Opinion issued August 29, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00332-CV
———————————
CITY OF HOUSTON, Appellant
V.
BCCA APPEAL GROUP, INC., Appellee
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Case No. 2008-09399
MEMORANDUM OPINION
The present dispute requires us to determine the constitutionality of a home-
rule city’s ordinance which purports to regulate air pollution within that city’s
borders. The BCCA1 Appeal Group, Inc. (the Group), a non-profit organization
whose members own and operate industrial facilities in the Houston area, brought
suit to enjoin enforcement of two air pollution control ordinances enacted by the
City of Houston (the City)—City of Houston Ordinance Nos. 2007-208 and 2008-
414 (collectively, the Ordinance). The Group asserts that the Ordinance is
preempted by state law. The parties filed cross-motions for summary judgment;
the trial court denied the City’s motion and granted the Group’s motion. We
reverse the trial court’s judgment and render judgment in favor of the City.
I. Background
The Group asserts that the Ordinance is preempted because it claims for the
City several powers the Legislature granted exclusively to the Texas Commission
on Environmental Quality (TCEQ) in the Texas Clean Air Act (TCAA) and the
provisions of the Texas Water Code (TWC) that govern enforcement of the TCAA.
According to the Group, the Ordinance conflicts with the TCAA, TWC, and
Article XI, Section 5 of the Texas Constitution which bars home-rule cities from
enacting any ordinance that is “inconsistent with the Constitution of the State, or of
the general laws enacted by the Legislature of this State.” TEX. CONST. art. XI,
§ 5(a). With that in mind, we will begin by discussing the relevant portions of the
Ordinance, TCAA, and TWC.
1
BCCA stands for “Business Coalition for Clean Air.”
2
a. Texas Clean Air Act and Texas Water Code
In 1967, the Texas Legislature enacted the TCAA which was intended to
safeguard the state’s air resources without compromising the economic
development of the state. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 443 (Tex. 1993). The TCAA also created an administrative agency which is
now known as the TCEQ and granted the agency the authority to promulgate
regulations to accomplish the TCAA’s goals, namely “to safeguard the state’s air
resources from pollution by controlling or abating air pollution and emissions of
air contaminants, consistent with the protection of public health, general welfare,
and physical property, including the esthetic enjoyment of air resources by the
public and the maintenance of adequate visibility.” 2 TEX. HEALTH & SAFETY CODE
ANN. § 382.002(a) (West 2010); see also Tex. Ass’n of Bus., 852 S.W.2d at 443.
TCEQ’s rules are codified in title 30 of the Administrative Code. Specifically, the
TCAA states that TCEQ shall administer the TCAA and accomplish the TCAA’s
purpose “through the control of air contaminants by all practical and economically
2
The agency that was initially created by the TCAA was the Texas Air Control
Board. In 1991, the Texas Air Control Board and Texas Water Commission
merged and became the Texas Natural Resources Conservation Commission
which was later renamed the TCEQ in 2001. See City of Carrollton v. Tex.
Comm’n on Envtl. Quality, 170 S.W.3d 204, 213 n.5 (Tex. App.—Austin 2005, no
pet.); United Copper Indus. v. Grissom, 17 S.W.3d 797, 804 n.5 (Tex. App.—
Austin 2000, pet. dism’d).
3
feasible methods.” See TEX. HEALTH & SAFETY CODE ANN. § 382.011(b) (West
2010).
The TCAA authorizes TCEQ to issue orders and make determinations as
necessary to carry out the TCAA’s purposes. TEX. HEALTH & SAFETY CODE ANN.
§ 382.023(a) (West 2010). If it appears that the TCAA or a TCEQ rule, order, or
determination is being violated, TCEQ may, inter alia, “take any other action
authorized by [the TCAA] as the facts may warrant.” Id. § 382.023(b) (West
2010); see also 30 TEX. ADMIN. CODE § 70.5 (stating TCEQ may resolve
enforcement matters “informally without a contested case proceeding in
appropriate circumstances”; stating other remedies available to TCEQ in
enforcement actions include, inter alia, “issuance of administrative orders with or
without penalties; referrals to the Texas Attorney General’s Office for civil judicial
action; referrals to the Environmental Protection Agency for civil judicial, or
administrative action; referrals for criminal action; or permit, license, registration,
or certificate revocation or suspension”).
Under the TCAA, TCEQ has the sole authority to authorize air emissions,
which includes the authority to issue and enforce permits for sources of air
contaminants. See TEX. HEALTH & SAFETY CODE ANN. § 382.051 (West 2010)
(authorizing TCEQ to issue and administer pre-construction permits, operating
permits, special, general and standard permits, and “other permits as necessary”);
4
see also State v. Associated Metals & Minerals Corp., 635 S.W.2d 407, 410 (Tex.
1982) (holding that trial court lacked authority to modify air permit since TCEQ’s
predecessor agency had “sole authority” to grant or deny permits and set emission
levels). The TCAA also requires TCEQ to adopt, charge, and collect certain fees
associated with its regulatory program. See, e.g., TEX. HEALTH & SAFETY CODE
ANN. § 382.062(a) (West 2010) (requiring TCEQ to adopt, charge, and collect
permit and inspection application fees); id. at § 382.0621(a) (West 2010) (requiring
TCEQ to adopt, charge, and collect annual operating permit fees).
Although TCEQ has primary responsibility for enforcing the state’s
environmental laws, see TEX. WATER CODE ANN. § 5.012 (West 2008), the TCAA
also acknowledges that home-rule cities have an important role to play with respect
to air quality regulation in the State. See TEX. HEALTH & SAFETY CODE ANN.
