The “1-mile rule”: Texas’ unwritten, arbitrary policy protects big polluters from citizen complaints

Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.

---

PORT LAVACA — On a rugged stretch of the Gulf Coast in Texas, environmental groups called foul in 2020 when an oil company sought pollution permits to expand its export terminal beside Lavaca Bay.

Led by a coalition of local shrimpers and oystermen, the groups produced an analysis alleging that the company, Max Midstream, underrepresented expected emissions in order to avoid a more rigorous permitting process and stricter pollution control requirements.

In its response, Max Midstream did not respond to those allegations. Instead, it cited what it characterized as the “quintessential one-mile test” by Texas’ environmental regulator, the Texas Commission on Environmental Quality, to claim that the groups and citizens involved had no right to bring forth a challenge because they lived more than 1 mile from the Seahawk Oil Terminal.

“The well-established Commission precedent has been repeated again and again,” the lawyers wrote. “Based on the quintessential one-mile test relied upon by the Commission for decades, none of the Hearing Requests can be granted.”

The TCEQ agreed, rejecting all hearing requests and issued the permit as initially proposed.

But the agency says the 1-mile test cited by the company’s lawyers doesn’t exist.

“The Commission has never adopted a one-mile policy,” said TCEQ spokesperson Laura Lopez. “Instead, the Commission applies all factors set out in statute and rules.”

Indeed, the test is not codified in Texas law or TCEQ rules. Yet it appears consistently in TCEQ opinions going back at least 13 years as a means to restrict public challenges to air pollution permits. It has been cited repeatedly by industry lawyers and denounced by environmental advocates.

“This practice is arbitrary and unlawful,” said Erin Gaines, an Austin-based senior attorney with the nonprofit Earthjustice. “TCEQ’s practices prevent people from having a meaningful voice in the permitting process for polluting facilities in their community.”

U.S. law requires that states provide citizens with the opportunity to challenge pollution permits in federal court. The rules regarding who may bring forth challenges are laid out in Article III of the U.S. Constitution, which doesn’t say anything about a distance limit.

Dozens of Texas environmental groups have argued in petitions before the U.S. Environmental Protection Agency that TCEQ unlawfully restricts access to judicial review, including through the 1-mile rule, and litigants in the Max Midstream case have now challenged the use of the 1-mile rule in federal court and are awaiting a hearing set for this fall.

The TCEQ, which is responsible for implementing federal pollution laws in Texas, issued its blanket denial that the rule exists despite a list of more than 15 cases compiled by Inside Climate News that centered on the 1-mile standard. In some, it was explicitly cited by TCEQ itself, or by industry lawyers. In others, the 1-mile standard is depicted on maps produced by the TCEQ. In each case, the distance standard is the main or the only justification offered for granting or denying citizens’ hearing requests.

Last year the nonprofit Earthjustice reviewed 460 requests for air permit hearings between 2016 and 2021. It found that while requests from citizens living within 1 mile of a facility comprised 12% of the requests, they comprised 83% of the requests the agency granted; almost all of the remaining 17% of granted requests came from people who lived only slightly farther than 1 mile away.

“TCEQ’s actions speak for themselves,” Gaines said. “TCEQ routinely denies hearing requests from members of the public unless they own property within one mile of a facility.”

The 1-mile standard 

Texans who wish to challenge TCEQ permit decisions must file a request with the agency. Its executive director reviews those requests and recommends whether or not the agency’s three commissioners, all appointed by the Republican governor of Texas, should grant them.

To do that, the executive director assesses whether the challengers qualify as “affected persons” with legal standing to bring forth complaints. Texas’ administrative code considers an “affected person” anyone who will be “affected by the application” in a way that is not “common to members of the general public.”

When formulating recommendations, the TCEQ’s Lopez said, the executive director “considers many factors, only one of which relates to the location of the facility.”

However, a review of the agency’s recommendations shows that the distance standard is regularly the only factor used to recommend rejection of hearing requests.

It appears in writing as far back as 2010, when 36 people challenged a permit renewal for a gas processing plant in northeast Texas, mostly complaining about odorous hydrogen sulfide gas coming from the facility’s flares.

