The Houston Chronicle
www.chron.com

By BILL DAWSON
January 10, 2001

Key local business leaders are considering a lawsuit against the state's new smog plan for Houston, one of several possible legal challenges it may face.

In a letter this week, the approximately 120 member companies of the Business Coalition for Clean Air, or BCCA, were asked if they would be willing to help fund such litigation as a way to seek changes through "further dialogue and negotiation" with state officials.

Coalition Chairman Charles Duncan stressed in the letter that such a lawsuit would not be aimed at excluding anyone from the plan's mandates or at avoiding Houston's legal duty to meet the national health standard for ozone, smog's main component.

Instead, he wrote, the contemplated litigation would seek "to gain more time to work out a technically feasible, economically reasonable" smog plan.

The Texas Natural Resource Conservation Commission approved the plan last month, and it was then submitted by former Gov. George W. Bush for federal approval. Under the terms of a separate lawsuit settlement with environmental groups, the U.S. Environmental Protection Agency must approve the plan by October, or propose its own pollution-reducing blueprint.

The BCCA had unsuccessfully advocated the substitution of less-strict alternatives for several controversial measures in the plan.

Instead of a 90 percent emission-cutting requirement for major industrial plants, for instance, the coalition said an average 75 percent requirement was all that most area plants can feasibly accomplish. The group also opposes the plan's morning ban on the use of diesel construction equipment.

Duncan, who once served as secretary of energy, was out of town and could not be reached for comment Tuesday. A Shell official, whose own letter was included with Duncan's, also could not be reached.

Duncan's letter said the Baker Botts law firm has estimated that about $765,000 would be required for a legal effort.

"If for some reason a trial became necessary, another $400,000 could be required," he wrote.

The BCCA styles itself as "a project of the Greater Houston Partnership," which includes the Chamber of Commerce and is the region's leading business advocacy group.

Duncan's letter said any lawsuit would be carried out through yet another organization, to be called the BCCA Legal Appeal Group. Partnership officials said this new group would not be formally connected to the Partnership itself, although Duncan's letter said the BCCA's steering committee and Partnership's executive committee had approved the fund-solicitation effort.

The BCCA steering committee includes officials of Shell, Exxon Mobil, Dow, Enron and the Partnership.

A document included with the solicitation said TNRCC Executive Director Jeff Saitas had indicated that settlement talks deriving from a lawsuit would be "the only way" his agency would have enough time to consider the technical issues being pressed by the BCCA. It also said EPA regional chief Gregg Cooke had concurred in this view.

Cooke could not be reached Tuesday, but Saitas denied encouraging a lawsuit challenging the plan his agency developed.

In a conversation with a Partnership official, Saitas said, he stated only that "I could understand someone (dissatisfied with the plan) would want to preserve their options, and it wouldn't offend me if a lawsuit was filed."

TNRCC officials are already planning to review new scientific findings and make needed revisions in the plan in the 2003-04 period, he said.

The deadline for Houston's compliance with the ozone standard is 2007.