§ 382.113 (West 2010). Subchapter E of the TCAA expressly recognizes that “a
municipality has the powers and rights as are otherwise vested by law in the
municipality to . . . abate a nuisance; and . . . enact and enforce an ordinance for
the control and abatement of air pollution.” Id. at § 382.113(a). Such ordinances,
however, must be “consistent with [the TCAA] and [TCEQ’s] rules and orders”
and cannot “make unlawful a condition or act approved or authorized under [the
TCAA] or [TCEQ’s] rules or orders.” Id. at § 382.113(b).
In addition to the right to enact and enforce its own air-pollution abatement
5
programs, home-rule cities, as well as other local governments, have the right to
enforce state-level air-quality rules and regulations. Specifically, the TCAA
provides that local governments may enter and inspect property to determine
compliance with the TCAA or a TCEQ rule, variance or order, and requires them
to share the results of their inspections with TCEQ when requested. See TEX.
HEALTH & SAFETY CODE ANN. § 382.111 (West 2010). Local governments may
also contract with the TCEQ or with one another to accomplish air quality
management, inspection, and enforcement functions and local governments may
receive a share of the fees that TCEQ collects to fund their local air-quality
inspection programs. See id. at §§ 382.0622(d), .115(1) (West 2010). Local
governments may also make recommendations to the TCEQ and petition the
agency for a rulemaking. Id. at § 382.112 (West 2010).
Local governments also have the right to sue in civil district court for civil
penalties or injunctive relief for violations of the TCAA. TEX. WATER CODE ANN.
§ 7.351 (West 2008). Any civil suits initiated by a local government under this
subchapter of the TWC, however, must be authorized by the local government’s
governing body and TCEQ must be joined as a party. Id. at §§ 7.352, .353 (West
2008). Any civil penalties recovered by the municipality must be shared equally
with the state. Id. at § 7.107 (West 2008).
In addition to the provision in the TWC authorizing local governments and
6
other parties to enforce the TCAA by civil suits, chapter 7 sets forth additional
provisions governing enforcement of the TCAA. See id. at §§ 7.001, .0025–.005,
.031–.051, .0525–.066, .068–.183, .184–.186, .188–.255, .301, .303–.358 (West
2008), §§ .002, .006, .052, .067, .1831, .187, .256, .320 (West Supp. 2012).
Specifically, the TWC states that the TCEQ may enforce the TCAA through a
number of methods including, inter alia, assessing administrative penalties,
directing corrective action, revoking permits, and requesting the Attorney
General’s Office to file a civil suit seeking injunctive relief and/or civil penalties.
See id. at §§ 7.032 (authorizing suits for injunctive relief), 7.051 (authorizing
assessment of administrative penalties by TCEQ), 7.073 (authorizing assessment of
administrative penalties and order of corrective action), 7.105 (authorizing attorney
general to file civil suits seeking civil penalties and/or injunctive relief), &
7.302(a)(4), (b) (authorizing revocation or suspension of permits issued pursuant to
TCAA).
b. City’s Air Quality Ordinance
The City enacted an air-quality ordinance in 1992 which, until 2007, only
regulated air pollution from facilities that were not already regulated by the State,
i.e., sources of emissions not subject to regulation and licensure by the TCEQ.
See generally HOUS., TEX., CODE OF ORDINANCES, ch. 21, art. VI (2013). Prior to
2007, the City contracted with TCEQ and cooperated with the agency to ensure
7
that sources of emissions located within the City’s borders were in compliance
with state law by inspecting and referring cases for enforcement action to the
TCEQ. See TEX. HEALTH & SAFETY CODE ANN. § 382.115(1) (authorizing local
governments to enter into cooperative agreements with TCEQ or with one another
to provide for performance of air quality management, inspection, and enforcement
functions). After fiscal year 2005, however, the City chose not to renew its
contractual relationship with the agency.
Instead, in 2007, the City amended the Ordinance and established its own air
quality regulatory compliance program, along with a new fee schedule to fund the
program. HOUS., TEX., ORDINANCE 2007-208 (Feb. 14, 2007) (amending Chapter
21 of Code of Ordinances). The 2007 amendment expanded the Ordinance’s scope
to include the regulation of facilities and sources subject to regulation by TCEQ.
The Ordinance, as amended in 2007, also made it “unlawful for any person to
operate or cause to be operated any facility” inside the City’s borders unless the
facility was registered with the City. ORD. at § 21-162(a). Under the Ordinance,
such City-issued registrations would only be “issued by the health officer” after the
facility tendered “the applicable fee.” Id. at § 21-163. Such violations are
punishable by a fine of not less than $250 but not more than $1,000 for first-time
offenders (and a fine of not less than $1,000 but not more than $2,000 for repeat
offenders).” Id. at § 21-162(c). Citations for such violations, “like all city tickets,
8
are enforced in municipal court.” See generally City’s “Draft FAQ About the
Changes to the City of Houston Air Pollution Abatement Program and Registration
Ordinance.”
Prior to 2007, the Ordinance authorized the City’s health officers to “carry
out a regulatory compliance program to determine whether registered facilities are
in compliance with all applicable state and federal air pollution control laws and
regulations.” HOUS., TEX., ORDINANCE 92-180 § 21-164 (Feb. 2, 1992). Section
21-164 was amended in 2007. Rather than broadly referring to “air pollution
control laws and regulations,” the City opted to incorporate specific Administrative
Code provisions by reference. See ORD. 2007-208 § 21-164. Under the version of
section 21-164 enacted in 2007, a laundry list of state-level air pollution control
laws and regulations implemented by the TCEQ are incorporated “as if written
word for word in this section, including appendices and other matters promulgated
as part of the state rules.” See id. at § 21-164(a). Section 21-164, as amended in
2007, further states that such air pollution control laws and regulations are
incorporated by reference “as they currently are and as they may be changed from
time to time.” See id. The Ordinance directs the City’s health officers to “carry
out a regulatory compliance program to determine whether registered facilities are
in compliance with all applicable state and federal air pollution control laws and
9
regulations” and that “[c]ivil, administrative and criminal sanctions imposed by
law shall be pursued where violations are determined to exist.” Id. at § 21-164(b).
