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Texas Supreme Court Declines to Reconsider Air Act Preemption Decision

On June 14, 2013, the Texas Supreme Court declined to reconsider an earlier ruling that the Texas Clean Air Act ("TCAA") preempts a Houston ordinance specifying location requirements for concrete-crushing operations.

In February of this year, the court ruled in favor of a company that had obtained an air quality permit from TCEQ to move a concrete-crushing facility to a new location but had been denied a municipal permit by the City of Houston pursuant to a local ordinance. The court found that the ordinance was preempted by a provision of the TCAA stating that "[a]n ordinance enacted by a municipality . . . may not make unlawful a condition or act approved or authorized under [the TCAA] or the [TCEQ’s] rules or orders." Tex. Health & Safety Code § 382.113(b). It interpreted this language as demonstrating "the Legislature’s clear intent that a city may not pass an ordinance that effectively moots a [TCEQ] decision." (Opinion at 6.)

The case is Southern Crushed Concrete, LLC v City of Houston, No. 11-0270 (Tex.).