Senator Eliot Shapleigh - El Paso, Texas

(Harry Cabluck/ASSOCIATED PRESS) Sen. Eliot Shapleigh suspects something to hide in renewal of permit.

Just what did Texas Commission on Environmental Quality Chairman H.S. Buddy Garcia talk about with a representative from an El Paso copper smelter as he was preparing to approve its permit application last year?

The controversy over whether the dormant Asarco smelter should be allowed to reopen cooled off after the environmental agency, led by Garcia, gave the smelter the go-ahead last year to resume operations. It died entirely when Asarco announced early this year it would permanently close the plant after an unfavorable federal ruling.

But the to-do lingers in an open records battle about the meetings between Garcia and the Asarco lobbyist. The open records showdown touches on attorney-client privilege, the rights of a lawmaker to oversee state business and possible out-of-school meetings between the chairman and the smelter company. It is another distraction for an agency that has been accused of being on terms too familiar with companies it regulates.

Documents related to the meetings have been requested by state Sen. Eliot Shapleigh, D-El Paso, who says his standoff with the agency is emblematic of how it has "been penetrated by polluters."

"The agency has no right to tell the people what the people have a right to see," Shapleigh said. "These are the same arguments the Nixon administration used in Watergate."

Violating open meetings rules can lead to a misdemeanor charge.

The environmental commission and Garcia have declined to comment because litigation is pending, but in April, spokesman Terry Clawson said the agency is "proud of our permitting and aggressive enforcement programs that are leading to a cleaner environment across Texas."

A lawyer for Asarco says Shapleigh is blurring facts.

An agency lawyer has said in an affidavit that the information withheld from Shapleigh relates to legal advice from the agency's assistant general counsel to the commissioners. An agency brief in the open records case says Shapleigh's request is an overreach into the confidential advice offered by a general counsel to the agency commissioners.

But Shapleigh says the environmental agency is stonewalling because it has something to hide. He says it is thumbing its nose at the Legislature by not turning over the documents. And he says the attorney-client privilege argument has no legs because a permit has been issued and because it is a public agency whose lawyers should be acting in the public interest.

The current court case, which technically pits the environmental commission against the attorney general's office, dates to last year, when Shapleigh requested documents regarding smelter owner Asarco using a statute that gives lawmakers access to most agency documents, even those that might not be released to the public. State lawyers representing the environmental agency have logged 825 hours on the case.

The environmental agency released most, but not all, of the documents, arguing that the withheld documents should be protected by attorney-client privilege and that Shapleigh's actions amounted to the meddling of one branch of government into the activities of another.

The state attorney general's office ordered the agency to hand over the documents to Shapleigh, who would be barred from releasing them to the public. The commission then sued the attorney general's office, arguing that Shapleigh is taking a lawmaker's right to query into the nitty-gritty operations of a state agency too far.

Last month, a state district judge in Travis County sided with the attorney general's office; the environmental agency has appealed.

The Asarco permit renewal hearing, in February 2008, brought pressure on the environmental agency.

State administrative law judges and the environmental office's own public interest counsel had recommended against the renewal of an air permit for the massive smelter, which had exceeded authorized levels for emissions of sulfur dioxide, nitrogen oxide and carbon monoxide during operations in the 1990s.

Opposition came from the El Paso mayor, the New Mexico environmental chief and Mexican lawmakers.

In the end, the agency decided to grant the renewal.

But a funny thing may have happened on the way to the public forum: In the months leading up to it, Garcia appeared to hold more than one private meeting with an Asarco representative, according to billing records noticed by Shapleigh in an unrelated Asarco bankruptcy case.

Shapleigh says that is an ex parte meeting, or an illegal meeting with one party without representation of other parties, because a permit had yet to be issued.

An Asarco lawyer, Pam Giblin, said those meetings are not illegal because the permit hearing had shifted past a contested case phase.

"When some people lose, they feel compelled to argue that 'someone must have cheated,' " said Giblin, who wrote a 2005 law review article on rules surrounding ex parte meetings. "The reality in this case is that ASARCO's permit was renewed because the law and the science supported that result."

But under the terms of state law, the case was still arguably being contested because a permit had not been issued.

(Other litigants, including a lawyer for the City of El Paso, met privately with commissioners in the period leading up to the Asarco decision, according to agency visitor log records turned up in an open records request by the American-Statesman. Erich Birch, a lawyer for El Paso, said his meeting with newly minted Commissioner Bryan Shaw was a meet-and-greet that didn't cover details of the Asarco case.)

Early this year, the environmental commission's permit renewal was effectively overturned by the federal Environmental Protection Agency, which demanded Asarco jump through more hoops before reopening its plant.

But with the price of copper down, Asarco decided to withdraw its air permit renewal request, making the whole decision-making by the state agency moot.

By that point, though, Shapleigh had made his information request.

Besides citing attorney-client privilege, the agency argues that granting the request would violate the separation of powers between executive and legislative branches.

"They don't want anybody in Legislature to see what's in those documents," said Shapleigh lawyer Buck Wood. "It's not being done on principle; it's being done because they would be very embarrassing and maybe worse than that if they came out. They want to fight it as long as they possibly can."