The Group filed suit in 2007 asking the trial court to declare the Ordinance
unconstitutional and to enjoin the City from enforcing it. While the Group’s suit
was pending, the City amended the Ordinance in 2008 and made it “an affirmative
defense to prosecution [under the Ordinance] . . . that the prosecuted condition or
activity has been: (1) Approved or authorized by the [TCAA], state rule or state
order; and (2) That the facility is in compliance with any such approval or
authorization under the [TCAA], state rule or state order.” HOUS., TEX.,
ORDINANCE 2008-414 § 21-164(d) (May 7, 2008). The 2008 amendments also
removed the word “criminal” (without removing the references to prosecution),
and capped the fees per location at the highest four fees for the facilities at that
location.
c. Cross-motions for Traditional Summary Judgment
Both the City and the Group filed cross-motions for summary judgment. In
its motion, the City argued that it was entitled to summary judgment because the
Group did not have standing to bring the declaratory judgment action and, even if
the Group did have standing, the Ordinance was a legitimate exercise of the City’s
10
police powers.3 According to the City, its right to regulate air pollution within its
borders was not limited by any state law, and in fact, the Ordinance was consistent
with applicable state law and in compliance with the Texas Constitution.
In its motion for summary judgment, the Group argued that it had standing
to bring the declaratory judgment action and was entitled to have the Ordinance
declared invalid and the City enjoined from enforcing the Ordinance as a matter of
law. The Group argued that the TCAA created a comprehensive regulatory
scheme which gave the TCEQ the exclusive authority to issue permits, set
emission ceilings, assess fees, and otherwise regulate the state’s air quality. It also
set forth in express terms the manner in which local governments, including home-
rule cities, could exercise enforcement authority with respect to the regulation of
air pollution (e.g., through cooperative agreements with either TCEQ or other local
governments, by bringing a civil suit in district court in which TCEQ was named
as a necessary party, by enacting and enforcing ordinances for the control and
abatement of air pollution that are not inconsistent with the TCAA or TCEQ’s
rules or orders).
According to the Group, the Ordinance, which created a “duplicative and
inconsistent regulatory scheme,” was an invalid attempt by the City to usurp
3
Although the City initially disputed the Group’s standing to bring this suit and
sought summary judgment on that basis, the trial court held that the Group had
organizational standing. The City is not appealing this portion of the trial court’s
order.
11
TCEQ’s authority to regulate the state’s air quality and was inconsistent with state
law. For example, the Group argued that the provisions of the Ordinance requiring
facilities to register with, and pay fees to, the City were inconsistent with the
TCAA and made illegal conduct that was otherwise legal under state law. The
Group further argued that the Ordinance’s wholesale incorporation by reference
with respect to specific state-level air pollution control laws as set forth in the
Administrative Code “as they currently are and as they may be changed from time
to time,” see ORD. § 21-164, constituted an impermissible delegation of the City’s
authority.
After extensive briefing and argument on the parties’ cross-motions for
traditional summary judgment, the trial court ruled in an eleven-page order that the
Ordinance was an invalid exercise of municipal power because it was inconsistent
with state law. The final judgment issued on March 31, 2011, granted the Group’s
motion for summary judgment, denied the City’s motion, declared the Ordinance’s
registration program, fees, and enforcement procedures to be unenforceable, and
enjoined the City from enforcing the Ordinance.
The City is appealing.
II. Standard of Review
Traditional summary judgment is proper only when the movant establishes
that there is no genuine issue of material fact and the movant is entitled to
12
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Browning v. Prostok, 165
S.W.3d 336, 344 (Tex. 2005). When we review cross-motions for summary
judgment, we consider both motions de novo and render the judgment that the trial
court should have rendered. See Tex. Mun. Power Agency v. Pub. Util. Comm’n of
Tex., 253 S.W.3d 184, 192 (Tex. 2007).
We review de novo the trial court’s ruling on the validity of an ordinance
and we consider all the circumstances and determine as a matter of law whether the
legislation is invalidated by a relevant statute or constitutional provision. Quick v.
City of Austin, 7 S.W.3d 109, 116 (Tex. 1998) (citing City of Brookside Village v.
Comeau, 633 S.W.2d 790, 793 (Tex. 1982)). In doing so, we presume that the
ordinance is valid, and hold the challenging party to its “extraordinary burden” to
establish that the ordinance is invalid. See City of College Station v. Turtle Rock
Corp., 680 S.W.2d 802, 805 (Tex. 1984); Comeau, 633 S.W.2d at 792–93. An
ordinance is a valid exercise of a city’s police power so long as the regulation was
adopted to accomplish a legitimate goal, that is, it must be “substantially related”
to the health, safety, or general welfare of the people. See Turtle Rock Corp., 680
S.W.2d at 805.
a. Powers of Home Rule Municipality
Home-rule cities, such as the City, derive their power from article XI,
section 5 of the Texas Constitution. See TEX. CONST. art. XI, § 5; TEX. LOCAL
13
GOV’T CODE ANN. § 51.072 (West 2008); Lower Colorado River Auth. v. City of
San Marcos, 523 S.W.2d 641, 643 (Tex. 1975) (citing Glass v. Smith, 244 S.W.2d
645, 649 (Tex. 1951)). Therefore, a home-rule city looks to the Legislature not for
grants of authority, but for limitations on their powers. City of San Marcos, 523
S.W.2d at 643. The Legislature may limit the power of home-rule cities either
expressly or by implication, so long as those limitations appear with “unmistakable
clarity.” Id. at 645 (citing City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex.
