Hon. Charles R. Rarden, P.E.       Opinion No. M-257
Executive Secretary
Texas Air Control Board            Re:   Effect of the Clean Air
1100 West 49th Street                    Act of Texas, 1967,
Austin, Texas 78756                      (Article 4477-5 V.C.S.)
                                         on the air pollution
                                         control authority of local
                                         governments, and related
Dear Mr. Barden:                         questions.
       Your request for an opinion relating to Article 4477-5,
Vernon's Civil Statutes, has been received. Your first in-
quiry asks:
      "Is a city empowered to contract with an owner
       of land located within the city's jurisdiction
       whereby the city can require the owner to meet
       higher air control atandards than are set by
       the regulations of the Texas Air Control Board,
       whether under the Texas Clean Air Act, under
       Article 1175 (lq), under Its general contract-
       ing'power, or under any other authority?"
       When read as a whole, Article 4477-5 evidences the clear
intent of the Legislature to set a standard for permissible and
non-permissible air pollution on a state-wide basis. This thus
becomes the public policy of the state. There is no authority
whatever given by the statute for a local government, (as de-
fined in Section 13(A), of Article 4477-5 V.C.S.), to vary from
this standard. When the Clean Air Act of Texas, 1967, is read
as a whole, local governments are given only power to make re-
commendations to the Texas Air Control Board concerning such
standards, together with the authority to enforce state stand-
ards where the state has entered the field. While a city may
ordain reasonable standards of airpurity where there Is no
state rule, under Article 4477-5, the city, if It so desires,
is required to seek a more rigid rule or standard from the
Texas Air Control Board.for Its particular metropolitan area
where the Board has acted and the city or town wants a more
stringent rule. Counties may only enforce the Clean Air Act of



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Hon. Charles R. Barden, Page 2 (M-257)


Texas, 1967, or such rules as are adopted by the Texas Air
Control Board purueant thereto. Sec. 15(C), Article 4477-5.
Cities may not pass any ordinance which conflicts with this
state law, nor may they contract with a landowner for a more
stringent standard of air purity than that expressly per-
mitted by Article 4477-5, the public policy of the state.
40 Tex. Jur.2d, Municipal Corporations, page 110, Sec. 420.
They cannot make contracts which will embarrass or control
their legislative powers and duties in this respect. 38 Am.
Jur. 181, Mun. Corps. Sec. 505.
       The next four questions asked by you are as follows:

                            1.
      "Is the governing body of a city-county health
       district established under Article 4447a em-
       powered to enact an air pollution control ordi-
       nance or regulation and enforce it uniformly
       throughout the area of Its jurisdiction, or is
       the health district limited to enforcement of
       the general prohibition against air pollution
       In the Clean Air Act of Texas and enforcement
       of the air control regulations established by
       the Texas Air Control Board?

                            2.
      "Are a county and a city which enter Into a co-
       operative agreement under Section 13(E) of the
       Texas Clean Air Act empowered to establish in
       the agreement, or by separate but uniform ordl-
       nances and Commissioners' Court orders, or by
       some other means, air pollution control etand-
       arde for the areas over which the parties have
       jurisdiction, and to enforce them uniformly
       throughout such areas, or would the parties be
       limited to enforcement of the prohibition
       against air pollution In the Texas Clean Air
       Act and enforcement of the air control regula-
       tions established by the Texas Air Control
       Board?




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Hon. Charles R. Barden, page 3 (M-257)




      "If the governing body of a city-county health
       district Is emoowered to enact an air pollution
       control ordinance and enforce it uniformly
       throughout the area within the jurisdiction of
       the district, or If the parties to a clty-
       County cooperative agreement entered Into under
       Section 13(E) of the Texas Clean Air Act are em-
       powered to provide for the establishment and
       .unlformenforcement of air pollution control
       standards for the areas over which the parties
       have jurl.?dlctlon,may the ordinance or stand-
       ards.provlde for more restrictive air pollution
       standards, criteria, levels, and emission limits
       than are established by regulations of the Texas
       Air Control Board?
                        4.
      "If the governing body of a city-county health
       district or If the parties to a city-county co-
       operative agreement entered Into under Section
       13(E) of the Texas Clean Air Act are not em-
       powered to enact an ordinance or establish stand-
       ards on air pollution control enforceable uni-
       formly throughout the areas over which they have
       jurisdiction, may the Texas Air Control Board
       adopt a special regulation for such areas under
       the rocedures authorized in Sections 6(B) and
       13(EP of the Texas Clean Air Act; and if so, are
       such local governments empowered to enforce the
       special regulation uniformly throughout the areas
       over which they have jurisdiction?
        The Texas Clean Air Act enforcement provisions ermlt
actions by "local government" as defined in Section 13PA) of
Article  4477-5, and such definition 'means an Incorporated
city or town whether or not it has a home rule charter or a
county whether or not it has a home rule charter." The gower
to ordain is given on1 to "an incorporated city or town .
Section 15(B) Article &+77-5. A district created pursuant to
a contract or a mutual agreement of a city and county under




