S.B. 875 (Fraser), as passed by the Senate, would provide that a person (including an individual, corporation, organization, government or governmental subdivision or agency, business trust, partnership, association, or any other legal entity) who is subject to an administrative, civil, or criminal action brought for nuisance or trespass arising from greenhouse gas emissions has an affirmative defense to that action if it was authorized by a rule, permit, order, license, certificate, registration, approval, or other form of authorization issued by the Texas Commission on Environmental Quality, the federal government, or an agency of the federal government and: (1) the person was in substantial compliance with that rule, permit, order, license, certificate, registration, approval, other authorization while the alleged nuisance or trespass was occurring; or (2) the commission or the federal government, or an agency of the federal government exercised enforcement discretion in connection with the actions that resulted in the alleged nuisance or trespass. (The bill exempts nuisance actions related to a “noxious odor.”)

In short, the bill would prohibit most lawsuits against a company that has caused air pollution if the company was in compliance with a state and federal permit when it did so.  The language in the version passed by the Senate is different than that in the as-filed bill.  League staff had some concerns that the as-filed bill was directed at methyl tertiary butyl ether (MTBE), which is a chemical that used to be added to gasoline to boost its octane level and cut air pollution (before it was determined to be carcinogenic). MTBE has been found in some cities’ drinking water supplies. Cities in other states have brought successful lawsuits against gasoline manufacturers, and the as-filed bill appeared to have prohibited such suits in Texas.

After the committee hearing on the bill on March 22 and discussion during Senate floor debate, it doesn’t appear that MTBE contamination is the target of the bill.  Rather, the bill analysis provides that “[i]n the wake of attempted state and federal climate change regulation across the nation, there has emerged a growing trend of attempts to use public nuisance as a means to regulate greenhouse gas emissions.  This emerging tactic of public nuisance claims is anticipated to have a severe detrimental impact on businesses across the United States if left unchecked.” 

City officials’ views on climate change legislation vary substantially, and cities have even fought each other during previous legislative sessions on the issue.  That means the League is unable to take a position on the bill. But those cities that have or may use the courts to seek redress regarding any type of detrimental air emissions, including perhaps that from oil and/or gas drilling or other industrial emitters, should review the bill closely and take appropriate local action.

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