1964)).
When a home-rule city ordinance appears to be in conflict with a state
statute, our duty is to reconcile the two “if any fair and reasonable construction of
the apparently conflicting enactments exist[s] and if that construction will leave
both enactments in effect.” Int’l Ass’n of Fire Fighters, Local 1173 v. City of
Baytown, 837 S.W.2d 783, 787 (Tex. App.—Houston [1st Dist.] 1992, pet. denied)
(citing City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202, 206 (1927)). If it is
not possible to reconcile the two enactments, the state statute trumps the city
ordinance. Dall. Merchant’s and Concessionaire’s Ass’n v. City of Dall., 852
S.W.2d 489, 491 (Tex. 1993) (home-rule city’s ordinance that attempts to regulate
subject matter preempted by state statute unenforceable to extent it conflicts with
statute).
14
b. Principles of Statutory Construction
Questions of statutory interpretation are questions of law which we review
de novo. City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009). Under the
well-settled principles of statutory construction, we begin with the statutory
language itself. See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Our
primary goal is to give effect to the Legislature’s intent, and we turn first to the
plain meaning of the words and terms chosen. See id.; Owens & Minor, Inc. v.
Ansell Healthcare Prods., Inc., 251 S.W.3d 481, 483 (Tex. 2008) (citation omitted)
(“[I]t is a fair assumption that the Legislature tries to say what it means, and
therefore the words it chooses should be the surest guide to legislative intent.”).
We presume that every word in a statute was chosen by the Legislature for a
purpose. TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.
2011).
If the statutory language is clear and unambiguous, we interpret its words
according to their plain and common meaning unless that interpretation would lead
to absurd results. Id. When a statute’s language is unambiguous, it is
inappropriate to resort to rules of construction or extrinsic aids. City of Rockwall v.
Hughes, 246 S.W.3d 621, 626 (Tex. 2008); Fitzgerald v. Advanced Spine Fixation
Sys., Inc., 996 S.W.2d 864, 865–66 (Tex. 1999). The judiciary’s role “is not to
second-guess the policy choices that inform our statutes or to weigh the
15
effectiveness of their results; rather, our task is to interpret those statutes in a
manner that effectuates the Legislature’s intent.” F.F.P. Operating Partners, L.P.
v. Duenez, 237 S.W.3d 680, 690 (Tex. 2007) (quoting McIntyre v. Ramirez, 109
S.W.3d 741, 748 (Tex. 2003)). We use these same rules to construe municipal
ordinances. See Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d
424, 430 (Tex. 2002).
III. Analysis
The question before us is whether the TCAA or TWC preempts the City’s
authority to enact the Ordinance or if, instead, there is a reasonable construction
under which both these statutes and the Ordinance remain enforceable.
a. The City’s authority to regulate air pollution or enact air
pollution abatement programs is not preempted by state law.
If the Legislature decides to preempt a subject matter normally within a
home-rule city’s broad police powers (either expressly or by implication), it must
do so with “unmistakable clarity.” Dall. Merchant’s, 852 S.W.2d at 491; see also
State v. Chacon, 273 S.W.3d 375, 378 (Tex. App.—San Antonio 2008, no pet.).
i. Express Preemption
The Group argues that the TCAA gave the TCEQ the exclusive authority to
issue permits, set emission ceilings, assess fees, and otherwise regulate the state’s
air quality. Neither the TCAA nor the state constitution, however, contains
language expressly limiting a home-rule city’s power—or granting TCEQ
16
exclusive authority—to enact the type of regulations at issue here, i.e., air pollution
abatement programs. 4 On the contrary, the TCAA expressly and unambiguously
acknowledges the City’s right to enact and enforce its own air pollution abatement
program, subject to two previously mentioned limitations. See TEX. HEALTH &
SAFETY CODE ANN. § 382.113(a)(2), (b) (stating “a municipality has the powers
and rights . . . [to] enact and enforce an ordinance for the control and abatement of
air pollution, or any other ordinance, not inconsistent with [the TCAA] or
[TCEQ’s] rules or orders” and does not “make unlawful a condition or act
approved or authorized under [the TCAA] or [TCEQ’s] rules or orders.”) As such,
the TCAA does not expressly preempt the City’s power to regulate air pollution
within its borders.
ii. Preemption By Implication
The lack of an express preemption, however, does not end our analysis. We
must now determine whether the Ordinance is implicitly preempted by state law.
The Group argues that the Legislature can express its intention to preempt local
4
Had the legislature intended the state to be the exclusive regulator of air pollution
within the state’s borders, it certainly could have done so, and indeed, has done so
with respect to other areas of regulation. See, e.g., TEX. ALCO. BEV. CODE ANN.
§ 1.06 (West 2007) (“Unless otherwise specifically provided by the terms of this
code, the manufacture, sale, distribution, transportation, and possession of
alcoholic beverages shall be governed exclusively by this code.”); TEX. NAT. RES.
CODE ANN. § 133.085(c) (West 2011) (“The provisions [of the Quarry Safety Act]
supercede any other municipal ordinance or county regulation that seeks to
accomplish the same ends as set out herein.”).
