Untitled Texas Attorney General Opinion ( 1970 )

THE ATITCBRNEY GENEKAL
UDF %?EXAS
Dr. Herbert McKee Opinion No. M-665
Chairman
Texas Air Control Board Re: Authority of the
1100 W. 49th Street Attorney-General and
Austin, Texas local governments to
institute legal ac-
tion based'solely on
a violation of Texas
Air Control Board
rules, regulations,
Dear Doctor McKee: variances or orders.
Your inquiry Is whether the Attorney General's office,
after request from the Texas Air Control Board, Is author-
ized to institute legal action based on a violation of Texas
Air Control Board rules, regulations, variances or orders.
You also ask whether local governments are authorized to ln-
stitute like actions. Our answer to both Inquiries Is
"yes"* Our discussion will deal with the Attorney ,General's
authority, but the same reasoning applies to local govern-
ments' authority.
The pertinent law Involved In your Inquiry is the Texas
Clean Air Act, Article 4477-5, Vernon's Civil Statutes
(1969). The regulations Involved are Texas Air Control
Board Regulations I, II, III, IV, and V, adopted pursuant to
Section 3.09 of the Texas Clean Air Act. The rules brought
into issue are the Procedural Rules, General Provisions, and
all other Texas Air Control Board rules adopted pursuant to
Section 3.09. The variances In question are those granted
by the Board under authority of Section 3.21; and the or-
ders to be considered are those made by the Board under
authority of Section 3,E of the Texas Clean Air Act.
The question answered here arises because of the lan-
guage of the rohibltlve provision of the Texas Clean Air
Act, Section E .Ol, and the deflnltlon of "air pollution"
found in Section 1.03(3). "Air Pollution" is defined as ..-
"the presence in the atmosphere of one or more air contaml-
nants or combinations thereof, in such concentration and of
-3175-
Dr. Herb&t MciCee, page 2 (~-665).
such duration as are or may tend to be Injurious to or to
adversely affect human health or welfare, animal life, ,veg-
etatlon or property, o.r as to Interfere wlth.the.normal use
and enjoyment of animal life, vegetation or property”; :
Thus, to prove “air pollution” it is necessary to: prove ln-
jury, adverse effect or Interference with property use or a
tendency thereto caused by the air contaminants.
,Thla is, significant because Section 4,01(a) says that
no person may cause9 suffer, allow or permit the’emlsslon
of air contaminants i.. ,uhloh causes or contributes to .**
a condition of ‘air poiiutlon”. Consequently, in order to
prove a violation of Section 4,01(a), It 18 necessary to
prove “air pollutlonW, which requires proof of injury or a
tendency to Injure or to adversely affect, etc.
However, this proof is not required in a ease brought
under Section 4.01(b). This section prohibits any person
to cause, suffers allow or permit the emission of any air
contaminant D.~b,ln violation of the Act or any rule. re ula-
tlon, variance or other order of the T%ks Air--c-H=-. on ro
d Th Bo ds’e rules, regulations, and orders are val+
ldaGoo.longeas :iey are based upon the concept of preventlori;
abatement, and eontrol of “air pollution”, as that term is
statutorily defined.
Section 4.02(a) authorizes the Air Control Board to
cause a civil &Ii 60 be lnetltuted whenever it appears
that ,any person has# la, or threatens to violate the Act or
aw of the B3arTI-a
And brought for
the Board by the‘Attorney ffeneral,
In the recent oaae of Houston Sompreseed Steel Corp.
entitled to an l&nation agalnat ou
tlon II) “without the necessity of proving toxicity or ln-
jury or harm of any’klnd. O&door burning without a
variance Is all that need be proved,” In answer to a point
* This case has not yet reached pubIlkion in South-
western Reporter.
