The Texas Supreme Court has recently ruled, in Southern Crushed Concrete, LLC v. City of Houston, that a city may not pass an ordinance that effectively moots an air quality permit issued by the Texas Commission on Environmental Quality (TCEQ).

In October 2003, Southern Crushed Concrete, LLC (SCC) applied to the TCEQ for an air quality permit to move an already-permitted concrete-crushing facility to a new location in Houston.  A permit for this type of operation is required pursuant to the Texas Clean Air Act (TCAA).  The rules adopted by the TCEQ under the TCAA prohibit the operation of a concrete-crushing facility within a quarter mile (1,320 feet) of any school and other enumerated land uses, measured from the nearest points of the buildings in question.

While the application for the TCEQ permit was pending, the Presbyterian School Outdoor Educational Center was built near the property that SCC had proposed to use for its facility.  In May 2007, after actively participating and opposing SCC’s application, the City of Houston passed an ordinance requiring concrete-crushing facility operators to obtain a municipal permit.  The location requirements under the ordinance are more restrictive than those imposed by the TCAA and TCEQ rules.  Specifically, the ordinance prohibits concrete-crushing operations within 1,500 feet of a school facility and other enumerated land uses.  Further, the distance is measured from property line to property line, not building to building.

The TCEQ granted SCC’s request for a permit in August 2009. However, when SCC applied for the municipal permit, the City of Houston denied the permit because the concrete operation would violate the city ordinance’s location restriction.

SCC sued the City of Houston seeking, among other matters, a declaration that the city ordinance is preempted by the terms of the TCAA, which provides, that a city ordinance “may not make unlawful a condition or act approved or authorized under [the TCAA]” .

Among other arguments presented by the City, the City contended that the TCEQ permit was only for the purpose of protecting air quality, not for general purposes, and that the city ordinance regulated land use, not air quality.  The Texas Supreme Court refused to recognize any such distinction, stating that if the City’s contentions were true, a city could almost always circumvent the provisions of the TCAA and vitiate a permit issued by the TCEQ by passing an ordinance that purports to regulate something other than air quality.

Although the City has announced that it will continue to oppose SCC’s permit, this ruling by the Texas Supreme Court should provide some assurance that state permits issued pursuant to the TCAA will not be trumped by city ordinances.