17
regulation with “unmistakable clarity” by implementing a comprehensive
regulatory regime that regulates the specific details of a given subject-matter (i.e.,
by occupying the field of regulation with respect to the subject matter). Although
the TCAA is extensive in its scope and there is considerable overlap between the
Ordinance and the TCAA, the mere fact that the City is attempting to regulate the
same subject-matter as the State does not, in and of itself, mean that the legislature
intended to preempt such municipal regulation, much less with “unmistakable
clarity.” City of Richardson v. Responsible Dog Owners of Tex., 794 S.W.2d 17,
19 (Tex. 1990) (holding home-rule city’s comprehensive animal control ordinance
not preempted by state penal code provisions governing keeping of vicious dogs,
despite “small area of overlap”; stating that “the mere fact that the legislature has
enacted a law addressing a subject does not mean that the subject matter is
completely preempted”); see also Brooks v. State, 226 S.W.3d 607, 610–11 (Tex.
App.—Houston [1st Dist.] 2007, no pet.) (citation omitted) (“In the absence of
express limitations, there is nothing that prevents a city from enacting an ordinance
covering the same subject as state or federal regulations.”).
Generally, such ordinances are only void if they are inconsistent with state
law. See TEX. CONST. art. XI, § 5(a) (prohibiting home-rule cities from enacting
ordinances that “contain any provision inconsistent with the Constitution of the
State, or of the general laws enacted by the Legislature of this State”). With
18
respect to the TCAA, an ordinance that attempts to regulate the same subject
matter as the TCAA is valid so long as it (1) is not inconsistent with the TCAA, the
TWC provisions enforcing the TCAA, or TCEQ’s rules, regulations, and orders,
and (2) does not make unlawful a condition or act approved or authorized under
the TCAA, TWC, or TCEQ’s rules, regulations, or orders. See TEX. HEALTH &
SAFETY CODE ANN. § 382.113(b).
iii. Discussion
The Ordinance requires facilities to register with the City by filing an
application and paying the applicable registration fee. See ORD. §§ 21-163, -166.
It is unlawful to operate a facility within the City’s boundaries that is not registered
with the City. See id. at § 21-162(a). Such violations are punishable by a fine of
not less than $250 but not more than $1,000 for first-time offenders (and a fine of
not less than $1,000 but not more than $2,000 for repeat offenders). Id. at § 21-
162(c). The Group argues that these sections are not only inconsistent with state
law, but also make unlawful a condition or act approved or authorized under state
law.
1. Registration (§ 21-163)
The Group argues that a facility’s lawful operation pursuant to TCEQ’s rules
and orders would nonetheless be unlawful under the Ordinance, if that facility
failed to register with the City or pay a registration fee. See ORD. §§ 21-162
19
(requiring registration; enforcement provision), 163 (governing issuance of
registration), & 166(a) (setting registration fees). Thus, according to the Group,
the entire registration program created by the ordinance is preempted. If the Group
is correct, then any concurrent regulatory scheme or permitting process by a
municipality would be preempted. This does not appear to be the prevailing law in
Texas.
Even when the Legislature gives an administrative agency extensive
authority to regulate a given subject-matter, a municipal ordinance that establishes
a parallel registration, licensing, and/or permitting program is not necessarily
preempted. See Unger v. State, 629 S.W.2d 811, 812–13 (Tex. App.—Fort Worth
1982, writ ref’d). In Unger, the Fort Worth Court of Appeals upheld the authority
of a home-rule city acting under its police power to both regulate and prohibit the
drilling of oil wells within the city limits, despite the fact that the Legislature had
given the Texas Railroad Commission (RRC) broad jurisdiction over all oil and
gas wells in Texas and authorized the RRC to, among other things, issue drilling
permits for such wells. See TEX. NAT. RES. CODE ANN. § 81.051 (a)(2) (West
2011) (granting RRC jurisdiction over all oil and gas wells in Texas); 16 TEX.
ADMIN. CODE § 3.5 (requiring RRC-issued drilling permits). The ordinance in
question made it unlawful to drill an oil or gas well within the city limits without a
city-issued drilling permit. Unger, 629 S.W.2d at 812. The court held that the
20
Legislature’s delegation of authority to the RRC to regulate the oil and gas
business in Texas—which includes the issuance of drilling permits—was not
inconsistent with municipal authority to also regulate in that area for its own
legitimate purpose. 5 See id. at 812–13.
Unger is “writ refused” and has the same precedential value as a Texas
Supreme Court opinion. Nevertheless, the Group cites to several opinions that pre-
date Unger for the general proposition that “field-preemption” is one way that the
Legislature can express its intention to preempt local regulation with
“unmistakable clarity.” See City of Beaumont, 291 S.W. at 205–06 (“In a word, as
long as the state does not, in its Constitution or by general statute, cover any field
of the activity of the cities of this state, any given city is at liberty to act for
itself.”); Prescott v. City of Borger, 158 S.W.2d 578, 581 (Tex. Civ. App.—
Amarillo 1942, writ ref’d) (“It is well established law in this state that, generally,
the governing authorities of cities are prohibited by the Constitution, Art. 11, Sec.
5 . . . from entering a field of legislation that has been occupied by general
legislative enactments.”).6 The oil and gas industry in Texas is heavily regulated
5
The same court upheld a similar ordinance the previous year on different grounds.
See Helton v. City of Burkburnett, 619 S.W.2d 23, 24 (Tex. App.—Fort Worth
1981, writ ref’d n.r.e.) (rejecting argument that city ordinance which required,
inter alia, permit to drill oil and gas well within city limits and assessed $250
permit fee, violated driller’s federal 14th Amendment rights).
6
The Group also relies upon City of Brookside Village v. Comeau, 633 S.W.2d 790,
796 (Tex. 1982) and City of Carrollton, 170 S.W.3d at 214—both of which are
21
and if the Legislature did not preempt the field with respect to the location of oil
and gas wells within the state’s borders, as it clearly did not, based upon Unger,7
then it certainly did not do so here with “unmistakable clarity.”
