Can Texas let an environmental agency exempt a company from a pollution rule if it uses an equally protective alternative?

TX AG Opinion DM-0474: Is the TNRCC's pollution-exemption power constitutional?

Plain-English summary

Barry McBee, the chair of the Texas Natural Resource Conservation Commission (TNRCC), asked the Attorney General whether Water Code section 5.123 was constitutional. The Legislature enacted section 5.123 in 1997. It lets the commission, by order, exempt an applicant from a statute or commission rule about controlling or abating pollution if the applicant proposes to control or abate pollution by an alternative method or standard that is (1) at least as protective of the environment and public health as the method or standard that would otherwise apply, and (2) not inconsistent with federal law. The statute requires the commission to set up a procedure for exemptions that includes public notice and public participation, requires each order to describe the alternative method and condition the exemption on compliance with it, and makes a violation of an exemption order punishable as if it were a violation of the underlying statute or rule. McBee asked whether this power violates the Texas Constitution's prohibition on suspending laws (article I, section 28) or its separation-of-powers provision (article II, section 1).

The Attorney General concluded section 5.123 does not violate either provision. On the suspension question, article I, section 28 says no power of suspending laws may be exercised except by the Legislature, and it bars the Legislature from delegating that power. But courts have long held that section 28 does not stop the Legislature from authorizing an agency to grant exceptions to statutory requirements, as long as the agency's discretion is properly limited (which is also what the separation-of-powers test requires). The opinion relied on Sproles v. Binford, where the U.S. Supreme Court upheld a Texas statute letting the highway department issue case-by-case permits for oversize loads, holding that authority was "fact-finding and administrative," not a suspension of the law. Texas courts had applied the same reasoning to a boll-weevil eradication statute (Williams v. State) and to insurance-filing exceptions (Sam Houston Life Insurance). A section 5.123 order does not authorize anyone to violate a pollution statute; it authorizes compliance by an alternative means that meets a standard the Legislature itself prescribed. The opinion rejected the arguments that it mattered whether exceptions are made by rule or by case-by-case order, and that section 5.123's broad reach across many statutes turned it into a suspension of laws.

On separation of powers, a delegation of legislative authority must be reasonably clear, a standard of measurement. Texas courts generally uphold delegations except where they are so vague they supply no standard at all, and in environmental and public-health regulation they have accepted broad standards as enough guidance (the opinion cited cases approving delegations to the Railroad Commission, the Department of Health, the State Board of Health, and the Board of Water Engineers). The "at least as protective of the environment and the public health" standard, the opinion concluded, is comparable to those upheld and satisfies article II, section 1. Finally, addressing McBee's question about case-by-case exemptions, the opinion treated the real concern as whether section 5.123 is a prohibited local or special law under article III, section 56. Because the statute does not limit eligibility to a geographic region or a particular class of persons, it is not, on its face, a local or special law, though the commission must still administer it consistently with equal-protection guarantees.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Texas Natural Resource Conservation Commission was renamed the Texas Commission on Environmental Quality (TCEQ) in 2002, and the Water Code and the relevant delegation and special-law case law have developed since 1998. Confirm the current statute, the current agency, and later case law before relying on any specific rule here.

Who this opinion affected (as of 1998)

The TNRCC (now TCEQ): The opinion told the commission its statutory authority to grant pollution-control exemptions by order was a constitutional delegation, so it could implement section 5.123, while cautioning that it had to administer the program consistently with equal-protection guarantees.

Regulated businesses and pollution-control applicants: The opinion meant a company could apply for an order allowing an alternative compliance method, but the order would not excuse pollution; it would require an alternative at least as protective, with violations punished as if the underlying rule had been broken.

Environmental advocates and the public: The opinion confirmed the program had to include public notice and participation, and noted the practical difficulty of monitoring many individual exemption proceedings, while holding that difficulty was not a constitutional objection.

