When pollution is at its worst in Port Arthur, brownish-gray smog covers the sky and the smell of chemicals burns the noses and throats of residents. John Beard, an environmental advocate who grew up in the town and used to work in local refineries, is one of many residents who suffer from lung and respiratory issues he blames on the townโs poor air quality.
For the last few years, Beard has been battling the development of two multibillion-dollar liquefied natural gas plants in his predominantly Black and Hispanic coastal town. GoldenPass, funded by ExxonMobil, is already under construction. Port Arthur LNG, a subsidiary of a California energy company called Sempra, is still undergoing permitting and is expected to be built in Port Arthur in the next few years. Both plants will pipe in fracked gas from West Texasโ Permian Basin to process and export to countries across the globe โ and theyโll increase the air pollution local residents breathe in daily.
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โThese companies, no matter what they say, are basically sacrificing communities of color in order to get wealthier, more affluent communities cheap fossil fuels,โ Beard said. His organization, Port Arthur Community Action Network, has in recent years become the de facto face of the fight against these plants, representing Port Arthur residents who are tired of being on the receiving end of pollution.
To prevent at least some of that pollution, Beard requested and received a hearing with a state administrative law judge. In his hearing, he argued the Texas Commission on Environmental Quality should set lower pollution limits at Port Arthur LNG. Beard won his case in May, but his victory was ignored by TCEQ during a September meeting. The agency said that increasing pollution controls would be too expensive for Sempra.
Beardโs still ongoing fight, advocates and experts say, is a prime example of how difficult state law makes it for residents to fight new sources of pollution in Texas and how frequently the agency dismisses citizensโ concerns, ultimately discouraging citizens from even attempting to fight the ever-expanding fossil fuel industry in Texas.
TCEQ declined to comment for this story because Beardโs lawyers have filed an appeal and the legal challenge is ongoing.
TCEQ โputs this incredibly high burden on any community member trying to get access to the process,โ said Erin Gaines, a lawyer with Earthjustice who has worked with residents in other cases against liquefied natural gas export terminals in Texas. In Brownsville, community members had filed nearly two dozen contested case hearing requests over the last six years against the export terminals that are slated for construction nearby. Only one of those requests for hearings in front of an administrative judge was granted.
โIt has a chilling effect,โ Gaines said. โIf you know that the agency doesnโt grant affected person status for recreation โ because they regularly walk or kayak near a place โ then people arenโt even going to raise those interests anymore because they know TCEQ wonโt grant a hearing.โ
Maximum controls
Beard first filed for a contested case hearing against Port Arthur LNG last year. Such hearings allow private citizens to make a case against permits issued by TCEQ that might have a direct impact on them.
During the hearing, Beard and his lawyers presented detailed evidence that Port Arthur LNGโs air quality permits, as they had been approved by TCEQ, could increase residentsโ health risks โ and that the company was using outdated emissions control technology, which they allege violated certain standards set in the federal Clean Air Act.
โPort Arthur LNGโs own modeling showed that the level of nitrogen oxides they were emitting at Johnโs house was above what TCEQ and EPA call a significant impact level,โ said Colin Cox, an attorney with the Environmental Integrity Project who worked on the case. Beard and his community wanted the plant to install better controls and reduce its emissions of two compounds in particular โ nitrogen oxides and carbon monoxide, which can increase risks of respiratory issues โ by a few parts per million each.
But Port Arthur LNG argued achieving those limits would be financially infeasible at the facility. It also claimed the technologies on the market havenโt been tested in existing facilities. Beardโs lawyers disagreed โ but TCEQ staff provided testimony during the case that mirrored Port Arthur LNGโs claims.
The state judge who heard the case ruled in favor of Beard and recommended that Port Arthur LNGโs permits be redrawn to require the new emissions control technologies.
However, in a public meeting in September to decide on the fate of the permit, Jon Neirmann, TCEQโs executive director, said he disagreed with the judgeโs decision and stood by the agencyโs previous decision on what counted as the best available control technology. The agencyโs commissioners approved the permit as originally written, disregarding the judgeโs recommendation.
Advocates and experts say the ruling illustrates TCEQโs backward looking approach that often sidesteps implementing newer, better technologies at the facilities it permits.
Federal standards require that companies use whatโs known as โbest available control technologiesโ to achieve the โmaximum degree of reduction for each pollutant subject to regulation,โ while considering energy, environmental and economic impacts.
While it is the Environmental Protection Agencyโs job to oversee the standard, it is up to each state to determine, on a case-by-case basis, how to implement and enforce that standard.
TCEQ relies on a survey of technology used at facilities that are already operational โ meaning that companies can use older, cheaper, and less effective technologies in their plants.
โItโs a really different process [than what the EPA uses], and it makes no sense to me that TCEQ can say they reached the same end [as the EPA], because they just donโt, in practice,โ said Kelly Haragan, the director of the environmental law clinic at the University of Texas at Austin.
Cut out of the process
In other parts of Texas where similar LNG projects are being permitted, residents have been cut out of the public process altogether. Gaines, the lawyer from Earthjustice, represented residents who will have to drive past one plant every day on the only road in and out of their neighborhood; she also represented a group of shrimpers concerned their livelihoods would be affected by the plantsโ proximity to crucial waterways.
The commission ruled none of these residents were eligible to challenge the plantsโ permits. If they are denied a contested case, residents have fewer options to appeal directly to a state court, since contested case hearings are usually the first step in a bigger legal challenge, Gaines said.
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The heavily industrialized city of Port Arthur on July 2, 2018. Credit: Pu Ying Huang for The Texas Tribune
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Port Arthur industrial facilities with a nearby neighborhood in the foreground on July 2, 2018. Credit: Pu Ying Huang for The Texas Tribune
First: An industrial area of Port Arthur in 2018. Last: Residential neighborhoods sit close to heavy industry in Port Arthur. Credit: Pu Ying Huang for The Texas Tribune
Even in Beardโs case, Port Arthur LNG initially attempted to get the case thrown out on grounds that Beard wasnโt an โaffected partyโ and therefore didnโt have legal standing to challenge the permits, claiming that his concerns werenโt โdistinguishable from those common to the general public.โ
Beard, of course, disagrees. โThis area is less than 1,000 feet from places where I recreate and fish, and itโs less than five miles from my home,โ Beard said. โFor them to say that thereโs no effect when they are knowingly increasing the pollution in the air โ that flies in the face of all reality.โ
When the state judge allowed the case to move forward, granting Beard legal standing, it was over the protests of TCEQ and Port Arthur LNG. At the September public meeting, Niermann said he โwould not look to this case as any sort of precedentโ for establishing a personโs right to a contested case hearing in the future. In other words, he implied the fact Beard was even granted a hearing was a fluke.
โIndustry has been attacking standing for a long time,โ Cox, with the Environmental Integrity Project, said. โIf they can keep people out of the fight in the first place, they donโt have to put on a case on the merits and argue about anything, if they can claim that people donโt have the right to be there in the first place,โ he said.
Beard and his lawyers are still exploring avenues to continue litigating the case and reducing Port Arthur LNGโs permitted emissions. In October, they filed an appeal in federal court.
โWe are going to continue pursuing justice,โ Beard said. โWhatโs the difference between drinking a gallon of poison or breathing poisonous air one breath at a time?โ
Disclosure: Exxon Mobil Corp. and the University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribuneโs journalism. Find a complete list of them here.
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