We note that the Texas Supreme Court recently held that another City
ordinance which required concrete-crushing facility operators to obtain a municipal
permit in order to operate within the city was preempted. See S. Crushed
Concrete, LLC v. City of Hous., 398 S.W.3d 676, 679 (Tex. 2013). That case,
however, is distinguishable. In Southern Crushed Concrete, the concrete-crushing
facility applied for, and was granted, a permit by TCEQ to operate at a given
location in the City. Id. at 677. The facility then applied to the City for a
municipal permit and was denied because the facility’s operations would violate
the City’s newly enacted land-use ordinance which imposed more restrictive
factually distinguishable. City of Carrollton, which—like the Attorney General’s
opinions the Group cites—is not binding authority, is also factually
distinguishable because the court in that case did not determine the validity of a
municipal ordinance, but rather whether the provisions in the Water Code that
spoke directly to the certificate cancellation process for all holders also applied to
a municipality that was also a certificate holder. 170 S.W.3d at 214. Comeau is
also factually distinguishable. In that case, the Supreme Court concluded that a
local ordinance governing the location of mobile homes was not inconsistent with,
and therefore, not preempted by, state and federal laws governing mobile home
construction, safety, and installation standards. 633 S.W.2d at 795–96. Although
the Court stated that the applicable state and federal statutes “preempted the field
as to construction, safety, and installation of mobile homes,” unlike here, those
statutes expressly prohibited local governments from adopting different standards.
7
See TEX. NAT. RES. CODE ANN. § 81.051 (a)(2) (West 2011) (granting Railroad
Commission jurisdiction over all oil and gas wells in Texas); 16 TEX. ADMIN.
CODE § 3.5 (requiring RRC-issued drilling permits).
22
locality restrictions than those imposed under the TCAA and TCEQ air quality
regulations and rules. Id. The Supreme Court rejected the City’s argument that the
ordinance did not abrogate TCEQ’s permit because the ordinance regulated land-
use, not air quality, noting that “[i]If the City’s contention were true, a city could
almost always circumvent section 382.113(b) and vitiate a [TCEQ] permit that it
opposes by merely passing an ordinance that purports to regulate something other
than air quality.” Id. at 679. The Court expressly limited its holding to such
circumstances by explaining that it was not deciding the issue of “whether a city
may more restrictively regulate an activity that the State also regulates.” Id.
Unlike in the Southern Crushed Concrete case, the City is not attempting to
hold an affected industry to a higher, more onerous standard than the one set forth
by the state. On the contrary, the Ordinance is the City’s attempt to create a
concurrent regulatory scheme or permitting process through which it will enforce
the state’s existing rules and regulations. In fact, the City acknowledges that its
decision to regulate and enforce the TCAA and TCEQ rules and regulations on its
own in this case—rather than in cooperation with TCEQ—is due to what it
perceives to be TCEQ’s lax enforcement efforts. According to the City, the Group
is only challenging the constitutionality of the Ordinance because the industry
“currently enjoys what it perceives to be a permissive regulatory approach from the
TCEQ” and it fears regulation by “a vigilant watch dog” (i.e., the City).
23
2. Fees and Enforcement (§§ 21-162 and 166)
The Group argues that because the City’s duplicative registration program is
preempted, the fees associated with it, which are also duplicative, are also invalid.
First, we note that although the TCAA requires TCEQ to adopt, charge, and
collect certain fees associated with its permitting process, the statute does not
prohibit a municipality that has adopted its own air-pollution abatement program—
which the TCAA recognizes it is authorized to do—from also charging and
collecting fees to fund the program. See, e.g., TEX. HEALTH & SAFETY CODE ANN.
§§ 382.062 (requiring TCEQ to adopt, charge, and collect fees for permit and
inspection applications), .0621 (requiring TCEQ to adopt, charge, and collect
annual operating permit fees), & .113(a) (recognizing municipality’s authority to
enact its own air-pollution abatement program). Thus, the TCAA does not
expressly preempt the imposition of such registration fees.
Second, we note that a home-rule city’s authority to enact ordinances under
its police power carries with it the corresponding right to impose fees to fund and
implement such ordinances; such fees are presumed valid if they are reasonably
associated with the cost of administering the ordinance. See City of Hous. v.
Harris Cnty. Outdoor Adver. Assoc., 879 S.W.2d 322, 326 (Tex. App.—[14th
Dist.] writ denied) (stating statutes or ordinances imposing fees under home-rule
city’s police power to regulate are prima facie valid and presumed reasonable);
24
City of Amarillo v. Maddox, 297 S.W.2d 750, 752 (Tex. Civ. App.—Amarillo
1956, no writ). The Group does not contend that the registration fees imposed
under section 21-166 are not reasonably associated with the cost of administering
the ordinance. On the contrary, the Ordinance’s fee schedule as amended in 2007
and 2008 is consistent with the TCAA’s own fee schedule. Compare TEX. HEALTH
& SAFETY CODE ANN. § 382.062(d) (West 2010) (authorizing application, permit,
and inspection fees of no less than $25 or more than $75,000) with ORD. 2007-208
§ 21-166(a) (setting registration fees of $250 to $3,000). See also ORD. 2008-414
§ 21-166(b) (“Should more than one facility exist on any premises, then the total of
all applicable fees shall be payable up to a maximum of the equivalent of a fee for
the four facilities with the highest fees.”).
