On April 17 2023, posts about purported proposed environmental legislation in Texas circulated on social media:
In the tweet above, environmental journalist Amal Ahmed stated that proposed legislation would enable the Texas Commission on Environmental Quality (TCEQ) to “to fine *residents* for complaining too much about facilities that pollute their air/water/land.” Ahmed linked to an article published by InsideClimateNews.org.
InsideClimateNews.org published the article in conjunction with the Texas Tribune on April 17 2023. The Tribune published the piece to its own site on the same date, but each site had its own subheading:
[insideclimatenews.org]: “Opponents say the bill would have a “chilling effect” on citizen reports of air and water pollution.”
[Texas Tribune]: “The bill would impose fines when residents make more than three complaints to the state environmental agency in a year if they don’t result in enforcement action. Critics warn the bill would discourage people from reporting pollution.”
Both news organization alluded to a function of the purportedly proposed bill: that it would discourage or have a “chilling effect” on reports of pollution.
In American legal parlance, the term chilling effect has a specific meaning; Middle Tennessee University’s legal resource, “The Free Speech Encyclopedia,” defined the concept:
Chilling effect is the concept of deterring free speech and association rights protected by the First Amendment as a result of government laws or actions that appear to target expression.
It is closely related to the overbreadth doctrine, which prohibits the government from casting too wide a net when regulating activities related to speech and expression.
The pair of articles about proposed legislation in Texas began the stories with quotes from a woman named Linda Hunter, of Gunter, Texas. After explaining the view from Hunter’s property was “transformed from grand, green pastures to a row of side-by-side concrete batch plants,” causing issues which ranged from light pollution to “dust from the plants [that] stings her eyes and irritates her asthma,” it continued:
Over the past five years, Hunter said, she has made numerous complaints to the Texas Commission on Environmental Quality about dust clouds and water runoff from nearby plants into her property.
Under a bill filed in the Texas Senate, residents like Hunter could face fines if they make three or more complaints to environmental regulators in a calendar year and their complaints don’t result in an enforcement action. Senate Bill 471, filed by Republican Sen. Drew Springer of Muenster, doesn’t specify the amount of the fine but says it would be “less than or equal to the cost” of investigating the complaint.
Under the bill, TCEQ would decide when to pursue fines against residents and the amount of the fine.
Another resident of Gunter was partly quoted in the piece, describing the proposal as an “intimidation tactic”:
Deirdre Diamond, a 40-year-old respiratory therapist and lead advocate for Gunter Clean Air, a local group created to fight pollution from concrete batch plants, called Springer’s bill “an intimidation tactic. People are going to think twice before filing an investigation.”
As indicated in the excerpted portions above, the bill described “three or more complaints to environmental regulators in a calendar year.” A section of the article explained how that threshold would inhibit reports of environmental dangers and pollution, quoting a former TCEQ air quality investigator:
Tim Doty, an independent environmental consultant and former TCEQ air monitoring employee … said residents often file multiple complaints because TCEQ typically takes weeks or months to resolve investigations.
Doty said it can take TCEQ weeks just to send an investigator to check out a complaint, and by then the problem may have disappeared or changed. If Springer’s bill becomes law, that situation would result in a strike against the complaining person, even though the problem they reported may have been a violation had the agency responded faster.
Senate Bill 471 was brief. It read:
A BILL TO BE ENTITLED
relating to the imposition of a fee by the Texas Commission on Environmental Quality for the investigation of certain complaints.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter E, Chapter 5, Water Code, is amended by adding Section 5.1774 to read as follows:
Sec. 5.1774. FEES FOR MULTIPLE COMPLAINTS. (a) The commission shall charge a person who files a complaint a fee before the commission investigates the complaint if, in the same calendar year in which the complaint is filed, the person has filed at least three complaints with the commission for which neither the commission nor a local enforcement official took enforcement action before closing the file on the complaint.
(b)The commission by rule shall establish for each type of complaint a fee amount to be charged under Subsection (a) that the commission estimates is less than or equal to the cost to the commission of investigating most complaints of that type.
(c)The commission may waive the fee required by Subsection (a) for good cause.
SECTION 2. (a) The Texas Commission on Environmental Quality shall adopt the rules required by Section 5.1774, Water Code, as added by this Act, as soon as practicable after the effective date of this Act.
(b)Section 5.1774, Water Code, as added by this Act, applies only to a complaint filed on or after the effective date of the rules adopted under that section. The Texas Commission on Environmental Quality may not consider a complaint filed before the effective date of the rules for the purposes of determining whether to charge a fee under Section 5.1774(a), Water Code, as added by this Act.
SECTION 3.This Act takes effect September 1, 2023.
Bill text between “as follows” and “SECTION 2” was underlined; according to the Texas Legislature Online FAQ, underlining and strikethrough text “indicate changes being made to the text of existing law or an existing constitutional provision,” with underlined text distinguishing new language,, and strikethrough text indicating that the text being removed from existing law. As such, it appeared the text was underlined so the proposed legislation would amend an existing law or policy.
The bill’s page included a “Bill Analysis” [PDF], with a “statement of intent” attributed to its sponsor, Texas state senator Drew Springer (R). Springer’s statement referenced “already resolved” complaints, in contrast with Doty’s explanation of the manner in which environmental reports are processed by TCEQ:
With the population growth in Texas over the last decade, there has been commensurate growth in manufacturing and increased use of precious resources. This use of finite resources calls for appropriate oversight to ensure access to these resources for current and future generations. This bill will provide the Texas Commission on Environmental Quality the ability to protect and enhance access to resources and protect against unnecessary impediments that may arise out of multiple complaints for the same issue by the same individual for which TCEQ has already resolved.
Under current law, there is no cap on the number of complaints filed within a year on the same issue by the same individual for which the TCEQ has already investigated and made a ruling. Therefore, an individual can habitually complain repeatedly about a problem for which TCEQ investigators and the commission have already researched and made a ruling, resulting in tying up inspectors and TCEQ resources from investigating other open cases of fraud, waste, and abuse within the environment. This bill does not add any additional hindrances to conducting business while ensuring the agency’s ability to efficiently enforce the current regulations by requiring the agency to be reimbursed for repeated complaints that result in no environmental infraction by the agency that takes the commission’s time away from ligament investigations.
As proposed, S.B. 471 amends current law relating to the imposition of a fee by the Texas Commission on Environmental Quality for the investigation of certain complaints.
An April 17 2023 article about proposed legislation from Texas state senator Drew Springer (R) claimed that SB 471 would introduce fines if a resident of Texas filed “at least three complaints with the commission for which neither the commission nor a local enforcement official took enforcement action before closing the file on the complaint.” The bill was real and accurately described. According to Texas Legislature Online, Springer’s SB 471 was “left pending in committee” on March 13 2023.