Preemption: Texas Clean Air Act Preempts City Ordinance That “Nullifies” State Permits

Monday, March 18, 2013 12:00 am
 
Land Use Law Report, Volume 41, Number 3
 

A City of Houston ordinance that imposed location restrictions on concrete-crushing facilities was preempted by the Texas Clean Air Act because the ordinance prevented CAA permit holders from building their concrete-crushing facilities.

Facts: A Texas company, Southern Crushed Concrete, LLC (Southern Crushed), sued the City of Houston over an ordinance that restricted Southern Crushed from building a concrete-crushing facility. Southern Crushed alleged that the city ordinance was preempted by the Texas Clean Air Act (CAA), which prohibits local ordinances from "mak[ing] unlawful a condition or act approved or authorized under [the CAA] or" by the Texas Commission on Environmental Quality (Commission).

In 2003, Southern Crushed applied for an air quality permit from the Commission. Southern Crushed sought to move an already-permitted concrete-crushing facility to a new location. The City opposed the application and, in 2007, passed an ordinance that required concrete-[..]

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