Section 21-162’s enforcement provision only pertains to violations of the
Ordinance (i.e., a facility’s failure to register with the City in violation of the
Ordinance) and, as such, is not preempted by state law. See ORD. § 21-162(a)
(stating that it is unlawful to operate facilities within City’s boundaries that are not
registered with City). Such violations are punishable by a fine of not less than
$250 but not more than $1,000 for first-time offenders (and a fine of not less than
$1,000 but not more than $2,000 for repeat offenders). Id. at § 21-162(c).
3. Enforcement and Incorporation of State Law
The Group also challenges the validity of section 21-164 which lists ten
25
sections of the Texas Administrative Code and purports to incorporate them by
reference, as if they were written word for word in the Ordinance. See id. at
§ 21-164(a). Section 21-164(c) makes it unlawful to operate any facility not in
compliance with any of the TCEQ rules listed in 21-164(a). A violation of section
21-164 is punishable by a fine between $250 and $1,000 for first-time offenders
and a fine of between $1,000 and $2,000 for repeat offenders. Id. at § 21-164(e).
“Each day that any violation under this section continues shall constitute a separate
offense.” Id. at § 21-164(f).
The City argues that since the Ordinance incorporates the enforcement
provisions of the TCAA, the Ordinance can only be inconsistent with the TCAA if
the TCAA were inconsistent with itself. In other words, an act can only violate
section 21-164(a) of the Ordinance if it also violates the TCAA. The Group
responds that, unlike the Ordinance, the TCAA and TWC give TCEQ broad
discretion when it comes to determining compliance with the TCAA and TCEQ
rules and orders. See TEX. HEALTH & SAFETY CODE ANN. §§ 382.023–.025, .0216
(West 2010), § .0215 (West Supp. 2012); TEX. WATER CODE ANN. § 5.127.
According to the Group, the City’s duplicative program—with its wholesale
incorporation of only parts of the TCEQ regulatory scheme—would render the
TCEQ’s discretionary actions and determinations ineffective inside the City’s
limits, subverting the express goals of the Legislature. However, as the City points
26
out, the Ordinance not only requires the City’s health officers to cooperate with
county, state, and federal agencies in the enforcement of the state and local laws,
but the 2008 amendments to the Ordinance state that it was “an affirmative defense
to prosecution [under the Ordinance] . . . that the prosecuted condition or activity
has been: (1) Approved or authorized by the [TCAA], state rule or state order; and
(2) That the facility is in compliance with any such approval or authorization under
the [TCAA], state rule or state order.” ORD. § 21-164(d); see also id. at
§§ 21-146(3),-164(b).
A plain reading of the Ordinance, as amended, demonstrates that it does not
subvert the Legislature’s goals by rendering the TCEQ’s discretionary actions and
determinations ineffective inside the City’s limits. On the contrary, the City
officers charged with enforcing the Ordinance are required to defer to the agency’s
decisions with respect to the lawfulness of a given air-contaminant emitter’s
actions. If conduct is not unlawful under state law, as determined by TCEQ, it is
not unlawful under the Ordinance.
The Group also argues that the Ordinance impermissibly empowers the City
to prosecute air-quality cases criminally, in municipal court, rather than by filing
suit in civil district court. Local governments have the right to sue in civil district
court for civil penalties or injunctive relief for violations of the TCAA, so long as
the TCEQ is joined as a party and an administrative penalty has not been paid to
27
TCEQ for the violation. TEX. WATER CODE. ANN. §§ 7.068, .351, .353. Any civil
penalties recovered by the municipality must be shared equally with the state. Id.
§ 7.107. The Group contends that the Ordinance, which (1) only allows the City to
prosecute violations of state law in municipal court under criminal rules rather than
in district court under civil rules, as required by TWC section 7.351, (2) does not
require joinder of the TCEQ as a “necessary and indispensable party” in its
enforcement actions under this section, and (3) does not require the City to share
any penalties it recovers with TCEQ, is inconsistent with state law.
The TCAA expressly states that municipalities retain the power to enact and
enforce their own ordinances to control and abate air pollution. See TEX. HEALTH
& SAFETY CODE ANN. § 382.113(a)(2). It does not limit where or how the
municipality may carry out its enforcement responsibilities. Correspondingly, the
TWC “does not exempt a person from complying with or being subject to other
law,” and, most importantly, its remedies are “cumulative of all other remedies.”
TEX. WATER CODE ANN. §§ 7.004, .005. Thus, the City has the authority to sue in
civil district court for civil penalties or injunctive relief for violations of the TCAA
pursuant to the TWC, but it is not prohibited from enforcing its own air-pollution
abatement ordinances through other means. See generally TEX. LOC. GOV’T CODE
ANN. § 54.001(a) (West 2008) (“The governing body of a municipality may
enforce each rule, ordinance, or police regulation of the municipality and may
28
punish a violation of a rule, ordinance, or police regulation.”); id. at § 54.012(1),
(2) (West 2008) (“A municipality may bring a civil action for the enforcement of
an ordinance . . . for the preservation of public safety . . . [or] relating to the
preservation of public health. . . .”).
As the party seeking to invalidate the Ordinance, the Group bore the burden
of showing that the Legislature intended to preempt the Ordinance with
“unmistakable clarity.” The TCAA, which expressly acknowledges the City’s
right to enact and enforce its own air-pollution abatement programs, does not
prohibit such cities from bringing air-pollution suits under their own ordinances.
Furthermore, although the TWC gives cities the power to enforce state-level
air-pollution requirements in civil district court, it expressly states that such
remedies are cumulative, and thus it does not prohibit cities from enforcing their
ordinances—whether they be in criminal or civil proceedings—in municipal court.
As such, neither the TWC nor TCAA appears to preempt the City’s power to
enforce its own Ordinance which incorporates state law by reference, with
“unmistakable clarity.”
