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Texas Supreme Court holds that Texas Clean Air Act preempts city air ordinance

April 29, 2016

The Texas Supreme Court held that the Texas Clean Air Act preempted the City of Houston ordinance.

U.S. Chamber asks Texas Supreme Court to clarify Texas Clean Air Act enforcement

January 12, 2015

In the coalition brief, the Chamber asked the Texas Supreme Court to clarify Texas’s preemption doctrine as it relates to the City of Houston’s authority to pass an ordinance governing the enforcement of the Texas Clean Air Act in the city. The brief argues that under the Home Rule Amendment to the Texas Constitution, Houston has no authority to pass ordinances that are inconsistent with the general laws of Texas. The Federal preemption doctrine illustrates two ways in which Houston’s Ordinance conflicts with, and so is preempted by, the Texas Clean Air Act. First, the Ordinance is inconsistent with the Legislature’s chosen method for regulating the air in Texas, because it makes an end-run around the Texas Clean Air Act’s delegation of authority to the Texas Commission on Environmental Quality (“TCEQ”) and careful enumeration of a lesser regulatory role for cities. Second, the Ordinance is inconsistent with the Legislature’s express command that the TCEQ balance environmental and economic interests, in the fact that it appoints Houston as an additional and more aggressive enforcer of state-law standards.

The Chamber points out that this case would present an ideal opportunity for the court to clarify Texas’s preemption doctrine by rejecting Houston’s attempt to undermine the legislature. If this left unchecked, a similar trend of arrogation will likely develop in other cities across the state, undermining important state policies and imposing significant burdens on Texas’s citizens. The Chamber filed the brief jointly with the National Association of Manufacturers.

James P. Sullivan, Ashley C. Parrish, and S. Shawn Stephens of King & Spalding LLP represented the U.S. Chamber of Commerce as co-counsel to the U.S. Chamber Litigation Center.

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