Common questions

Did this opinion let polluters off the hook?
No. The opinion stressed that a section 5.123 order does not authorize anyone to violate a pollution statute. It authorizes compliance by an alternative method that must be at least as protective of the environment and public health, and a violation of the order is punished as if the original rule had been violated.

Why isn't granting these exemptions an unconstitutional "suspension of laws"?
The opinion explained that the commission is not suspending a statute; it is finding facts and deciding whether an alternative method meets a legislatively set standard. Courts have held that authorizing an agency to grant such exceptions, with limited discretion, does not violate article I, section 28.

Is the "at least as protective" standard specific enough?
The opinion concluded yes. Texas courts uphold broad standards in environmental and public-health regulation as sufficient guidance for an agency, and this standard is comparable to those that have been approved, so it satisfies the separation-of-powers requirement of article II, section 1.

Could the commission grant exemptions one applicant at a time?
Yes. The opinion concluded section 5.123 contemplates case-by-case exemptions and that this does not make it an unconstitutional suspension of laws or, on its face, a prohibited local or special law, as long as eligibility is not limited to a region or particular class.

Background and statutory framework

Chapter 5 of the Water Code establishes the TNRCC and its general powers. Section 5.123, enacted by the Act of May 24, 1997, 75th Leg., R.S., ch. 1203, § 1, authorizes the commission by order to exempt an applicant from a pollution-control or pollution-abatement statute or rule when the applicant proposes an alternative method or standard at least as protective of the environment and public health and not inconsistent with federal law. The commission must adopt exemption procedures providing for public notice and participation, each order must describe the alternative and condition the exemption on compliance, and a violation of an order is punishable as a violation of the rule from which it grants an exemption.

On the suspension-of-laws question (Tex. Const. art. I, § 28), the opinion explained that section 28 bars the Legislature from delegating the power to suspend laws, but does not preclude authorizing an agency to grant exceptions to statutory requirements where the agency's discretion is limited (the same inquiry as the article II, section 1 delegation test). The opinion relied on Sproles v. Binford, 286 U.S. 374 (1932), in which the U.S. Supreme Court rejected a section 28 challenge to a Texas oversize-vehicle permit scheme, holding the authority "fact-finding and administrative" rather than a suspension, and on Texas decisions adopting that reasoning: Williams v. State, 176 S.W.2d 177 (Tex. Crim. App. 1943) (boll-weevil eradication exceptions), and State Board of Insurance v. Sam Houston Life Insurance Co., 344 S.W.2d 709 (Tex. Civ. App.-Austin 1961, no writ) (insurance-filing exceptions). Because a section 5.123 order lets the holder comply by an alternative means meeting a legislatively prescribed standard, the delegated power is to determine whether alternatives satisfy that standard, not to suspend statutes. The opinion found no constitutional significance in whether exceptions are made by rule or by order, or in the broad class of statutes section 5.123 reaches.

On the delegation question (Tex. Const. art. II, § 1), the opinion applied the rule that a delegation must be "reasonably clear and hence acceptable as a standard of measurement" (Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen, 952 S.W.2d 454 (Tex. 1997)), and that the Legislature may delegate power so long as it sets reasonable standards to guide the agency (Edgewood Independent School District v. Meno, 917 S.W.2d 717 (Tex. 1995), quoting Railroad Commission of Texas v. Lone Star Gas Co., 844 S.W.2d 679 (Tex. 1992)). It noted that in environmental and public-health regulation, courts have found broad standards sufficient (citing Lone Star Gas; Trapp v. Shell Oil Co., 198 S.W.2d 424 (Tex. 1946); and decisions upholding delegations to the Department of Health, the State Board of Health, and the Board of Water Engineers), and concluded the "at least as protective" standard satisfies article II, section 1.