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Hon. Charles R. Barden, Page 4 (M-257)




the provisions of Article 4447a has no rule-making powers,
nor has it the power to enforce either the State law or
Texas Air Control Board rules (Art. 4477-5) or regulations,
or to enforce ordinances made by a city or town. Even
though it be assumed that Section 4 and Section 6 of the
statute permit transfer of functions and discontinuance of
the health department of a city or county, this bare author-
ity provides no standards or guides which are necessary to
support a grant of legislative authority. Clark v. Brlscoe,
200 S.W.2d 674, (Tex.Clv.App. 1947, no writ‘). Such a health
district could not enact ordinances or reGulationa, nor
could It sue in court, since it Is not a local government"
as defined by the Clean Air Act of Texas, 1967; consequently
question 1 must be answered in the negative.
       Turning to question 2, it Is our opinion that ordl-
nances enacted by a home rule city must be enforced through
its own processes In the absence of more specific authority
given to a county or district. Cities or counties may not
by agreement enforce uniform rules or ordinances, but each
must enforce the statute. A city ordinance must be enfor-
ced by the city.
       As noted above, we have herein held that the govern-
ing body of a city-county health district IS not empowered
either to enact or to enforce air pollution ordinances.
Therefore, In answer to the first part of question 3, a city-
county health district could not provide for either more Or
less restrictive standards than those established by the
Texas Air Control Board.
       With reference to the second part of your question 3,
asking If a city ordinance can be more restrictive than
Article 4477-5, or rules adopted pursuant thereto, the Texas
Air Control Board under Section 15(A) of Article 4477-5 is
the "principal authority" in the state for settin s;",;f;fzs
regarding control of air pollution. Section 15(C7,
4477-5 provides, in part, as follows:
      "Any ordinance ...shall be consistent with the
       provlslons of the Act and the rules, regula-
       tions or orders of the board, and shall not
       make unlawful any condition or act permitted,
       approved or otherwise authorized pursuant to
       this Act, or the rules, regulations or orders
       of the board."



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Hon. Charles R. Rarden, Page 5 (M-257)




       Thus, when the State of Texas, acting through Its
Texas Air Control Board, has entered the field, a city or-
dinance cannot be less restrictive or more restrictive
than the state law, rule or regulation as to air pollution.
       In answer to question 4, it is our opinion that the
Texas Air Control Board can lawfully adopt rules or regula-
tions or standards necessary to abate air pollution In a
particular local area, but such would be reviewable by the
courts as to reasonableness. Section 4(A),  (5) and Section
6(B), Article 4477-5. Concerning enforcement of the Texas
Air Control Board rules for such an area, we hold that a
"local government" (a city or a county), Is authorized to
enforce the same as an agent of the state performing a
governmental function. Walker v. City of Dallas, 278 S.W.
2d 215, (Tex.Clv.App., 1953, no writ).
       In your final Inquiry you ask:
      "May a special regulation adopted by the
       Board of the type referred to In question
       5 be either more restrictive or less re-
       strictive than a general statewide regula-
       tion on the same subject if the special
       regulation otherwise is adopted In accord-
       ance with the procedures and meets the
       standards and guidelines specified In the
       Texas Clean Air Act (such as In Sections
       4(A) (5) (b) and 6(B) of the Act)?"
       The provisions of Sections 4(A), (5), and 6 of Article
4477-5 can be more lenient or more restrictive than a general
or statewide rule or regulation, for under these sections many
standards must be considered. Section 6(~) states, in part,
as follows:
       "A rule ....adopted by the board may differ
        In Its terms and provisions as between partl-
        cular conditions, as between particular sour-
        ces and as between particular areas of the
        state.'
       The Texas Air Control Board is required to consider the
he,althand physical property of the people; whether the source
of pollution has a social and economic value; the Priority Of




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Hon. Charles R. Barden, Page 6 (M-257)




location in the area; and whether it Is technically practi-
cable and reasonable from an economic standpoint to eliminate
air emmlssion from a particular source. These broad conslders-
tions Indicate that particular areas of the state may be classi-
fied in an Industrial area for special treatment and in some
Instances those who choose to reside there must decide whether
they will condone more pollution than they would encounter in
a virgin area of Texas, where air emissions would be of no
economic value to the community, state or nation. This func-
tion of the Texas Air Control Board requires a constant study,
and re-study. Such a function Is a continuing process of
achieving economic stablllty'coupled with air which Is healthy
and which, in most instances, is not offensive to~the senses.
       Section 1 of the Clean Air Act of Texas, 1967, makes it
abundantly clear that "economic development of the state' and
'operation of existing Industries" are to be weighed with
"health, general welfare and physical property of the people"
In adoption by the Texas Air Control Board of ambient air
criteria, or in controlling or abating air pollution. In
practical effect, regulations over the state for air quality
could not be the same or as strict in metropolitan areas of
industrial production as regulations in an area which has nc
industry. Allregulations and all orders of the Texas Air
Control Board are subject to review as to reasonableness by
a court and may be declared Invalid if the Board has not con-
sidered the area and the real economics of its abatement
action.

                       SUMMARY

          The City may not contract with a landowner
          to require the landowner to meet higher air
          control standards than those set by the
          Texas Air Control Board or Article 4477-5,
          V.C.S. The Texas Air Control Board may law-
          fully adopt special rules, regulations or
          orders for areas of heavy air pollution but
          these rules are subject to court review as
          to reasonableness and abuse of discretion.
          Only cities, towns and counties acting aa
          'local governments' may enforce the Clean




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Hon. Charles R. Barden, Page 7(&257)




            Air Act of Texas; and cities or towns
            may adopt local ordinances only so long
            as such conform to state law where the
            state has entered the field.




                                           Qeneral of Texas'



Prepared by Roger Tyler

APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
James Swearingen
Malcom Smith
John Banks
John Grace
A. J. CARUBBI, JR.
Executive Assistant




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