Senator Eliot Shapleigh - El Paso, Texas

AUSTIN -- Releasing reams of internal documents that state Sen. Eliot Shapleigh has asked for in the Asarco case would violate the Texas Constitution, lawyers for the state environmental agency told a judge Monday.

"Just because the Legislature created an agency, it doesn't give the Legislature power to interfere with the agency's functions," said Nancy Olinger, an assistant state attorney general representing the Texas Commission on Environmental Quality.

State District Judge Scott Jenkins is expected to rule soon on whether Shapleigh should have access to documents that contain information about how and why the commission decided to grant Asarco an air permit to restart its copper smelter in El Paso.

Shapleigh, D-El Paso, asked for documents that he said could reveal potentially illegal interactions between Asarco lawyers and commissioners of the environmental agency.

He said he suspected that those communications were part of the reason commissioners in February 2008 approved a controversial air-quality permit that would have allowed Asarco to reopen its smelter.

The Texas Commission on Environmental Quality refused to release the documents and sued state Attorney General Greg Abbott after he ordered the agency to fulfill Shapleigh's request.

Asarco eventually decided not to reopen its El Paso smelter, but Shapleigh said obtaining the documents was still critical to ensuring that the environmental agency was operating within the law.

"We see a pattern where polluters have penetrated an agency," he said. "We want a road map on how the agency that was created to protect our air is now aligned with those that pollute our air."

The agency argued in court that documents Shapleigh was seeking contain confidential exchanges between lawyers and staff. Releasing the documents, Olinger said, would stifle talks between lawyers and staff, and violate the Texas Constitution's required separation of powers among the three branches of state government.

"The request intrudes upon the sacrosanct confidentiality of attorney-client (communications) and attorney work product," Olinger said.

But Doug Ray, an attorney representing Shapleigh, and Brenda Loudermilk, an attorney for the Texas attorney general's open records division, argued that the environmental agency is a creation of the Legislature and is not in the executive branch.

Loudermilk said it was "illogical" to argue that lawmakers should not have access to information about the agencies they are responsible for overseeing. She also pointed out that if legislators reveal confidential information, they could face criminal penalties.

"A state agency is strictly a legislative agency," Loudermilk said. "It's here today, it's gone tomorrow."