Addressing the case-by-case question, the opinion discussed McDonald v. Denton, 132 S.W. 823 (Tex. Civ. App. 1910, no writ) (a Houston attempt to permit prostitution in a limited area), which holds that a suspension of general laws must be general and cannot be made for individual cases or particular localities, and which also reflects the article III, section 56 ban on local and special laws. Treating that as the real concern, the opinion applied Maple Run at Austin Municipal Utility District v. Monaghan, 931 S.W.2d 941 (Tex. 1996), and Miller v. El Paso County, 150 S.W.2d 1000 (Tex. 1941): a local law is limited to a geographic region, a special law to a particular class, and section 56 secures uniformity and prevents special privileges. Because section 5.123 does not limit eligibility to a region or class, it is not on its face a local or special law, though the commission, while not directly subject to section 56, must apply and enforce it consistently with state and federal equal-protection guarantees.

Citations

Statutes and constitution:

• Tex. Water Code § 5.123 (Act of May 24, 1997, 75th Leg., R.S., ch. 1203, § 1)
• Tex. Const. art. I, § 28; art. II, § 1; art. III, § 56
• Tex. Gov't Code ch. 2001, subch. B (Administrative Procedure Act, rulemaking)

Cases:

• Sproles v. Binford, 286 U.S. 374 (1932)
• Williams v. State, 176 S.W.2d 177 (Tex. Crim. App. 1943)
• State Board of Insurance v. Sam Houston Life Insurance Co., 344 S.W.2d 709 (Tex. Civ. App.-Austin 1961, no writ)
• Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen, 952 S.W.2d 454 (Tex. 1997)
• Edgewood Independent School District v. Meno, 917 S.W.2d 717 (Tex. 1995)
• Railroad Commission of Texas v. Lone Star Gas Co., 844 S.W.2d 679 (Tex. 1992)
• Trapp v. Shell Oil Co., 198 S.W.2d 424 (Tex. 1946)
• McDonald v. Denton, 132 S.W. 823 (Tex. Civ. App. 1910, no writ)
• Maple Run at Austin Municipal Utility District v. Monaghan, 931 S.W.2d 941 (Tex. 1996)
• Miller v. El Paso County, 150 S.W.2d 1000 (Tex. 1941)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0474
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1998/dm0474.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General, State of Texas

DAN MORALES, ATTORNEY GENERAL

April 14, 1998

Mr. Barry R. McBee
Chair, Texas Natural Resource Conservation Commission
P.O. Box 13087
Austin, Texas 78711-3087

Opinion No. DM-474

Re: Whether Water Code section 5.123, as enacted by Act of May 24, 1997, 75th Leg., R.S., ch. 1203, § 1, violates the suspension of laws and separation of powers provisions of the Texas Constitution (RQ-975)

Dear Mr. McBee:

You ask whether Water Code section 5.123, a recently enacted statute authorizing the Texas Natural Resource Conservation Commission ("TNRCC" or the "commission") to grant exemptions to statutes and commission rules regarding pollution control or abatement, violates the suspension of laws and separation of powers provisions of the Texas Constitution. For the following reasons, we conclude that section 5.123 does not run afoul of these provisions.

Chapter 5 of the Water Code establishes the TNRCC and sets forth its general powers and duties. Section 5.123 provides in pertinent part as follows:

(a) The commission by order may exempt an applicant from a requirement of a statute or commission rule regarding the control or abatement of pollution if the applicant proposes to control or abate pollution by an alternative method or by applying an alternative standard that is:

(1) at least as protective of the environment and the public health as the method or standard prescribed by the statute or commission rule that would otherwise apply; and

(2) not inconsistent with federal law.

(b) The commission by rule shall specify the procedure for obtaining an exemption under this section. The rules must provide for public notice and for public participation in a proceeding involving an application for an exemption under this section.

(c) The commission's order must provide a specific description of the alternative method or standard and condition the exemption on compliance with the method or standard as the order prescribes.

. . .

(e) A violation of an order issued under this section is punishable as if it were a violation of the statute or rule from which the order grants an exemption.