“The Executive Director has generally determined that hearing requestors who reside greater than one mile from the facility are not likely to be impacted differently than any other member of the general public,” wrote the executive director at the time, Mark Vickery, who is now a lobbyist for the Texas Association of Manufacturers. “For this permit application, the Executive Director’s staff has determined that no requestors are located within one mile of the proposed facility.”

The permit renewal in question was not eligible for a hearing anyway, Vickery wrote, because it posed no changes from its original form.

His recommendation: none of the requestors should be recognized as affected persons. The TCEQ commissioners agreed.

“All requests for a contested case hearing are hereby DENIED,” wrote then-TCEQ Chair Bryan Shaw, who is now a lobbyist for the Texas Oil and Gas Association.

“Rule of thumb”

By 2014, the rule was well known among lawyers for industrial developers. That year, 16 members of the Danevang Lutheran Church in rural Wharton County requested a hearing over plans to build a gas-fired power plant in their tiny town.

In written arguments to the TCEQ, lawyers for the plant developer, Indeck Wharton, wrote, “A key factor the Commission frequently uses as guidance on the distance issue is the one-mile ‘rule of thumb.’”

“While it is not an immutable rule, the Commission frequently uses it as a guide,” the lawyers wrote. “It is not found in any statute, regulation or guidance document. Instead, it is founded in common sense and experience.”

TCEQ’s executive director at the time, Zak Covar, then invoked the 1-mile limit.

“Although the church is within one mile of the proposed facility, the request does not claim that any person resides at the church,” Covar wrote before the commissioners denied the church members’ request for a hearing and issued the permit as proposed.

In 2017, the TCEQ received 16 hearing requests — including from local residents, a Texas A&M University chemist and the Bryan Independent School District — over plans by Saint-Gobain Ceramics and Plastic Inc., to build a facility in Bryan.

“Because distance from the facility is key to the issue of whether there is a likely impact … the ED has identified an area of approximately one mile from the plant on the provided map,” wrote the executive director at the time, Richard Hyde.

Only Jane Long Intermediate School sat within the 1-mile radius. So TCEQ denied 15 hearing requests and granted the school district’s. Later, the school district withdrew its hearing request, citing a settlement agreement with Saint-Gobain, and TCEQ approved the permit application.

Two years later, when Annova LNG applied for permits to build a gas compressor and terminal on the Rio Grande delta, the nearby city of South Padre Island requested a hearing.

“The City stated that it is located more than one mile from the proposed terminal,” wrote the executive director at the time, Toby Baker. “Given the distance of the City from the proposed terminal, the ED recommends that the Commission find that the City is not an affected person.”

The commission agreed. Hearings were denied and a permit was issued.

Also in 2019, 36 residents requested hearings over permits for a concrete plant in Midlothian. The nearest of them, Sarah Ingram, lived 1.2 miles away and expressed concern about the health of her children when protesting the pollution permit.

“As none of the requestors reside within one mile of the plant’s emission point, they are not expected to experience any impacts different than those experienced by the general public,” Baker wrote.

Commissioners denied all requests and granted the permit as proposed.

In 2020, the nonprofit Lone Star Legal Aid filed a hearing request on behalf of Port Arthur resident John Beard over a developer’s plans to build an LNG export terminal.

According to the request, Beard regularly spends time on Pleasure Island, an 18-mile long recreational area in Port Arthur that runs as close as 900 feet from the proposed terminal site, in his capacity as the chair of the Pleasure Island Advisory Board.

In evaluating the request, the TCEQ only considered Beard’s home address, 4 miles away.

“Beard is not an affected person in his own right because he is located almost 4 miles from the facility,” wrote Baker, the executive director.

Lone Star Legal Aid filed an 11-page response, claiming “sites like Port Arthur LNG require the commission to consider a larger impact area than merely a mile,” and that “there are no distance restrictions imposed by law on who may be considered an affected person.”

TCEQ referred the question to the State Office of Administrative Hearings, where an administrative law judge agreed with Lone Star Legal Aid, writing, “the Applicant’s own data indicated that operation of the Proposed Facility will result in increased levels of [nitrogen oxides] and [fine particulate matter] at Mr. Beard’s residence.”

The administrative judge declared Beard an “affected person” and ordered a hearing over the pollution permit, which was held in February 2022. A second administrative judge also agreed with some of Lone Star Legal Aid’s complaints and recommended that the TCEQ require Port Arthur LNG to use better pollution control technology that would lower emissions of nitrogen oxides and carbon monoxide from the facility’s eight gas compressor turbines.

