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Appeals court gets TCEQ records case
January 27, 2010

A state senator's pursuit of documents he believes will lead to a criminal investigation of senior staff members of the Texas Commission on Environmental Quality is now in the hands of an appeals court that heard arguments Wednesday about whether the records should be public.

Written by Gary Scharrer, San Antonio Express-News

AUSTIN – A state senator's pursuit of documents he believes will lead to a criminal investigation of senior staff members of the Texas Commission on Environmental Quality is now in the hands of an appeals court that heard arguments Wednesday about whether the records should be public.

State Sen. Eliot Shapleigh, D-El Paso, wants all the records of top agency officials who met privately with representatives of a copper smelter while the company's application for an operating permit was pending before them.

During a bankruptcy case, lawyers for ASARCO, the smelter firm, submitted a fee-payment request that revealed meetings between senior TCEQ members, including Commission Chairman Buddy Garcia, and ASARCO representatives. Shapleigh calls those meetings “secret and illegal,” coming as they did during the pending air emissions permit application.

“While we do not comment on pending litigation, obviously the TCEQ takes exception to the senator's assessment of the agency and his accusations,” agency spokeswoman Lisa Wheeler said.

Brian Berwick, an assistant attorney general representing the commission, told a three-judge panel of the state's 3rd Court of Appeals that the environmental agency functions with executive authority. That means, he said, the court must respect the separation of powers between the legislative and executive branches of government.

“The Legislature has to keep a respectful distance,” Berwick told the judges during his argument to keep the documents away from Shapleigh.

Separately, however, the attorney general's office has issued an opinion saying the agency had to release the documents. A state district court also has ruled in favor of the senator.

Berwick said later he could not comment on the case.

Shapleigh criticized the agency's claim to executive privilege, a principle that says one branch of government can't interfere with the work of another branch.

“The last executive to hide dirty dealing behind executive privilege was (President Richard) Nixon at Watergate,” Shapleigh said after the hearing. “No agency created by Texans can tell Texans what they have the right to know.”

It could take months for the court to rule.

Doug Ray, a lawyer representing Shapleigh, declined to speculate whether the agency is resisting the release of its documents because of potential embarrassment.

“All I can say is that they are fighting really hard not to turn those documents over,” he said.

“This particular case involves a legislative investigation of admitted ex parte contacts in the granting of a highly disputed permit,” Ray said. “If they win this, all of a sudden everything's going through the lawyers. If you want to hide something from the Legislature — from scrutiny — you just run it through the lawyers and the Legislature can't get it.”

Shapleigh contends he's entitled to the documents under a section of the state's Public Information Act called “the legislative purpose exception,” which requires release of certain documents that the public otherwise could not obtain.

Shapleigh, who called TCEQ a “lapdog for polluters,” said he expects to win on every count.

ASARCO sought the permit to reopen an old copper smelter on the fringes of downtown El Paso. The agency's former executive director, Glenn Shankle, overruled a unanimous recommendation by administrative law judges not to grant it.

Commissioners followed Shankle's recommendation, but the federal Environmental Protection Agency blocked the reopening. Meanwhile, in the wake of the bankruptcy, El Paso is stuck with an estimated $500 million in cleanup cost for the old smelter site, Shapleigh said.

 

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