BILL ANALYSIS

 

 

Senate Research Center

S.B. 875

 

By: Fraser

 

Natural Resources

 

3/11/2011

 

As Filed

 

 

 

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

 

In the wake of attempted state and federal climate change regulation across the nation, there has emerged a growing trend of lawsuits in federal court attempting to use public nuisance as a means to regulate greenhouse gas emissions.  This emerging legal tactic of public nuisance claims is anticipated to have a severe detrimental impact on businesses across the United States if left unchecked.

 

S.B. 875 creates an affirmative defense for Texas businesses against frivolous lawsuits citing nuisance and trespass claims in those cases where the company is in general compliance with a state or federal permits involving greenhouse gas emissions.

 

As proposed, S.B. 875 amends current law relating to compliance with state and federal environmental permits.

 

[Note: While the statutory reference in this bill is to the Texas Natural Resource Conservation Commission (TNRCC), the following amendments affect the Texas Commission on Environmental Quality, as the successor agency to TNRCC.]

 

RULEMAKING AUTHORITY

 

This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.

 

SECTION BY SECTION ANALYSIS

 

SECTION 1.  Amends Subchapter F, Chapter 7, Water Code, by adding Section 7.257, as follows:

 

Sec.  7.257.  DEFENSE TO NUISANCE OR TRESPASS.  Provides that a person, as defined by Section 382.003 (Definition), Health and Safety Code, who is subject to an administrative, civil, or criminal action brought under this chapter for nuisance or trespass has an affirmative defense to that action if the person's actions that resulted in the alleged nuisance or trespass were authorized by a rule, permit, order, license, certificate, registration, approval, or other form of authorization issued by the Texas Natural Resource Conservation Commission (TNRCC) or the federal government or an agency of the federal government and:

 

(1)  the person was in general compliance with that rule, permit, order, license, certificate, registration, approval, or other authorization while the alleged nuisance or trespass was occurring; or

 

(2)  the person received enforcement discretion from TNRCC or the federal government or an agency of the federal government for the actions that resulted in the alleged nuisance or trespass.

 

SECTION 2.  Makes application of Section 7.257, Water Code, as added by this Act, to an enforcement action or prosecution, prospective.

 

SECTION 3.  Effective date: upon passage or September 1, 2011.