We begin with your question about the prohibition against suspension of laws. Article I, section 28 of the Texas Constitution provides that "[n]o power of suspending laws in this State shall be exercised except by the Legislature." Section 28 prohibits the legislature from delegating the power to suspend laws. Courts have held that section 28 does not preclude the legislature from authorizing an administrative agency to grant exceptions to statutory requirements, however, provided that the agency's discretion is limited or, in other words, that the delegation of authority is valid under article II, section 1 of the Texas Constitution. Thus, for example, in Sproles v. Binford the United States Supreme Court considered a section 28 challenge to a Texas statute that generally prohibited the operation of overweight and oversize vehicles but authorized the former Texas Highway Department to grant carriers time-limited permits to transport overweight or oversize commodities "as cannot reasonably be dismantled" under certain conditions. Sproles v. Binford, 286 U.S. 374, 380 n.1, 397 (1932). The court concluded that "the authority given to the department is not to suspend the law, but is of a fact-finding and administrative nature." Id. at 397 (citing Trimmier v. Carlton, 296 S.W. 1070 (Tex. 1927)). The court went on to conclude that the statute was a constitutional delegation of legislative power. Id. This reasoning has been adopted by at least two Texas courts faced with section 28 challenges to statutes authorizing administrative agencies to grant exceptions to statutory requirements. See Williams v. State, 176 S.W.2d 177 (Tex. Crim. App. 1943) (upholding statute authorizing commissioner of agriculture to promulgate rules making exceptions to boll weevil eradication statute prohibiting cotton farming in regulated zones); State Bd. of Ins. v. Sam Houston Life Ins. Co., 344 S.W.2d 709 (Tex. Civ. App.-Austin 1961, no writ) (upholding statute authorizing former Board of Insurance Commissioners to make exceptions to statutory filing requirements).

[Footnote: McDonald v. Denton, 132 S.W. 823, 825 (Tex. Civ. App. 1910, no writ).]

Section 5.123 authorizes the TNRCC to grant exemptions to statutory and regulatory pollution control or abatement requirements "if the applicant proposes to control or abate pollution by an alternative method or by applying an alternative standard that is at least as protective of the environment and the public health as the method or standard prescribed by the statute or commission rule that would otherwise apply." An order under section 5.123 does not authorize its holder to violate a pollution control or abatement statute. Rather, it authorizes the holder to comply with the statute by another means that conforms with a legislatively prescribed standard. The power delegated to the TNRCC is not the power to suspend statutes but rather to determine whether alternative methods of compliance satisfy the legislatively prescribed standard. We see no reason why the legislature cannot delegate this authority to an administrative agency, provided that the prescribed standard is sufficiently clear. See discussion of Tex. Const. art. II, § 1 infra pp. 4-5.

A brief submitted to this office suggests that Williams v. State, cited above, must be distinguished because in that case the Commissioner of Agriculture was authorized to make exceptions by rule whereas in this case the TNRCC is authorized to grant exemption orders on a case-by-case basis. We disagree. First, we are not persuaded that there is a distinction for purposes of section 28 between a statute authorizing an agency to make general exceptions to a statutory requirement by rule and one authorizing an agency to make specific exceptions to a statutory requirement by order. Section 5.123 mandates that TNRCC procedures for obtaining an exemption must provide for public notice and for public participation in a proceeding involving an application for an exemption, a process akin to rulemaking procedures. Furthermore, each order must comport with the same basic standard that the approved alternative method or standard be "at least as protective of the environment and the public health." While we appreciate that it may be a greater challenge for the public to monitor and participate in an untold number of exemption proceedings than to monitor and participate in a few rulemaking proceedings, we do not view this as a tenable objection under section 28.

Moreover, the section 28 cases cited above do not suggest that the manner in which an agency is authorized to make exceptions to statutory requirements is significant. The Williams v. State opinion does not make this distinction. Moreover, in Sproles v. Binford the United States Supreme Court clearly condoned legislation authorizing the state highway department to make exceptions to general law by permits granted on a case-by-case basis. See also Sam Houston Life Ins. Co., 344 S.W.2d 709 (condoning statute authorizing Board of Insurance Commissioners to make by order case-by-case exceptions to statutory filing requirements).