But the commissioners rejected most of the judges’ recommendations, calling them “economically unreasonable,” and approved the permit.

Meanwhile, TCEQ has granted hearing requests for requestors who live within a mile. In 2015, a group called Citizens Alliance for Fairness and Progress in Corpus Christi requested a hearing over air pollution permits for a planned expansion at a Citgo Refinery, and identified group members living a few blocks from the refinery.

Five years later, the executive director recommended granting the request “because the Alliance identifies as members residents [sic] that reside within one mile of the proposed facility.” Citgo withdrew its application before a hearing was held.

Legal complaints 

The country’s landmark environmental laws, the Clean Air and Clean Water acts, require states to provide opportunities for citizens to challenge pollution permits in court, a process known as judicial review, so a judge may evaluate if permits are consistent with federal standards.

Texas law provides such opportunities in its health and safety code, which reads: “A person affected by a ruling, order, decision, or other act of the [TCEQ]… may appeal the action by filing a petition in a district court.”

But multiple petitions to the EPA have alleged that Texas courts will only take up pollution permit complaints if the plaintiff has already been through a “contested case hearing” in administrative courts run by the state. Thus, by denying complainants’ requests for contested case hearings, often citing the 1-mile standard, the TCEQ controls their access to the courts.

“Participation in the contested case hearing process is a prerequisite to seeking judicial review of a TCEQ permitting decision,” reads one 38-page petition filed with the EPA in 2021 by 22 Texas environmental groups, focused on TCEQ’s water pollution management. “This empowers the TCEQ full discretion to deny any person the right of judicial review.”

Where federal law is concerned, requirements for access to judicial review are laid out in Article III of the U.S. Constitution. When states are charged with enforcing federal law, they may not impose limits beyond what the Constitution says, according to Gaines, the environmental attorney with Earthjustice in Texas.

In another 61-page petition filed last year with the EPA over TCEQ’s air pollution management, 11 Texas environmental groups said the contested case hearing process is absent from the sweeping pollution management plans that Texas, like all states, must submit to the EPA for approval.

That process, the petition says, includes “an arbitrary presumption that only those who own property or live within 1 mile of a proposed new or modified source are affected persons entitled to participate in a contested case hearing.”

“While not codified anywhere, this ‘rule of thumb’ is used regardless [of] how large the source is, the character of the emissions, the size of a facility’s stacks, or local meteorological conditions,” the petition said.

For that petition, an Earthjustice analysis showed that TCEQ granted only 12% of hearing requests between 2016 and 2021 — virtually all of them from people who lived within a mile or just slightly further from the applicant’s location.

Early this year, the EPA responded to the 2021 petition and said it was “informally investigating the allegations.”

“If proven to be true, the allegations outlined in the Petition are concerning,” Charles Maguire, the EPA deputy regional administrator, wrote in January.

The EPA can revoke a state’s authority to implement federal environmental law if the state regulator does not meet program requirements, Maguire wrote, including “failure to comply with the public participation requirements.”

A spokesperson for EPA Region 6, Jennah Durant, told Inside Climate News, “Because both petitions are still under review, EPA cannot provide further details at this time.”Durant declined requests for interviews with Region 6 administrator Earthea Nance and did not respond to questions about why only informal investigations were launched.

“If states start to deviate too much from national expectations about good implementation enforcement, which includes access to judicial review, the EPA can disapprove of the state’s plan,” said Cary Coglianese, director of the Penn Program on Regulation at the University of Pennsylvania. “It’s not a threat that’s used often and it can’t be used lightly.”

The case of Max Midstream

Diane Wilson filed her first hearing request with the TCEQ in 1989. Since then, she’s filed over a hundred more, she guesses. Only twice has she been recognized as an affected person, in 1998 and 2015.

“You ask any activist out there, any grassroots person, and they will tell you the same thing about TCEQ,” she said. “They’re in a big love affair with industry.”

Wilson, who leads an organization called San Antonio Bay Estuarine Waterkeeper, filed a challenge with the TCEQ when Max Midstream sought its permit to discharge airborne toxins including “hazardous air pollutants” such as hydrogen sulfide, carbon monoxide, nitrogen oxides, sulfur dioxide, volatile organic compounds and fine particulate matter, all known by the EPA to cause cancer and other serious health impacts.

