfair and punitive lawsuits, however, even when they take swift action to repair the damage is neither balanced nor reasonable. SB 1509 strikes the right balance between vigorously enforcing environmental standards and encouraging good faith remediation whenever it is necessary.
George S. Christian is senior counsel for the Texas Civil Justice League.