Texas A&M Law Hosts Second Annual Environmental Justice Conference

Studies show that communities of color and low-income communities are all-to-often disproportionately impacted by poor air quality and air pollution. Accordingly, air pollution is a clear environmental justice issue.

On March 25, 202, Texas A&M University School of Law held its second annual Environmental Justice Conference, which focused on the intersection between air pollution and environmental justice. Attorneys Adam Friedman, Sarah Utley, and Josh Trenary discussed how state, federal, and industry action commingle to impact communities throughout the United States. Sarah Utley is an Assistant County Attorney at the Harris County Attorney’s Office. Adam Friedman is a partner at McElroy, Sullivan, Miller & Weber, L.L.P, practicing in water, environmental, and energy law. Josh Trenary works as the executive director for the Indiana Pork Producers Association, with his practice covering environmental and agricultural law.

One particular danger associated with these concrete batch plants is the permitting of crystalline silica emissions. Crystalline silica is carcinogenic, and the facilities’ emission of this pollutant close to residential neighborhoods poses a threat to the Texans who live in the vicinity. Friedman noted that crystalline silica is not covered by the Texas Commission on Environmental Quality’s pollutant permitting process. He further stated that updated modeling failed to assess what levels of pollution and distance from pollution would be safe for human health. When speaking about the modeling—or lack thereof— Friedman remarked, “If you don’t model the dangerous pollutants, then you don’t really have the assurances that it’s safe.”

In his presentation, Friedman described a project in which he sought to prevent the permitting of Bosque Solutions LLC’s Permanent Concrete Batch Plant in Houston. He underscored the importance of having a good expert available when challenging permits and emissions, as well as the support and engagement of the local community that would be impacted by the facility. He also explained that to amass the funds necessary to challenge the permit, the community, composed primarily of lower-income residents, relied heavily on fundraising and grassroots organizing. “It’s an unfortunate byproduct of this practice of law that it often takes that community, grassroots fundraising effort to challenge. . . these projects. . . because they’re often found in lower-income and marginalized communities,” Friedman explained.  

Utley also addressed concrete batch facilities in her contribution to the program and highlighted the concerns that the Harris County Attorney’s Office had with the impact of such facilities. She noted that the Houston area’s lack of zoning ordinances poses an acute challenge for responding to proposed batch plants. Unlike individual air permits, which the county can challenge on legal or factual bases, challenges to standard concrete batch permits require that the challenging party reside within 440 yards of the facility. This effectively prevents the county from taking legal action in response to a standard permit application. As a result, Utley explained that the burden of addressing air pollution concerns shifts to the enforcement process, and these facilities generally have poor compliance records. “In 2020 we did 122 investigations, and we issued 144 violations,” Utley said.

Utley stated that TCEQ opened up the concrete batch permitting process for comment in 2021, the first time the agency has done so since 2012, but noted that the notice for comment was not released in Spanish. This was especially problematic because many of these facilities are located in Spanish-speaking areas and with Spanish-speaking operators.

During the second half of the conference, Trenary discussed the intersection of environmental justice and agricultural law. A Concentrated Animal Feeding Operation (CAFO) is the federal standard for the amount of livestock allowed at a confined livestock barn of a certain size. In Trenary’s home state of Indiana, livestock is similarly regulated under Confined Feeding Operations, and the state limits operations beneath the federal threshold. Much like the issues raised during the panel, challenges to livestock operations often rely heavily on zoning. Trenary noted that “There’s a lot of give and take with where to site a barn and how to challenge it.”

Trenary noted that current trends in farming indicate a decrease in small farms and an increase in larger operations. As a result, he said that efficiency and specialization have increased for the industry, and the environmental footprint of the industry has decreased. “One pound of pork is using 25% less water, producing 20% less carbon, using 7% less energy. . .” as well as taking up less land for farming, Trenary explained.

Trenary next discussed his first exposure to environmental justice, which occurred through an EPA grant program that was designed to educate residents on how to challenge CAFO sitings. He explained that the seven counties impacted by the grant were located primarily in lower-income areas, and emphasized the importance of industry listening to and predicting potential conflict with the communities in which their farms are located. “In an environmental justice context, there are better ways to challenge our facilities than air. . . I don’t want to lose sight of. . . a vulnerable community that’s worried about livestock farms.” One of the biggest considerations in challenging CAFO sitings, Trenary said, is whether a state permit was appealed in front of an administrative law judge. If a permit was appealed but the decision to issue the permit was upheld, Trenary’s clients would often continue to watch the area and its future developments. The subsequent impact on the community after permit approval is also important to see how these concerned communities develop around and in response to the new facility. In doing so, Trenary explained, the responses of the concerned community can help influence future siting decisions.

Trenary also noted that zoning ordinances and the threat of litigation and appeals can tremendously shape ag development in a community. Dillon’s Rule and its contrasting rule, the Home Rule, can largely impact the varied responses to barn sitings across different states. In Indiana, the state does not regulate odor but does regulate air emissions. “This raises questions about what the role of the county should be,” he said. Much like the challenges seen in Texas, general and individual permits can greatly impact the approval of facilities and sites. In contrast, many of the farmers and farming entities involved in commercial farming are more risk-averse and responsive than some of the other regulated industries. Trenary asserted that “the more that the permit from the state level is specific to the site, the more that the zoning decisions and the siting decisions that have to be made at a county level [will give] the county more confidence from an environmental standpoint.” This creates a preference for specific permits rather than general permits due to their more tailored focus.

In addition, Trenary said that the EPA does not have emission indicators for livestock, which can be extremely complex to set up due to their sensitivity to a variety of environmental factors.  However, Trenary said that “it’s better to make sure that these barns can live in harmony with their communities and not cause a stir. . . . Our folks are living out in those communities, too.”

Marginalized communities face a disproportionate impact from air emissions and pollutants in Texas and throughout the United States. This year’s Environmental Justice sought to highlight some of these challenges and concerns, and to explore tools and opportunities to pursue some measure of environmental justice.

The Energy, Environmental & Natural Resources Systems Law Program at Texas A&M University School of Law, along with its law student organization partners—the Energy and Natural Resources Group and the Agricultural Law Society—greatly thank the speakers for their time and insight into these critical issues.