Section 5.123 is unique in its scope. Unlike the statutes at issue in the cases discussed above, it does not authorize the TNRCC to make exemptions to just one statute. Rather, it authorizes the commission to make exemptions to a broad class of statutes. We do not believe this difference is significant for purposes of section 28, however. Clearly, the legislature would not run afoul of the suspension of laws provision if it amended a particular pollution control or abatement statute to authorize the TNRCC to grant applications permitting compliance by alternative means that conform with a particular standard. The potential magnitude of statutes and commission rules affected by section 5.123 does not transform the statute into a suspension of laws. While the broad scope of section 5.123 may have unique policy implications, it is not our role to evaluate the wisdom of the legislature's policy choices. Based on the cases discussed above, we conclude that section 5.123 does not authorize the TNRCC to suspend laws and thus does not violate article I, section 28.

Next, we address whether section 5.123 is a valid delegation of legislative authority. Article II, section 1, the separation of powers provision, requires that any delegation of legislative authority to an administrative agency be "reasonably clear and hence acceptable as a standard of measurement." Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 467 (Tex. 1997). As the Texas Supreme Court recently stated,

The Texas Legislature may delegate its powers to agencies established to carry out legislative purposes, as long as it establishes "reasonable standards to guide the entity to which the powers are delegated." Railroad Comm'n v. Lone Star Gas Co., 844 S.W.2d 679, 689 (Tex. 1992) (quoting State v. Texas Mun. Power Agency, 565 S.W.2d 258, 273 (Tex. Civ. App.-Houston [1st Dist.] 1978, writ dism'd)). "Requiring the legislature to include every detail and anticipate unforeseen circumstances would defeat the purpose of delegating legislative authority." Id.

Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 740 (Tex. 1995). Texas courts have generally upheld delegations of legislative authority, Lewellen, 952 S.W.2d at 467-68, except in cases where the delegation is so vague that it provides no legislative standards, id. at 468-69.

More particularly in the area of environmental and public health regulation, courts have concluded that broad standards provide sufficient guidance for administrative agencies to properly exercise delegated legislative authority. See, e.g., Railroad Comm'n of Texas v. Lone Star Gas Co., 844 S.W.2d 679 (Tex. 1992) (approving standards delegating authority to Railroad Commission to prevent waste and promote conservation); Trapp v. Shell Oil Co., 198 S.W.2d 424, 438 (Tex. 1946) (upholding legislative delegation of authority to Railroad Commission to conserve oil and gas); Med-Safe, Inc. v. State, 752 S.W.2d 638, 640 (Tex. Civ. App.-Houston [1st Dist.] 1988, no writ) (upholding delegation of authority to Department of Health to license solid waste disposal sites to "safeguard the health, welfare and physical property of the people" and to "protect the environment"); Beall Medical Surgical Clinic & Hosp., Inc. v. Texas State Bd. of Health, 364 S.W.2d 755, 756-57 (Tex. Civ. App.-Dallas 1963, no writ) (upholding delegation of legislative authority to state board of health to license hospitals to "promote the public health and welfare by providing for the development, establishment, and enforcement of certain standards in the construction, maintenance, and operation of hospitals"); Clark v. Briscoe Irrigation Co., 200 S.W.2d 674, 682-85 (Tex. Civ. App.-Austin 1947, writ dism'd) (upholding delegation of legislative authority to board of water engineers to determine whether permit application "detrimental to the public welfare").

