The State of Texas squared off Friday afternoon against its largest county in a dispute over suing the nation’s largest oil company for environmental violations in a battle between Goliaths that will likely end up in appeals court no matter what the judge’s ruling — a ruling he said is likely by Jan. 31.
While the arguments tended to be technical—including a claim that the meaning of the law hinged on the use of present-tense singular words—it was part of an ongoing conflict between Harris County and the state government over the power of county government to enforce environmental laws.
After a fire and explosion at the ExxonMobil facility in Baytown July 31, the Harris County Attorney sued the company, alleging that it violated state laws against air and water pollution in connection with the incident.
Later, the Texas Attorney General filed a similar lawsuit. Both lawsuits seek to protect the public and the environment and prevent additional negative impact on the community. The state lawsuit also asks for penalties, something the county cannot do without state consent.
The state is asking the judge to dismiss the county’s lawsuit, claiming that it was made without proper authorization, which meant the county lacked standing to sue.
Current state law says that environmental enforcement actions can only be filed by counties if county commissioners approve a resolution authorizing the filing. The County Attorney filed the suit based on an April 30 Commissioners Court resolution authorizing the County Attorney to file environmental lawsuits.
The state is claiming that such authority can only be granted for a specific incident, not generally.
One important question this ruling will decide is where the lawsuit will be heard. The county lawsuit was filed in the 190th Judicial District Court in Houston, where the Friday hearing was. The state lawsuit was filed in Austin, in Travis County.
The location issue was at the heart of the first questions asked by Judge Beau A. Miller in the hearing.
“If I grant this, I am taking the people of Harris County out of this,” he said. The jury would not be from Harris County, the judge would not be elected by Harris County residents, and the Harris County Commissioners would not have input, he said.
Assistant Attorney General Katie Hobson, the lead attorney representing the state Friday, said that Harris County officials would have several opportunities to have a voice. They could file legal briefs, they could make comments and they could ask to intervene in the lawsuit.
“A voice is not a seat at the table,” Miller said.
Assistant Harris County Attorney Rock Owens, who heads the office’s environmental division, said that for many years the county has filed enforcement lawsuits in Harris County after accidents. However, after the ITC fire in Deer Park and the KMCO fire in Crosby in early 2019, the state filed lawsuits first, putting the cases in Travis County rather than Harris County.
That, he said, is what prompted commissioners to grant advance authority to the County Attorney to file suits quickly.
“The commissioners felt very seriously that they needed to be handling the cases here in Harris County if they could,” he said. “It was the commissioners’ intent to make sure Harris County had a seat at the table.”
Hobson countered that the Texas Commission on Environmental Quality is the primary enforcer of environmental laws in the state, and that the Attorney General acts on the commission’s behalf. The AG has discretion in where to file cases.
The tension between state and county attorneys was visible. Hobson said the case would be unnecessary if the county worked hand-in-hand with the state. Owens responded that the relationship has been strained since the county started taking a more active role in enforcing environmental law.
Judge Miller commented that the two sides were unable to play together in the same sandbox.
“I wish I could send you to mediation,” he said at one point. “Maybe I could send your bosses to mediation.”
Miller said the dispute had become a political issue.
He asked Hobson what was to prevent Owens from simply going downstairs to the county clerk’s office, withdrawing the county’s lawsuit and refiling with commissioners’ explicit permission.
Hobson first said nothing would prevent it. After consulting with other members of her team, though, she said she couldn’t speculate on hypotheticals and that the state might move to abate a county lawsuit filed after the state’s lawsuit.
Miller said, “We’re wasting time both for the state and the county.” He asked Hobson, “What’s the public policy benefit to your plea for jurisdiction?”
While ExxonMobil was not a party to Friday’s hearing, it had legal representation present.
While Miller reminded the ExxonMobil attorney early in the hearing that she was there simply as an observer, he later addressed some questions to her and asked for ExxonMobil to provide legal briefs on some of the issues raised.
Specifically, when Hobson said the county’s case could be thrown out on appeal since the county may be ruled to have lacked standing to sue, Miller asked for an opinion from ExxonMobil if it could waive the question of standing, and would it be willing to.
Also, he asked both ExxonMobil and the state to clarify their positions on if they would accept intervention by Harris County in the state’s lawsuit.
Those briefs are due by Jan. 24, he said, then the other parties can file replies by the 29th. Miller said he plans to make a ruling on the motion to dismiss the Harris County lawsuit by Jan. 31.