A measure that would make it harder for landowners to sue polluting industries for property damages appeared to be dead on Thursday.
At issue was an amendment to Texas Senate Bill 875, which would have effectively made it harder to bring civil or criminal charges against a business on the basis of greenhouse gas emissions.
The bill's author, Sen. Troy Fraser, R-Horseshoe Bay, said Thursday that the amendment would be removed in a conference committee, where the House and Senate must reconcile their different versions of the bill.
The House on Tuesday approved a change offered by Rep. Dennis Bonnen, R-Angleton, that extends those legal protections to virtually any industry that undergoes the state permitting process.
The change went unnoticed Tuesday, the deadline for the House to consider Senate bills on second reading.
A bipartisan group of lawmakers worked desperately - and unsuccessfully - to strip out last-minute changes Wednesday, after groups representing consumers, local governments and conservationists began speaking out against Bonnen's amendment.
The amended bill passed the House and returned to the Senate. The provision in question protects industries from lawsuits founded on accusations of nuisance or trespassing.
Those charges, attorneys' groups say, are commonly used to prosecute cases involving industrial pollution.
Several such cases are pending in Denton County, including lawsuits filed against natural gas operators on behalf of the town of Dish, a group of Dish landowners and residents of the Argyle-Bartonville area.
Calvin Tillman, who recently stepped down as Dish mayor and moved from the town because of concerns over gas industry emissions, said he spent Thursday morning on the phone with lawmakers trying to defeat the bill. By Thursday afternoon, Tillman said, he'd received assurances from Fraser's staff that the amendment would be pulled.
Bonnen had rejected notions that his amendment would make it difficult to sue businesses that cause harm to the environment. In fact, he said he believed the change would "help improve environmental quality."
The legal protections would have only been afforded to permit holders that "substantially comply" with their state permits. Because of that, Bonnen said, private industries would have an incentive to abide by the rules.
"You have the ability to broaden anything every day, as long as it's germane," Bonnen said of the Texas legislative process. "We just want to ensure that we don't have frivolous lawsuits."
Kirk Claunch, a Fort Worth lawyer representing landowners in property-damage suits against natural gas operators in Denton and Johnson counties, described the expanded bill as an attack on private property rights.
"I can't think of any piece of legislation that's more un-American than one that deprives a private property owner of the right to defend themselves against abuses from a big oil company or anybody else," Claunch said. "This is law that essentially says we are going to let the oil and gas industry do whatever it needs and to run over anybody that gets in its way without any consequence."
Claunch said the amendment wouldn't have stopped lawsuits he has pending in Denton and Johnson counties, but it would have affected other landowners who want to sue companies whose activities hurt land values.
The Bonnen amendment "essentially gives any polluter who is in compliance with a state or federal permit an affirmative defense to a lawsuit for polluting," said Scott Houston, general counsel for the Texas Municipal League, which opposes the bill.
For example, Houston said, an industrial plant may be allowed under its state permit to release a certain amount of chemicals.
"So if that [release] damaged the neighboring property or a municipal water supply, the city or that person would be able to sue the polluter, but they [the polluter] would have an affirmative defense under the bill that would be very hard to overcome," Houston said. "That would be true even if the polluter knew [the permitted release] wasn't safe."
A House amendment approved Wednesday would preserve the right of the state or political subdivisions, including cities, to sue in such cases.
"That's better for cities and TML, but it still leaves a private neighboring landowner in a bad position," Houston said. "Generally speaking, that's bad for the cities as well."
LOWELL BROWN can be reached at 940-566-6882. His e-mail address is lmbrown@dentonrc.com .