Invoking the statutory-construction principle of expressio unius est exclusio
alterius—the mention of one thing impliedly excludes other things of the same
type—the Group maintains that the Legislature’s delineation of a specific method
for local governments to enforce state air-pollution rules and regulations implies its
29
intent to prohibit local governments from enforcing those rules through any other
process. This principle, however, is not an inflexible rule, but merely a tool for
ascertaining legislative intent. See Mid–Century Ins. Co. v. Kidd, 997 S.W.2d 265,
274 (Tex. 1999). More importantly, because the statute is unambiguous, we need
not resort to such rules of construction or other extrinsic aids.
b. The Ordinance’s Incorporation of State Agency Rules Does Not
Constitute an Impermissible Delegation of City’s Power.
Section 21-163(a) lists ten sections of the Administrative Code and states that
these “air pollution control laws as they currently are and as they may be changed
from time to time, are hereby incorporated as if written word for word in this
section, including appendices and other matters promulgated as part of the state
rules.” See ORD. § 21-163.
The Group argues that, even if this section of the Ordinance is not preempted,
the Ordinance nevertheless fails because it impermissibly delegates power given to
the City under Article XI, Section 5 of the Texas Constitution to TCEQ by
incorporating by reference specific rules promulgated by TCEQ and codified in the
Administrative Code that implement the TWA and TCAA. See ORD. § 21-163(a).
The Group argues that such a delegation of legislative power violates the Texas
Constitution’s separation of powers clause which states:
The powers of the Government of the State of Texas shall be divided
into three distinct departments, each of which shall be confided to a
30
separate body of magistracy, to wit: Those which are Legislative to
one; those which are Executive to another, and those which are
Judicial to another; and no person, or collection of persons, being of
one of these departments, shall exercise any power properly attached
to either of the others, except in the instances herein expressly
permitted.
TEX. CONST. art. II, § 1. The Group argues that the City cannot delegate to any
third party—even the TCEQ—the power to make unilateral changes to the City’s
Code of Ordinances without any action on the part of the city council. In the
seminal “nondelegation doctrine” case, Texas Boll Weevil Eradication Foundation,
Inc. v. Lewellen, the Texas Supreme Court cautioned that the doctrine “should be
used sparingly” and that courts should consider delegations of authority narrowly
to uphold their validity whenever possible. 952 S.W.2d 454, 475 (Tex. 1997).
The Group cites to Desoto Wildwood Development, Inc. v. City of Lewisville,
184 S.W.3d 814, 826 (Tex. App.—Fort Worth 2006, no pet.) and Whittington v.
City of Austin, 174 S.W.3d 889, 900 (Tex. App.—Austin 2005, pet. denied) for the
general proposition that a city may not delegate the transaction of city business
except by resolution or ordinance. These cases, however, are distinguishable
because the courts in both cases were deciding whether statements made by an
agent of the city were binding upon the city. Desoto Wildwood Dev., Inc., 184
S.W.3d at 826 (developer sued city for breach of contract; court held that city
attorney’s statements in pre-suit letter to developer were not binding on city
31
because there was no evidence that city attorney had been authorized by city
council to act for it on this matter); Whittington, 174 S.W.3d at 900 (holding city,
which could only act through its governing body, failed to meet its summary
judgment burden in condemnation case because statements in city’s petition and
other pleadings were not conclusive proof that city’s governing body—as opposed
to its attorneys and other agents—determined to condemn property for public use).
The Group also directs us to a 1998 opinion of the Austin Court of Appeals
which addresses the constitutionality of the Texas Legislature’s alleged delegation
of authority to a federal administrative agency. See Ex parte Elliott, 973 S.W.2d
737, 741 (Tex. App.—Austin 1998, pet. ref’d). Elliott is also distinguishable. In
that case, although the court questioned the constitutionality of a state statute that
attempted to adopt future laws, rules, or regulations of the federal government, it
nevertheless side-stepped the question by concluding that the Texas Solid Waste
Disposal Act’s incorporation of the EPA’s definition of “hazardous waste” in the
federal Solid Waste Disposal Act was not a delegation of authority in violation of
the Texas Constitution’s separation of powers clause, but rather an incorporation
by reference. Id. at 742–43.
Neither the Group nor the City has directed us to—and we have not found—
any cases addressing the constitutionality of a home-rule city’s ordinance that
expressly incorporates state agency rules, as they currently exist, and as they may
32
be amended in the future. The Court of Criminal Appeals, however, has already
upheld the Legislature’s delegation of air-quality rulemaking and enforcement
authority to TCEQ. See State v. Rhine, 297 S.W.3d 301, 312–13 (Tex. Crim. App.
2008) (concluding that state legislature’s delegation of air-quality rulemaking and
enforcement authority to TCEQ, an executive agency, did not violate
non-delegation doctrine). TCEQ adopts rules (which are codified in Title 30 of the
Administrative Code) in order to implement those powers and duties delegated to it
by the Legislature. Here, the City is incorporating the air-pollution rules
promulgated pursuant to that lawful delegation, as amended, to ensure that the
Ordinance is consistent with state law on an ongoing basis. Otherwise, the city
council would have to amend the Ordinance each time a relevant portion of the
Administrative Code was amended, in order to maintain the consistency required
by the TCAA.
We conclude that the Group failed to show that the Legislature intended to
preempt the Ordinance with “unmistakable clarity,” and thus, failed to meet its
extraordinary burden to establish that the ordinance is invalid. See Turtle Rock
Corp., 680 S.W.2d at 805; Comeau, 633 S.W.2d at 792–93. We affirm the City’s
sole issue.
33
IV. Conclusion
We reverse the trial court’s judgment and render judgment in favor of the
City.
Jim Sharp
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
34