Senator Eliot Shapleigh - El Paso, Texas

The Texas environmental agency is suing the state's top attorney, hoping to keep secret documents related to its decision earlier this year to allow the Asarco smelter to reopen in El Paso.

The Texas Commission on Environmental Quality, or TCEQ, filed a lawsuit Thursday against Texas Attorney General Greg Abbott after he ordered the agency to release records about Asarco to state Sen. Eliot Shapleigh, D-El Paso.

This type of lawsuit, an Abbott spokesman said, is "very, very rare." The agency is challenging the constitutionality of a decades-old open-records law that allows legislators access to confidential information about agencies they oversee.

Buck Wood, an Austin lawyer who is representing Shapleigh, said the case could reverberate through the Capitol because the TCEQ argues that lawmakers should not be privy to information that would allow them to monitor state government and write laws to solve problems that arise.

"To claim that's somehow unconstitutional is laughable, but that's the position they're taking," Wood said.

TCEQ spokeswoman Lisa Wheeler said the agency did not comment on pending litigation.

The TCEQ in February granted Asarco LCC, which owns the smelter, a five-year permit allowing its smelter to restart over the objections of local leaders in El Paso, New Mexico and Mexico. Opponents say the smelter would pollute the region's air, while Asarco argues its operation would be clean.

After that decision, Shapleigh asked the agency to provide him a list of documents he suspected could reveal possible illegal interactions between Asarco lawyers and TCEQ commissioners.

Texas law prohibits agency decision-makers from having one-sided communications with parties in contested cases.

Texas law also allows state legislators access to inside agency information that might otherwise be considered confidential.

The agency challenged Shapleigh's request. It asked Abbott to allow the documents to remain confidential, in part, because they were communications between attorneys and their clients. TCEQ attorneys also said Shapleigh's request would raise questions about the constitutional separation of powers between the legislative, executive and judicial branches of government.

Abbott, however, told the TCEQ last month to give Shapleigh the information.

"The commission has failed to sufficiently demonstrate that such interference is present," wrote Justin Gordon, an attorney in Abbott's open records division.

TCEQ attorneys gave Shapleigh some documents.

They filed a lawsuit in Travis County to keep the rest secret and argue that the law Abbott said entitles legislators to review agency information is an unconstitutional breach of the separation of powers.

"That principle forbids excessive interference by the legislative branch in the business of the executive branch," TCEQ attorneys wrote.

Tom Kelley, an Abbott spokesman, said the lawsuit had recently arrived, and he could not comment. The attorney general has until June 23 to file a response.

Only one-half of 1 percent of the open records rulings the attorney general makes each year wind up in court, Kelley said.

Shapleigh said he planned to join the lawsuit and press for the information from TCEQ to determine whether the agency broke the law when officials met with Asarco lawyers.

Already released court documents in Asarco's bankruptcy proceedings, he said, show that attorneys for the company met with TCEQ officials.

"When polluters run the agency, the public is not protected," Shapleigh said.

Asarco public relations representative Teresa Montoya declined to comment for this story.

Company officials have previously said that their attorneys met with TCEQ officials but that their interactions were neither illegal nor improper.

Wood, Shapleigh's attorney, said it appeared that TCEQ wanted to keep something from the light of legislative scrutiny.

"It is very extreme," he said. "Very few agencies have fought over something like this."