Senator Eliot Shapleigh - El Paso, Texas

State Sen. Eliot Shapleigh, D-El Paso, emerged from the Travis County District Court Monday hopeful his request for confidential Asarco-related documents from the Texas Commission on Environmental Quality would be granted soon.

“In our democracy the public has the right and duty to oversee public agencies. Public agencies that hide documents hide from public oversight. TCEQ cannot decide what the people have a right to know,” Shapleigh said.

Lawyers for the TCEQ argued that releasing the documents breached the separation of powers principle in the constitution as it represented unnecessary interference in one branch of government (TCEQ as part of the executive) by another (legislature, represented by Shapleigh).

However Buck Wood, representing Shapleigh, disputed TCEQ’s arguments and said he was confident the judge would rule favorably within a few days.

“Sometimes, I come out of the court room wondering if the judge really ever got it. That’s not a problem. He gets it totally. Better than some of the litigants,” said Wood.

Shapleigh requested the documents under the authority of a 1973 statute that allows legislators to view otherwise confidential communications for “legislative purposes.”

Shapleigh said that he has already filed several bills based on what his office believes happened when TCEQ approved Asarco’s request to reopen last year. But he did not rule out the state taking action against TCEQ employees once the documents were released.

"With the documents, we believe a pattern of secret and illegal activity will be discovered,” Shapleigh said.

If the judge rules in favor of Shapleigh, TCEQ, as part of the executive branch, will have to seek the Attorney General's permission to appeal. That could drag the process out for months, said Wood.

Shapleigh remains unperturbed.

“Here’s what I know: The public has an absolute right to oversee public agencies. So we'll appeal this until we get the documents,” Shapleigh said.

Shapleigh has spent over a year trying to get hold of emails, cell phone records and other documented communication between Asarco and the TCEQ since the state agency ruled in favor of approving Asarco’s permit to reopen the copper smelter in El Paso.

In February, Asarco, now bankrupt, decided to permanently close the smelter. TCEQ proposed that clean-up costs would total $52 million. However Shapleigh believes the figure is more likely to be $250 million and has written to Texas Attorney Gregg Abbot demanding the state “reassess the true cost of cleanup of ASARCO's on site property in El Paso.”

Shapleigh is not the only elected official from El Paso to enjoy a frosty relationship with the TCEQ. In March, the city’s mayor John Cook dubbed the agency the “Texas Commission for the Protection of Polluters” and demanded they pay the city back $1.4 million the city spent in legal fees to keep the Asarco plant closed.