It’s no secret Houston has pollution, but it is usually associated with petrochemical plants along the Houston Ship Channel or in nearby Texas City. However, a sweeping new City of Houston air permit ordinance creates a criminal offense punishable by a fine up to $2,000 per day for even the smallest businesses that fail to register with the City. On February 15, a coalition of businesses filed a lawsuit challenging the ordinance, alleging that it is preempted by state and federal law.
For example, all dry cleaners must now register with the City of Houston. Already, some dry cleaners must obtain both federal and state environmental permits, but state law sensibly exempts dry cleaners with “equipment used exclusively for steam or dry cleaning of fabrics, plastics, rubber, wood or vehicle engines or drive trains” and that emit less than 25 tons of pollutants per year. Federal permits also only cover the largest polluters. In contrast, Houston’s new ordinance takes every mom-and-pop shop to the cleaners for a permit fee of up to $250.
The Houston ordinance also covers every used car lot and automotive body repair shop, even if their emissions are nominal. Moreover, leading environmental lawyers say the ordinance requires many restaurants and machine shops to obtain permits because they fall under the ordinance’s definition of “facility” if they emit at least one ton of “contaminants” in a year, though “contaminants” is remarkably not defined in the ordinance. The registration fee of up to $3,000 still applies even if the “contaminants” are properly disposed of pursuant to local, state and federal law.
Business owners who fail to pay the fine of up to $2,000 per day for not registering could have a warrant issued for their arrest. What makes this new ordinance especially troubling is that it subjects many businesses to two or even three different levels of government regulation, and it covers thousands of small businesses that comply with environmental laws and do not account for a meaningful share of pollution.
– Marc Levin