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Click here for the full text of this decision FACTS:Under the federal Clean Air Act, states are required to submit state implementation plans detailing the steps they will take to meet national ambient air quality standards under the Clean Air Act. Failure to submit a plan could result in sanctions, such as withholding federal highway funds, implemented by the Environmental Protection Agency. The Texas Commission of Environmental Quality and the Texas Transportation Commission submitted a SIP for reducing ozone levels in the eight-county Houston-Galveston area. Among the proposals was the “environmental speed limit,” which lowers highway speeds in Brazoria County to 55 mph. Another proposal would impose vehicle inspection and maintenance rules for vehicles registered in Brazoria County. And a third proposal limits the use of commercial lawn-maintenance equipment to the afternoon hours, beginning in 2005, between April 1 and Oct. 31. Brazoria County challenged the proposals, alleging that they exceed the authority granted in the Texas Clean Air Act and the Texas Transportation Code. Further, the county argues they do not comply with the procedural requirements of the Texas Administrative Procedure Act. The trial court ruled for the state defendants. The county appeals. HOLDING:Affirmed. The court first addresses the Transportation Commission’s authority to adopt the environmental speed limits. The court finds that the commission’s authority to alter existing speed limits was ratified by the 2003 legislature. The legislature adopted prima facie speed limits for various types of roads and highways and granted the commission authority in 1995 to modify them by following certain procedures. Under this general authority, the commission adopted rules and procedures for setting regulatory speed zones and environmental speed zones. Part of the procedure for setting up environmental speed zones is to consider results from engineering and traffic investigations conducted by TCEQ. The legislature did not change its authorization statute in 2001, after the commission first issued minute orders regarding environmental speed limits, but in 2003, when it did announce some modifications to the authorization statute, it also specifically stated that the amendments did not apply to the speed limits already approved by the commission. “We hold that by using this language to limit the scope of the 2003 amendment, the legislature effectively ratified the Transportation Commission’s already existing environmental speed limits and acted only to prevent the Transportation Commission from imposing any environmental speed limits in the future.” The court next turns to whether the Transportation Commission was allowed to consider federal funding cuts or sanctions as part of its justification when revising the procedure for setting speed limits. The court again points the legislature 2003 ratification to confirm that the commission could consider cuts and sanctions. Then, the court reviews whether the commission impermissibly delegated its authority to alter speed limits to TCEQ. The court finds that TCEQ was responsible for requesting, investigating and designing an environmental speed zone, but that the information was evaluated the Texas Department of Transportation, and final authority for its adoption and approval remained with the Transportation Commission. “TCEQ served in an advisory capacity regarding [environmental speed limits] and had no direct authority to alter prima facie speed limits.” The court rejects the county’s contention that the environmental speed limit minute orders are rules subject to the rulemaking requirements of the Administrative Procedure Act. The court finds that the Legislature specifically contemplated a different set of instructions under which the Transportation Commission would operate. The commission is expressly authorized to issue minute orders in a variety of circumstances, just as it is expressly expected to use more elaborate procedures for adopting rules. By allowing orders to be expressed in commission minutes, it is clear the legislature did not intend for those orders to be rules under the APA. The court then turns to whether TCEQ had authority to adopt rules on inspection and maintenance rules for Brazoria County; the county claims the agency has only that power with respect to Dallas, Tarrant, El Paso or Harris counties. The court finds the rules. The statute the county says TCEQ’s geographic authority in fact mandates action in those geographic areas, the court rules, while leaving the agency with discretion to act in other geographic areas in a manner consistent with federal law. The court does not find the inspection and maintenance rules unsupported by justification just because they allow for some rules to be phased in or because Brazoria County, unlike some other counties, has not been given a chance to “opt out.” The court observes that 341 interested parties, from local government officials, to industry representatives and the general public, were part of the rulemaking process in this case. TCEQ’s justification for its phase-in rules have been well documented, and it includes tackling heavily polluted areas first to avoid federal sanctions, but also gives the agency enough time to modify strategies where necessary before the national deadline of Nov. 15, 2007. As for the lack of an opt-out clause, the court notes that the counties that were given opt-out clauses were counties whose emissions are a fraction of what Brazoria County’s are. The court rebuffs the county’s claim that TCEQ was required to perform a regulatory-impact analysis before adopting the inspection and maintenance rules. An analysis is necessary only when the result of the rule would exceed a standard set by federal law. TCEQ was attempting to meet, not exceed, the federal standard. At last, turning to the lawn-maintenance rules, the court again points out that the rules were promulgated in order to comply with federal law. They are exempt from any legislative restriction on using a particular method to control or abate pollution. And, again, the TCEQ was not required to conduct a regulatory-impact analysis because the rule is attempting to meet, not exceed, the federal standard. The court adds that the trial court did not abuse its discretion by denying the county’s request for attorneys’ fees. OPINION:Law, C.J.; Law, C.J., B. A. Smith and Patterson, JJ.

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