Bcca Appeal Group, Inc. v. City of Houston, Texas, 496 S.W.3d 1

Background

Texas enacted the Texas Clean Air Act (Chapter 382) and delegated administration and enforcement to the Texas Commission on Environmental Quality (TCEQ); enforcement procedures are set out in the Water Code (Chapter 7).
Houston, a home-rule city, amended its air-quality ordinance in 2007–2008 to: (1) incorporate specific TCEQ rules “as they currently are and as they may be changed,” (2) require registration of facilities to operate within city limits, and (3) make violations of the incorporated TCEQ rules prosecutable in municipal court with fines and criminal consequences.
BCCA Appeal Group (operators of heavily TCEQ-regulated chemical/refining facilities) sued seeking declaratory and injunctive relief, arguing the ordinance is preempted by state law and violates the nondelegation/separation-of-powers principle.
Trial court granted summary judgment for BCCA; the court of appeals reversed and sustained the city on preemption and nondelegation grounds; the Supreme Court granted review.
The Supreme Court considered (1) whether the ordinance’s enforcement and registration provisions are preempted by the Act and Water Code and (2) whether incorporation of TCEQ rules (including future amendments) violates the Texas Constitution’s nondelegation principle.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Houston’s criminal enforcement provisions (municipal prosecutions for violations of incorporated TCEQ rules) are preempted by the Act and Water Code enforcement scheme	Ordinance creates a parallel criminal enforcement regime that bypasses Water Code procedures (notice to TCEQ, 45‑day review, TCEQ discretion to choose administrative/civil remedies) and thus is inconsistent and preempted	City says municipalities may enact complementary enforcement; affirmative defense and cooperation provisions preserve TCEQ role; remedies are cumulative	Held preempted: City may not criminally prosecute in a manner that circumvents TCEQ’s statutorily mandated notice, review, and discretion; enforcement provisions §21‑164(c)–(f) are unenforceable
Whether the city’s registration requirement (and related fees/fines/definition of “facility”) is preempted because it can make lawful, TCEQ‑authorized conduct unlawful without city registration	Registration makes operation unlawful even when a facility holds and complies with a TCEQ permit, thereby nullifying state authorization and is expressly forbidden by Tex. Health & Safety Code §382.113(b)	City frames registration as a ministerial/admin tool to identify sources and fund inspections; argues cumulative remedies language preserves it	Held preempted: Registration provisions (§21‑161, §21‑162, §21‑163, §21‑166) are invalid because they make acts authorized by the Act or TCEQ unlawful unless registered with the city
Whether incorporation of TCEQ rules “as currently are and as they may be changed from time to time” violates the Texas Constitution’s nondelegation / separation‑of‑powers doctrine	BCCA contends adopting future rule amendments delegates core legislative power to the state agency in violation of article II §1	City relies on precedent allowing incorporation of external rules/statutes and on Tex. Gov’t Code §311.027; argues incorporation ensures ongoing consistency with state law	Held valid: Incorporating TCEQ rules and future amendments does not unconstitutionally delegate the city council’s lawmaking power; the incorporation provision (§21‑164(a)) is upheld

Key Cases Cited

S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676 (Tex. 2013) (city ordinance cannot nullify a TCEQ decision; §382.113(b) forbids making lawful state‑authorized conduct unlawful)
Dallas Merch.'s & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (Tex. 1993) (Legislature must express preemptive intent with unmistakable clarity to limit home‑rule power)
City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982) (local regulation is permissible when ancillary to and in harmony with state law)
City of Beaumont v. Fall, 291 S.W. 202 (Tex. Com.App. 1927) (if any reasonable construction preserves both statute and ordinance, courts should do so)
Trimmier v. Carlton, 296 S.W. 1070 (Tex. 1927) (adoption of another act or subsequent amendments by reference can be given effect)
Kousal v. Texas Power & Light Co., 179 S.W.2d 283 (Tex. 1944) (where Legislature delegates a governmental function to municipalities it cannot be redelegated absent statutory authorization)