Texans Written Out of the Process by SCOTX Rule Changes

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File under “hugely important issue to everyday Texans that most of us know nothing about.” Three prominent pro-citizen activists have been working hard to draw attention to a proposed rule change by the Supreme Court of Texas that would actually increase the ability of anti-consumer special interest groups to influence legislation and regulation here in Texas. SCOTX has proposed allowing lobbyists and special-interest groups to meet privately with state agencies before companies file applications for permits. In other words, Big Money will be able to enter through the back door and make sure they get their approval before the public even knows what's going on.

This comes at a time when lax regulation and enforcement have led to an unprecedented oil spill in the Gulf of Mexico, when TCEQ has all-but-refused to follow EPA standards, and when state environmental agencies are refusing court orders to provide lawmakers with documents about the very back-door deals the SCOTX is trying to make fair game.

Three of the state's leading authorities on environmental and energy issues–Ken Kramer, director of the Lone Star Chapter of the Sierra Club, Jim Marston, founding director of the Texas office of Environmental Defense Fund, and Tom “Smitty” Smith, Director of Public Citizen's Texas office–are calling attention to this outrage in the hopes of educating Texas citizens about this potential travesty.

This change will have terrible consequences for the citizens of Texas who care about regulation and enforcement, as special interests will be given even more control over the process. By the time the public finds out about regulatory hearings and opportunities to provide input, the decisions will have already been made behind closed doors. We the people don't even have a chance to weigh in. SCOTX is trying to take public accountability and transparency and replace it with back-room deals that take place behind the scenes, outside of public view.

The following public statement on this issue, written by Marston, Smith, and Kramer was sent to BOR by folks involved in this process, emphasis mine:

Regular Texans Getting Written Out of the Process by Back Room Rule Changes

As reported by Mary Alice Robbins in this week's Texas Lawyer magazine, the Texas Supreme Court has proposed a rule change that would undo a Professional Ethics Committee opinion that restricted secret contacts by lawyers with state agency decision-makers. Specifically, the court's current proposal would allow lawyers for polluters and other industry representatives to have unrestricted access to key agency personnel at any time before the actual filing of an application with the agency.

The public participation process in Texas is already flawed – recently the Environmental Protection Agency proposed a rule to disapprove of the Texas Commission on Environmental Quality's (TCEQ) public participation program,

saying it “provides inadequate opportunities for the public to review permit decision in Texas, as compared with public participation opportunities provided by other states.” We cannot afford to take another step backward.

In Opinion No. 587, the court's own ethics committee had ruled that the current ethics rules for lawyers prohibit such “ex parte” communications with agency decision-makers. The court's proposed rule change would completely reverse

that ethics ruling.

The potential adverse impacts on the public and consumers are immense. Lawyers for polluters, electric companies, insurers, and other corporate interests would have free access to those agency deciders to help “grease the skids” – before the public even knows what's coming.

It's pretty easy to win a completely one-sided argument. If the public doesn't know what a lawyer/lobbyist is getting ready to file, and doesn't know about the pre-filing secret meetings and contacts, the process can be just that one-sided and unfair.

We need more ethics for lawyers, not less, and more protection of the Gulf of Mexico and Texas air and water, not less.

For too long the Texas Supreme Court rule-making process has operated in obscurity. The rules have been written by lawyers, for lawyers and for their powerful clients. Court members and hand-picked lawyers have been writing these proposals over the past seven years-the public has not been invited to participate.

This year, other rule proposals also threaten public interests. For example, Houston Chronicle columnist Rick Casey recently (4/29/10 “Coddled Lawyers Complain”) described how another rule change proposed by the Texas Supreme Court would make it easier for Texas lawyers to charge unreasonable fees and unreasonable expenses. (By contrast, the corresponding American Bar Association model rule flatly prohibits both unreasonable fees and unreasonable expenses.) Casey also explained how the court recently refused to adopt a rule recommended by its own committee to require a lawyer to tell a client if the lawyer is uninsured.

The point is that we Texans need to pay attention to what the Texas Supreme Court is doing with these rule changes. The rules can affect us just as much as the court's written opinions. Unless the Texas Supreme Court changes its mind, these anti-public/anti-ethics rule changes are likely to go into effect at the end of the year. (Three members of the court are up for election in November.) Between now and then, Texans should let the court know that it is headed in the wrong direction. The court should protect the public from back room deals and lobbyist influence, not open the doors of our state agencies for more of those abuses.

It should come as no surprise that the SCOTX is entirely populated with Republicans. They've shown a horridly anti-consumer, anti-citizen bias over the past years, routinely overturning decisions in order to bolster special interests. In Texas these days, it seems like you need deep pockets and special friends to get a fair shake these days, even on our supposedly-impartial statewide civil court.

Just getting good folks elected to office isn't always enough. We need to hold our state agencies accountable, and make sure that they're focused on doing their jobs and serving all of the people of Texas, not just those with the deepest pockets.  


About Author

Katherine Haenschen

Katherine Haenschen is a PhD candidate at the University of Texas, where she studies political participation on digital media. She previously managed successful candidate, issue, voter registration, and GOTV campaigns in Central Texas. She is also a fan of UCONN women's basketball and breakfast tacos.

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