When deciding to issue an air quality permit, the Texas Clean Air Act requires the Texas Commission on Environmental Quality (TCEQ) to consider possible adverse effects on those attending any school within 3,000 feet of the facility. After TCEQ issued a permit, those opposing the permit appealed TCEQ’s decision. They claimed TCEQ did not specifically consider the possible adverse impacts of the emissions on those attending a school within 3,000 feet of the facility. In Boerne to Bergheim Coalition v. TCEQ, a divided Texas Court of Appeals affirmed TCEQ’s decision to issue the permit.
Protectiveness Review at the Facility’s Property Line
TCEQ argued, and the majority of the Court agreed, that its protectiveness review of the permit application focused on risks at the facility’s property line. By determining the permit was adequately protective “at or before the property line, even of vulnerable members of the population,” TCEQ and the Court determined TCEQ met its obligation to consider possible adverse risks to those attending a school within 3,000 feet of the facility.
Dissent Would Require Particular Consideration of Risks at the School
The dissent argued that the plain language of the Clean Air Act prohibits TCEQ from using “inference” to satisfy the obligation to consider possible adverse effects at the school and that TCEQ should not have issued the permit without a particular consideration of those risks.
To see the majority opinion https://search.txcourts.gov
To see the dissent https://search.txcourts.gov