Her organization, together with the Environmental Integrity Project and Texas Rio Grande Legal Aid, obtained data from Max Midstream’s permit application for the Seahawk Oil Terminal, analyzed it and concluded that the company underrepresented expected emissions in order to avoid a more rigorous review process for larger pollution sources.

That was when lawyers for Max Midstream cited the 1-mile rule.

“Based on consistent Commission precedent,” the lawyers wrote. “Only a property owner with an interest within one mile or slightly farther could possibly qualify for a contested case hearing.”

“It’s crazy they say that,” said Wilson, 75, as she sat in a bayside park in Port Lavaca. She pointed across the water to the sprawling Formosa Plastics Corp. A plant that stood prominently on the horizon, some 7 miles away — farther than Max Midstream. “I have been here and watched releases from that plant come clear across the bay. It’s like a fog come in.”

She submitted to the TCEQ analysis from Ranajit Sahu, a private environmental consultant in California who previously managed air quality programs and has a Ph.D. from the California Institute of Technology. He testified that harmful health impacts from the terminal could extend up to 5 miles away.

She also pointed to a 2009 study, led by a researcher at Texas A&M University and published in the journal Ecotoxicology, which linked clusters of genetic damage among cows in Calhoun County to industrial emissions up to 15 kilometers (9.3 miles) away. The largest cluster identified was 7 kilometers (4.3 miles) from the industrial facilities.

Nevertheless, in a 2022 opinion, Baker, the TCEQ executive director, sided with Max Midstream. Although Wilson had stated that she regularly spent time near the site of the proposed facility, her home was 16 miles away in the town of Seadrift.

Baker wrote: “Given the distance of Ms. Wilson’s residence relative to the location of the terminal, her health and safety would not be impacted in a manner different from the general public. Therefore, the ED recommends that the commission find that Diane Wilson is not an affected person.”

The director used the same reasoning to recommend rejection of hearing requests from five residents in Port Lavaca, about 4 miles across the water from the Seahawk terminal — a complex of huge storage tanks, marine loading docks and a pump station to move oil through a 100-mile pipeline.

They included Mauricio Blanco, a 51-year-old shrimper who said he spends nine hours per day on the water close to the proposed facility, even though he lives 6 miles away.

Also included: Curtis Miller, 61, owner of Miller’s Seafood, a national wholesaler of shrimp, fish and oysters started by his uncle in the 1960s, with its headquarters on the bayside in Port Lavaca.

In official comments, he told the TCEQ he would be harmed economically by increased air emissions because carbon dioxide from the terminal will contribute to acidification of bay waters, harming the oyster population he depends on.

Baker acknowledged Miller’s economic concerns, but concluded that “based on his location relative to the terminal, Mr. Miller’s health and safety would not be impacted in a manner different from the general public.”

Miller, a stout seaman covered in sunspots, said, “I don’t know what they base that on. I think we could be strongly affected here 4 or 5 miles away.”

From the docks at Port Lavaca, he pointed across the water at the Seahawk Terminal, the tallest feature on the horizon, looming large to the northeast.

“Does that look far away to you?” he said.

Then he pointed at a U.S. flag that was flapping to the southwest, directly from the plant to where he stood.

“Look which way the wind is blowing,” he said. “That’s our prevailing summer wind.”

In April 2022, the TCEQ commissioners agreed with the executive director and denied all hearing requests.

It issued Max Midstream a permit authorizing 61 different emissions points to release up to eight different air contaminants at a collective rate of hundreds of pounds per hour.

“Emissions from this facility must not cause or contribute to ‘air pollution’ as defined in Texas Health and Safety Code,” the permit said.

In June 2022, Wilson sued the TCEQ in federal court, alleging that it “acted arbitrarily and unreasonably in determining that Plaintiffs did not qualify as affected persons” based solely on distance.

“There are no distance restrictions imposed by law for this type of permit,” reads a legal brief Wilson filed for the case in July 2023.

She claimed TCEQ issued a pollution permit that was not compliant with state and federal law and asked the court to overturn it. A first hearing in the case is set for November.

Disclosure: Texas A&M University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

---

Join us for conversations that matter with newly announced speakers at the 2023 Texas Tribune Festival, in downtown Austin from Sept. 21-23.