Section 5.123 authorizes the TNRCC to grant exemptions to pollution abatement statutes and rules to applicants who propose to abate pollution by alternative methods provided that the alternative method is "at least as protective of the environment and the public health as the method or standard prescribed by the statute or commission rule that would otherwise apply." This delegation of authority articulates a broad standard comparable to the broad standards approved in the authorities cited above. While there may be some debate whether a particular alternative method satisfies the requirement that it be "at least as protective of the environment and the public health as the method or standard prescribed by the statute or commission rule that would otherwise apply," we believe a court would conclude that this language satisfies the dictates of article II, section 1.

Assuming section 5.123 does not authorize the TNRCC to suspend the law and is a permissible delegation of legislative authority, you also ask if "the exemption [may] be granted on a case-by-case basis, as contemplated by [section 5.123], or would it have to be a 'general' suspension?" We agree that section 5.123 contemplates that exemptions will be made on a case-by-case basis, but are not sure of the nature of your concern. Following your question, you cite McDonald v. Denton, 132 S.W. 823 (Tex. Civ. App. 1910), a case involving a City of Houston attempt to permit prostitution in a limited area, which explores the legislature's authority to suspend laws:

It is the general rule that the Legislature, although given the power of suspending the operation of the general laws of the state, must make the suspension general, and cannot suspend them for individual cases or for particular localities. The Legislature of Texas itself could not have suspended such laws in a part or the whole of the city of Houston, and, of course, it cannot empower the municipal government to do so.

Id. at 824-25. In addition to articulating the principle that only the legislature may suspend the law, McDonald also recognizes the limitation on legislative power embodied in article III, section 56 of the Texas Constitution, the prohibition against legislative enactment of local and special laws. Given that you have already asked whether section 5.123 suspends the law, we assume you intend to ask whether section 5.123 is a local or special law contrary to article III, section 56.

The Texas Supreme Court recently explained the meaning of the terms "local law" and "special law" as follows:

While the terms "local law" and "special law" have at times been used interchangeably, a local law is one limited to a specific geographic region of the State, while a special law is limited to a particular class of persons distinguished by some characteristic other than geography. See 1 George D. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 273-277 (1977).

The purpose of Section 56 is to "prevent the granting of special privileges and to secure uniformity of law throughout the State as far as possible." [Miller v. El Paso County, 150 S.W.2d 1000, 1001 (Tex. 1941).] In particular, it prevents lawmakers from engaging in the "reprehensible" practice of trading votes for the advancement of personal rather than public interests. Id.

Maple Run at Austin Mun. Util. Dist. v. Monaghan, 931 S.W.2d 941, 945 (Tex. 1996). Section 5.123 does not limit eligibility for pollution control or abatement exemptions to a specific geographic region or to a particular person or class of persons. On its face, section 5.123 is not a local or special law. We note, however, that the TNRCC, when adopting procedures for obtaining exemptions, granting exemptions, and monitoring compliance with exemption orders, must apply and enforce the law equitably. While the TNRCC is not the legislature and thus is not directly subject to article III, section 56, it must apply and enforce section 5.123 consistent with state and federal equal protection guarantees.

[Footnote: While the legislature is authorized to make classifications for legislative purposes, "the classification must be broad enough to include a substantial class and must be based on characteristics legitimately distinguishing such class from others with respect to the public purpose sought to be accomplished by the proposed legislation." Miller, 150 S.W.2d at 1001-02. "The primary and ultimate test of whether a law is general or special is whether there is a reasonable basis for the classification made by the law, and whether the law operates equally on all within the class." Rodriguez v. Gonzales, 148 Tex. 537, 227 S.W.2d 791, 793 (1950). Monaghan, 931 S.W.2d at 945. Thus, "the ultimate question under Article III, Section 56 is whether there is a reasonable basis for the Legislature's classification. The significance of the subject matter and the number of persons affected by the legislation are merely factors, albeit important ones, in determining reasonableness." Id. at 947 (citations omitted).]

SUMMARY

Water Code section 5.123, as enacted by Act of May 24, 1997, 75th Leg., R.S., ch. 1203, § 1, does not violate article I, section 28 or article II, section 1 of the Texas Constitution.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General