Senator Eliot Shapleigh - El Paso, Texas

State Sen. Eliot Shapleigh is headed into court this afternoon fighting for documents from the Texas Commission on Environmental Quality that he says will show the agency is little but a lapdog for polluters.

He mocks the agency for using the Watergate "executive privilege" defense in its resistance to give up those documents. The Texas attorney general and a state district court already have instructed the agency to produce the documents under the state's Public Information Act.

The Commission on Environmental Quality has appealed to the Third Court of Appeals.

"We anticipate we will win on every count. The people have a right to know what government is doing," Shapleigh, D-El Paso, said of the case.

He also believes the issue eventually will lead to a criminal investigation.

The case revolves around the agency's handling of a permit to reopen an old copper smelter on the fringes of Downtown El Paso.

The agency's former executive director Glenn Shankle overruled a unanimous recommendation by administrative law judges not to allow ASARCO to re-open its copper smelter.

Commissioners followed Shankle's recommendation but the federal Environmental Protection Agency stepped in and blocked the reopening. Shankle eventually became a lobbyist for Waste Control Specialists - a company building a large radioactive waste dump in West Texas.

Asarco filed for bankruptcy nearly five years ago and a fee payment request by the Baker Botts law firm revealed meetings with senior TCEQ members including Commission Chairman Buddy Garcia and Asarco representatives. Shapleigh calls them "secret, illegal meetings" during a pending air permit application.

Meanwhile, El Paso is stuck with an estimated $500 million cleanup cost for the old smelter site, he says.

"Here is the case study in how polluters' money, lobbyists and backdoor dealing in Austin straps taxpayers with billions in cleanup costs back home," Shapleigh said. "Taxpayers have a right to know how this happens, and that is what this case is about."

Rocky Mountain Arsenal waste, including nerve gas, "got burned in El Paso with the knowledge and consent of the TCEQ. That's what we want to know," he added.

TCEQ staff has been relatively mum. We are waiting on a return call.

Agency lawyers have said they don't have to give up the documents "because it would violate the separation of powers principle embodied in the Texas Constitution. That principle forbids excessive interference by the legislative branch in the business of the executive branch.

"For a member of the Legislature to have access to agency documents like the ones involved in this lawsuit would constitute excessive interference," agency lawyers have said in court pleadings.

Shapleigh derisively describes that reasoning as the old Watergate defense of disgraced President Nixon setting himself up above the law.