Texas and U.S.E.P.A. Square Off on the Use of Citizen-Collected Evidence

In a letter to the Executive Director of the Texas Environmental Commission ("TCEQ"), the EPA has expressed its strong opposition to a bill which will shortly be taken up on the floor of the Texas State Senate. Senate Bill 1361, which was introduced by Senator Todd Staples (R-Palestine), passed out of the State Senate's Natural Resource Committee in late April. It would bar the State from using evidence collected by private citizens in environmental enforcement actions. The bill has the strong support of the State's dairy, poultry, pork and cattle industries, as well as oil and petrochemical interests.

TCEQ has always had procedures in place for accepting environmental complaints from the general public. However, in January 2002, as a result of so-called "sunset" legislation which allowed the TCEQ to continue to operate, TCEQ adopted a Citizen-Collected Evidence Program. This program enables the public to become more directly involved in the collection of information on possible violations of environmental law and it enables TCEQ to use that information in pursuit of enforcement. Evidence may include air samples, videotapes, and photographs. Citizens participating in the program may have to sign an affidavit and may eventually testify concerning the alleged violation. Under the approach formerly used, a citizen would simply file a complaint, often anonymously, which TCEQ must verify. Twelve cases involving citizen-collected evidence have been filed since the inception of the program.

Senate Bill 1361 seeks to stop the program in its course. State farm groups have been concerned that encouraging the use of citizen-collected evidence promotes vigilante justice that infringes on the rights of property owners. Moreover, some allege that the program has burdened the State with frivolous reports of wrongdoing. On the other hand, the Lone Star Chapter of the Sierra Club laments that the bill would "gut" one of the State's major environmental reforms which permits the monitoring of industries, "such as the dairies upstream from Lake Waco within the North Bosque River watershed."

For its part, EPA warns that the Senate Bill 1361 could harm efforts to clean up air pollution in Texas. Federal rules allow for the use of "any credible evidence" in the assessment of environmental compliance - including evidence collected by private citizens. The State, which implements and enforces federal air pollution laws, should follow the same evidence guidelines. EPA noted that the federal government could withhold federal highway funding if the bill blocking the use of citizen-collected evidence becomes law.