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I. Introduction
If a city determines that the state is not doing enough to regulate air pollution, what steps may the city take to ensure that its citizens breathe clean air? This is the central question in BCCA Appeal Group v. City of Houston} a case currently pending in Harris County, Texas. The lawsuit arises out of the continuing battle to improve Houston's notoriously poor air quality. In 2007, Mayor Bill White of Houston, frustrated with the slow pace of progress under the inspection regime run by the Texas Commission for Environmental Quality (TCEQ),2 enacted an ordinance that gave the City of Houston (the City) broad powers to register and inspect polluting facilities within the City and to fine them for violations of the Texas Clean Air Act (TCAA).3 In February 2008, the BCCA Appeal Group (BCCAAG), an organization formed to represent the litigation interests of Houston-area refineries and petrochemical companies, brought suit against the City seeking a declaration that the ordinance was preempted by state law.4 The City has responded that the ordinance is a valid exercise of its home-rule authority to protect the health and safety of the public.5
This Note argues that, in many situations, local government may be the level of government that can address air pollution problems most effectively. When a state agency fails to take sufficient action to protect local populations from air pollution, the local government may be the only entity that can take effective action. How far a city can go in regulating air pollution, however, remains an open question. This Note considers this question through the lens of BCCA Appeal Group v. City of Houston. Part II examines the background of the Houston ordinance, in particular the City's growing discontent with the TCEQ enforcement system. Part III presents the legal arguments on both sides and suggests that the court will likely find that the ordinance is not preempted by state law. Part IV considers the question of municipal regulation of air pollution more broadly and asks how similar state/local preemption disputes might play out in other states.
While there is a tremendous body of literature on the issues of federal/state preemption, comparatively little work has been done on the issues of state/local preemption.6 This discrepancy may...