State Sen. Eliot Shapleigh said that the Texas Commission on Environmental Quality is trying to set a precedent that would keep the public and lawmakers from accessing records that shed light on its operations.

He said at a news conference today that the issue began with a request by him for records from the TCEQ and intensified when the TCEQ was ordered by the Attorney General's office to release the records. [link to archived news conference]

The TCEQ responded by filing a lawsuit against Attorney General Greg Abbott. [View the AG opinion and lawsuit via the links below this article]

A TCEQ spokesman, citing pending litigation, declined to comment on the issue.

However, the agency lawsuit, filed May 29, states that the state Constitution, Article 2, Section 1, embodies a separation of powers, and that "for a member of the Legislature to have access to agency documents like the ones involved in this lawsuit would constitute excessive interference."

Shapleigh said in an interview earlier today that the TCEQ is using tortured reasoning to hide a simple fact -- that the agency consistently has colluded with polluters, as opposed to holding them to account. Most recently, he said, the billing records filed by the law firm Baker Botts in its representation of Asarco during the contested permit process show some of the activity that took place. [npt april 24, 2008]

According to those billing records, which account for more than $10 million for work and almost $700,000 in expenses from November to Feb. 29, include three entries that describe a Dec. 3, 2007, meeting with TCEQ Commissioner Buddy Garcia, and Nov. 19 and Jan. 21 meetings with an unnamed commissioner.

The city of El Paso cited two portions of state law -- Texas Government Code 2001.061 and Texas Administrative Code Title 30, Section 80.15 -- that appear to forbid such "ex parte" communications during a contested case. Asarco has denied that the meetings violated the state law because the company claims the contested case portion of the process already had ended.

Immediately following the Feb. 13 meeting at which TCEQ commissioners approved Asarco's air pollution permit, city of El Paso officials raised questions about the process. The commissioners adjourned for about 10 minutes, and when they came back, the order allowing the permit already was written. [npt feb. 13, 2008]

"When we saw a 10-page order suddenly appear and the commission chairman read from it, it was clear that order already had been circulated, had been vetted in ex-parte meetings," Shapleigh said. "Later, the Baker Botts bankruptcy billing confirmed what was obvious."

Shapleigh said aside from the question of TCEQ collusion with Asarco, an important issue is at stake: "Essentially the legal argument goes to the heart of American democracy, who is the sovereign here, the people or the agency."

He said that "when the AG says every single requested item is an Open Records Act item and the TCEQ wants to go file a lawsuit in district court in Travis County to hide them you have to ask the question, 'What's the big secret?'

"What is unusual about their argument is that it bars any open records by anyone, whether they are private citizens or governmental agencies."