Whenever a company plans to release pollution into the environment, it needs a permit. In Texas, the Texas Commission on Environmental Quality is responsible for issuing those permits. Citizens are allowed to object, but critics say the TCEQ is unfairly dismissing objections using a made-up "1-mile rule," the Texas Tribune reports.
What's happening?
To file an objection against a pollution permit, Texas requires the person filing to be an "affected person" who will be more impacted by the pollution than the general public, the Texas Tribune explains.
Since at least 2010, the TCEQ has used the 1-mile rule to determine whether someone is an affected person, reasoning that pollution won't particularly impact anyone who lives more than a mile away from the pollution source.
Just one problem: According to the Texas Tribune, this supposed 1-mile rule is unofficial. It's not found in federal law, state law, or the TCEQ's governing documents, and didn't come from any official legal process. Even the TCEQ denies that it exists.
Nevertheless, Inside Climate News compiled a list of 15 TCEQ decisions that hinged on the 1-mile rule. While only 12% of objections filed with the commission come from within a 1-mile radius of the pollution source, 87% of the accepted objections came from that group, and the rest came from just outside of the range.
Why is the 1-mile rule a problem?
Lawyers in support of the 1-mile rule argue that it is "founded in common sense and experience," the Texas Tribune reveals.
However, the rule fails to acknowledge the reality that pollution can travel more than 1 mile, especially when the source is large, or the wind is strong, causing severe health consequences for those exposed.
Not only that, but the rule informally takes away many citizens' right to a judicial review of the TCEQ's decisions, the Texas Tribune says.
"This practice is arbitrary and unlawful," Erin Gaines, a lawyer with the nonprofit Earthjustice, told the Texas Tribune.
A petition filed with the Environmental Protection Agency in 2021 explains, as the Texas Tribune reports, "Participation in the contested case hearing process is a prerequisite to seeking judicial review of a TCEQ permitting decision." In Texas, contested case hearings are reserved for "affected persons" with complaints accepted by the TCEQ, so the 1-mile rule allegedly puts an illegal restriction on who can take the TCEQ to court about its decisions.
The result is many more people being exposed to dangerous, toxic pollution with no legal remedy.
What's being done to challenge this rule?
Diane Wilson is a Texas resident who has filed more than 100 objections with the TCEQ, most of which were dismissed. In 2022, she sued the TCEQ over its 1-mile policy. The first hearing in the case is set to take place this November.
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