New Texas appellate court alarms environmentalists

The announcement last month from Texas Gov. Greg Abbott was easy to overlook. The governor, always eager to promote what he calls his “conservative, business-friendly agenda,” had appointed three fellow Republicans to the new 15 ^th Court of Appeals, created by the Texas Legislature last year to decide civil cases brought by or against the state, along with high-stakes business litigation.

“These highly experienced individuals will serve a vital role in our state’s effort to ensure that the Texas Constitution and state statutes are applied uniformly throughout Texas and that businesses have a sophisticated and efficient process to resolve their disputes,” Abbott said in a news release .

Those words sound fairly benign, but Texas environmental leaders see an ulterior motive: a maneuver that allows industries and state regulators to bypass the 3rd Court of Appeals, whose six justices are, at the moment, all Democrats.

The 3rd Court’s justices are elected by residents of 24 Central Texas counties. The most populous is Travis County, which includes progressive-leaning Austin.

The 3rd Court traditionally has heard cases involving the Texas Commission on Environmental Quality (TCEQ), the state’s main enforcer of anti-pollution laws, and the Texas Railroad Commission, which, despite its name, regulates the oil and gas industry. Among other things, the court hears challenges to permits issued — or denied — to industries by the TCEQ. These permits stipulate how much of a pollutant a company can legally discharge into the air or water.

The 15th Court, which eventually will have five justices elected statewide in deeply red Texas, will absorb such cases from the 3rd Court on September 1.

“This is a way for Texas to create a very conservative court that I suspect the governor believes will be less friendly to environmental interests and probably very friendly to business,” said Ilan Levin, an Austin-based senior counsel with the Environmental Integrity Project , a research and advocacy organization. “The right wing does not like the fact that you’ve got a pretty blue area of the state that’s electing this [3rd] appellate court that all the TCEQ’s, Railroad Commission’s and other agencies’ administrative law cases run through.”

The 3rd Court has been receptive to environmentalists’ arguments. In 2022, for example, it sided with a district court that had ordered the TCEQ to release internal agency documents on the carcinogen ethylene oxide sought by the Sierra Club. As the club described it in a blog post , the TCEQ wanted to allow more emissions of the chemical “by claiming [ethylene oxide] was 3,500x less dangerous than the federal Environmental Protection Agency has shown. Sierra Club asked TCEQ to publicly release the documents that TCEQ considered or relied on as the technical basis for its [ethylene oxide] risk value. But, the agency refused, claiming confidentiality.”

Caleb Roberts, executive director of Downwinders at Risk , a Dallas-based clean-air advocacy group, said the Legislature’s creation of the 15th Court further complicated “an already complex and arduous system” that favors polluters and their supporters at the state level, at the expense of local government officials who “aren’t on the same political spectrum.”

Texas’ Republican majority has worked for years to limit the capacity of jurisdictions like Harris County, a petrochemical-manufacturing powerhouse, to hold chronic polluters accountable. Just last year, the Legislature took away the rights of city governments to protect workers from the life-threatening effects of extreme heat.

Among the significant TCEQ permitting cases that will pass from the 3rd Court to the 15th Court in September are proposed expansions of the Exxon Mobil chemical plant in Baytown, near Houston, which experienced a major accident in 2019, and the Valero refinery in Corpus Christi . The Exxon Mobil permit is on the TCEQ’s July 17 agenda and is expected to be approved; if that happens, residents of the already-polluted community are likely to appeal. The Valero permit was approved by the TCEQ in June, against the recommendation of an administrative law judge, and is also likely to be appealed if the agency doesn’t reverse its decision.

Another case of note: An appeal of a Travis County judge’s order striking down the TCEQ’s so-called one-mile rule, which holds that anyone who lives farther than a mile from an industrial facility can’t contest a permit. Inside Climate News reported last year that the TCEQ “has consistently invoked the [rule] to deny permit hearings for at least the past 13 years, even though no such rule exists in either Texas law or TCEQ rules.” The case in litigation involves the proposed expansion of the Seahawk oil terminal by a company called Max Midstream on Lavaca Bay, southwest of Houston.

State Senator Joan Huffman, a Republican and a sponsor of the legislation that created the 15th Court, told Public Health Watch that the new body “will allow judges to apply specialized precedent in subject areas important to the entire state. Because these are issues of statewide concern, judges selected statewide should be deciding them, and they should be experts in these types of cases.”

Abbott’s initial appointees are Scott A. Brister, a former justice on the all-Republican Texas Supreme Court whose nine members reliably rule in favor of business; Scott K. Field, a judge in Williamson County, north of Travis County, who lost his seat on the 3rd Court to a Democrat in 2022; and April L. Farris, a justice on the 1st Court of Appeals in Houston and a former president of the local chapter of the Federalist Society , a conservative legal group. Their terms expire at the end of 2026, and there are two more gubernatorial appointees to come. Ultimately, all five justices will be elected.

In addition to fielding cases involving state agencies, the 15th Court will hear commercial disputes in which the amount at stake exceeds $5 million in some instances and $10 million in others. Should an appeal make it beyond the 15th Court, it will land in the state Supreme Court.

The political makeup of the 3rd Court has changed dramatically since 2018, when there were six Republican and no Democratic justices. By 2019, there were four Democrats and two Republicans, and by last year all the justices were Democrats. The 15th Court will tilt the balance of power back to the Republicans.

Adrian Shelley, Texas director of the consumer group Public Citizen , called the new court a “slanted playing field the pro-corporation Legislature invented, with referees appointed by Governor Abbott. This takes judge-shopping to a new level. It’s BYOC — bring your own court — for polluters and powerful interests.”

Abbott’s office did not respond to a request for comment by Public Health Watch . Spokespeople for the TCEQ and the Texas Chemistry Council, a lobby group that represents the state’s chemical industry, declined to comment.

Jim Morris is editor-in-chief of Public Health Watch , a nonprofit investigative news organization. Leah Clark and Manuela Silva are fellows with the Investigative Reporting Workshop at American University.