Senator Eliot Shapleigh - El Paso, Texas

Bryan W. Shaw’s confirmation as a member of the Texas Commission on Environmental Quality has run into trouble in the Texas Senate. At a press conference this morning, Sens. Eliot Shapleigh, Wendy Davis and Rodney Ellis called for a “top to bottom” review of the agency — in the manner of the DeLoitte Touche analysis of management at the TexasDepartment of Transportation.

Citing examples of ex parte communications, the revolving door between the commission and industry, failure to enforce federal laws and a pattern of decisions in which the commission overrules its own scientists, the three lawmakers claimed unethical — and sometimes illegal — activities at the TCEQ were undermining the agency’s core mission.

Shaw has undergone extensive questioning by the Senate Nominations Committee, but Shapleigh said Shaw has yet to convince lawmakers that he is committed to ending practices like ex parte communications between commission members and industry representatives.  Unless Shaw takes some dramatic steps for a wholesale agency management review, “you’ll see many of us move to block his nomination,” Shapleigh said.

Shapleigh has doggedly tracked the commission since its controversial decision regarding Asarco’s lead smelter permit in El Paso, a decision he says was made in violation of federal standards.  An Austin judge recently sided with Shapleigh in a lawsuit for open records providing details of meetings between Asarco representatives and commission members prior to its permit decision.

Monday, the three lawmakers also raised the possibility that federal regulators would step in and strip the TCEQ of responsibilities delegated by the EPA. Environmental groups filed a petition requesting that action under the Bush Administration and no action was taken; that could change once the Obama Administration names a new regional EPA director.

Texas has a checkered history with environmental regulators: Back in 1990, the Texas Supreme Court in the Acker vs. the Texas Water Commission case (the TWC became the TCEQ), found two commission members guilty of illegal ex parte communication while presiding over a hearing on a request for a wastewater permit. Two commissioners, during a break in proceedings, discussed the merits of the case while standing at the urinal in the men’s room — and were overheard by the attorney for losing side. In the “Bathroom Case,” as it became known, the Texas Supreme Court set out the importance of public deliberations and decision-making by all state commissions and boards.