-3176-
Dr. Herbert McKee, page 3 (M-665).
of’ error that the definition of “air ,pollutlon” In the ‘A&
was Inadequate and that the:flat~ prohibition against out-
,door, burn,lng provided In Regulat,lon II was too vague to ap-
ply, the Court said at page 8 of Its oplnlo,n:
“Until 1967 the basis of our laws regarding,
pollution was the nuisance ddctrine, but ‘the
emphasis of our newer statutes is on regula-
tory standards. The science of air pollutlon
control Is new and Inexact, and these stand-
ards are difficult to devise, but If they are
to be effective they must be broad. If they
are too precise they will provide easy escape
for thoae who wleh to circumvent ‘the law.”
The Court expressly reviewed the’ definition of “air pollu-
tion” and pronounced It “clear and easily capable of
understanding. ”
If the Boqd dldnot have authority to proceed,ln
court to prevent violations of their rules, regulations,
variances, or orders, such rules, regulations, etc., would
be meaningless, empty pronouncements. The Noueton Court
recognized this In saying, at p. 4 of its opinion:
“The; Board haa no enforcement power of ltq
own. The only effective 11168238of securing
compliance with the Act Is by instituting
suits for injunctions OF penalties or both.
See. 4.02(a) provides that the district
court Is the proper forum for enforolng the
Act and the Bbarh ‘8 orders. ” No&on -
!Fhls is not to say that the Texas Air Control Board
should not malce orders and determinations, or.that when
,made, such orders are meaningless; but It Is ‘to say th,at
once made, such orders can be enforcred only by the Courts
of the State. And, aa In a suit based on a regulation via-
latlon, the only Issue for decision by the Court In a vault
based on an order vlolatlbn 1s whether or notthe defendant
violated the order. There is no Issue of intentional or
willful violation unless the statute makes such an lngredl-
ent of the cause of act&n. State v. Harrlngton, 407 S.W.
-3177-
Dr. Herbert McKee, page 4 (M-665).
2d~467 (%X6 Sup. 1966). The order, like a regulation, is
presumed valid If made within the scope of authority leg-
ally delegated. Pacific State Box and Basket Co. v, White,
296 VS., 176, 18 , lob 30 s ct 139 60 L. Ed. 138, TJl7
A.&R. 853 (1935 Th& eon-v 6oneoildated &8 Utllltiea
Cor@iwation, 300 %U.S. ---3?em (i93?J.
By this opinion, we should not be understood aa saying
that nulaanae evidence or evidence of Injury or harm is no’
longer valid or helpful evidence. It la valuable evidence,
because experienee with courts and juries has taught that
much stronger Judgments and..,penalties can be obtained by
enforcement agencies when the very human element of nul-
aanae evidence ia Incorporated Into an air pollution suit.
Such evidence may likewise becose,lmportant when the de-
fendant has attacked the, validity~ of the Board’s order or ‘,’
regulation andadduced evidence, if believed, which would
be eufflcient to eustain a ,findlng and judgment that the
order or regulation was not~based upon the concept of pre-
vention, abatement, and control of air pollution. Rorever,
that type of evidence la not an eeaentlal ingredient of,a
cau8e of action for violation of a valid rule or regulation.
We have, -therefore, answered th& first, question ,ln the
affirmative:, The answer to your question conaernlng local
overnments” autiiorfty la Ct$s,oaffitiative, beaeiuse Section
&.03 of the’ Act ,Mthorlzes il&al .governments to ;inatltute
milts “In the Bame manner aa the Board“. Thla etatutory
language makee”loca1 government&agents of the State per-
forming governmental funatione, v. Ideal
Cement Co up ~292F.Supp. 956 (g;D,
The Attorney general, upon request of the
Texas Air, Control Board, .ls authorized to
Institute legal action based eolely on a
violation of Texae Air Control Board rules,
regulationa, varlaneea or order.8 o A local
government has the same authority to ineti-
tute legal action without Board approval.
-3178-
Dr. Herbert McKee, page 5 (M-665).
Prepared by Richard W. Chote
Asalstant Attorney General
APPRGVEB:
OPINION COMMITTEE
Kerna Taylor, Chairman
Bill Allen, Co-Chairman
Tom Bu&lington
Mel Corley
Fieher Tyler
Ray McGregor
MEADEF, GRIFFIW
Staff Legal Assistant
NOLAWHITE
First Aakiietant
-3179-