Affirmative defense… of who?

Each state implements environmental policy differently. Obviously, each state has different regulations that change the way oil and gas operators behave. A key way that state discretion over environmental policy shows up is the Clean Air Act’s  National Ambient Air Quality Standards. The U.S. Environmental Protection Agency (EPA) delegates enforcement to the states, each of which is permitted to tailor implementation through State implementation Plans (SIPs). State-specific SIPs vary, so EPA’s mandated approval, enforcement, and regulation also varies.

During this year’s Texas legislative session the  Texas SIP has been the target of a bill filed by Cesar Blanco (HB 684). Blanco’s bill targets a provision of the Texas SIP known as the affirmative defense. This provision allows oil and gas companies to sidestep fines from emissions if they can prove that the emissions were part of a startup, shut down, maintenance or malfunction of equipment. To avoid the fine, the company has to prove that the emissions events due to those activities were unavoidable. 

Unfortunately, the standard is so low that data from Environment Texas found that in 97% of enforcement hearings on potential Clean Air Act violations, the operator cited this provision. This has become a major loophole via which operators avoid accountability.

For instance this footage of the Waha gas plant, avoided a fine by claiming the two separate emissions events Earthworks documented were both during the start up of equipment. 


           Near the end of the Trump administration, this SIP was challenged on the grounds of “Substantial Inadequacy of Implementation Plan” which resulted in the EPA re-evaluating the provision to determine if it undermines the Clean Air Act. Their findings were published in the Federal Register in February of 2020. The EPA opted to continue to allow companies to sidestep fines by claiming SSMM as a defense. Their logic rested on a few key points, the most important being that since the emissions had to be unavoidable, fining companies would be “inappropriate” and would not result in less emissions. 

           While perhaps accurate under a strict interpretation of the SSMM provision, there is an argument to be had on whether operators really can’t avoid so many large releases of pollution. One of the legal commenters listed in the Federal register argued this very point, saying, “that most excess emissions can be attributed to accidents that could have been avoided through better maintenance or safety inspections.”  

Regardless of whether these emissions really are unavoidable or not, the EPA’s position that they are unavoidable creates tension with the agency’s obligations as the ultimate enforcer of the Clean Air Act. The EPA has acknowledged this, stating in its February 2020 decision, “As outlined in the 2015 SSM SIP Action, the EPA views all emissions that are in excess of applicable limitations as violations. Nevertheless, Region 6 recognizes that imposition of a penalty for sudden and unavoidable malfunctions caused by circumstances beyond the control of the owner or operator may not be appropriate.”

The crux of the argument here rests on the interpretation of “unavoidable. The emissions can be avoided by not allowing activities to take place that violates the Clean Air Act. There is no articulated reason in the decision for why these oil and gas companies have a right to exist that supersedes the Clean Air Act. 

If operators really can’t avoid releasing pollution that, by the EPA’s own admission, violate the Clean Air Act, perhaps the expansion of operations should be halted until necessary innovation and maintenance diligence can address the emissions. Halting operations until all emissions are avoidable will create the financial incentive to innovate. If, even with innovation, adherence to the Clean Air Act is not possible, we need to recognize that this industry is incompatible with clean air and for the health of our people and planet, shut it down. 

The Clean Air Act exists to maintain air quality and provide national standards to protect all Americans. If the oil and gas industry has to routinely exceed pollution limits through “unavoidable” pollution, it’s worth questioning whether operators should continue to receive permits. If the EPA won’t block the TCEQ from continuing to allow the Affirmative Defense, then the Texas legislature can and should. 

HB 684 would dissolve affirmative defense, forcing the TCEQ to stop allowing operators to skirt regulation. Unfortunately, the bill is stuck in committee. It needs to pass. 

Health and the climate don’t care whether an emission came from routine maintenance or a leak, neither should Texas.