The high, dusty plains of West Texas have plenty of stories of legendary outlaws – bank robbers and bandits who struggled to stay one step of county sheriffs and the Texas Rangers. In modern times, some of the region’s most notorious lawbreakers include oil and gas companies who dump pollution into the air with no concerns about law enforcement closing in on them.

“The Polluter’s Playbook,” an Environmental Integrity Project (EIP) report issued March 23, reveals that 17 out of the 20 worst repeat offenders in the state for air pollution released during industrial accidents or “upsets” are in the Permian Basin of West Texas, the world’s most prolific oil-producing region.

From 2017 to 2022, these repeat offenders in the Permian released 70.9 million pounds of illegal air pollution during 3,644 breakdowns and other unexpected shutdowns, startups, and other unpermitted emissions events reported to the state.

This pollution is partly to blame for worsening air quality on a regional level, as documented by air pollution monitors in Carlsbad, New Mexico, only 67 miles west of the Texas border. The monitors in the small town of Carlsbad sniff out ozone, a key component of smog, and often show air pollution levels that rival those seen in major cities such as Dallas-Fort Worth and Houston.

Smog is a major public health concern because it can trigger asthma attacks and aggravate chronic conditions such as bronchitis and heart disease. Texas regulators do not operate any ozone monitors in West Texas, despite the massive industry presence close to cities such as Midland-Odessa and Lubbock and the thousands of releases of illegal air pollution.

The Texas Commission on Environmental Quality (TCEQ) rarely fines the repeat offenders in West Texas or anywhere else. Of the 17 Permian Basin sites with the worst chronic emissions, only seven of them faced fines over the six-year period studied in the EIP report.

The largest fine of $35,758 went to Occidental’s Mallet CO2 Recovery Plant, a gas processing plant near the small town of Sundown, which released more than 1 million pounds of emissions during 150 pollution episodes from 2017 to 2022.

This fine was a drop in the bucket for Occidental, one of the largest American oil companies. Occidental announced $1.7 billion in net income in the last three months of 2022 alone and recently spent $3 billion buying back its stock from shareholders to pump up the value of its stock.

“The penalties do need to be stiffer for this kind of stuff,” said Mike Zavada, professor and chair of the Department of Geosciences at the University of Texas Permian Basin in Odessa. “They’re not taking it seriously. In fact, it’s built into the prices of production and everything else.”

The pollution detailed in the EIP report doesn’t even capture the full scope of the air pollution these plants emit. For example, it does not include the pollution the plants are allowed to emit on a routine, daily basis via permits issued by (TCEQ). As stated earlier, the extra pollution discussed in the report comes only from what the TCEQ labels as unexpected, unforeseen pollution episodes. The TCEQ terms for these events are “upset emissions” or “emissions events.” These events are illegal because they are beyond what plants are allowed to release according to their Clean Air Act permits.

Statewide, polluters reported 21,769 of these illegal emissions events from Sept. 1, 2016, to Aug. 31, 2022. Of those, 1,634 lasted longer than one week. However, the TCEQ only designated 119 of those episodes as “excessive,” which triggers a requirement for companies to analyze the root cause of the problem and submit plans to prevent similar pollution releases in the future.

This gap – between the 1,634 events lasting longer than a week, and the 119 deemed “excessive” by the state – illustrates how Texas is not enforcing its own requirements, because any emissions event that lasts longer than a week is, by definition, excessive.

Despite the TCEQ’s legalese that implies thousands of emissions events statewide were unforeseen and unexpected, the report details how this pollution is – in reality – routine and business-as-usual for many industrial facilities. Often, the operator of a gas processing plant or similar facility will claim they can adhere to an unrealistically low pollution limit. Then they emit far more than allowed, while claiming this pollution is “unexpected” – and therefore, exempt from enforcement actions.

One clear example is Chevron’s McElroy Section 199 Emergency Flare in Crane County, south of Odessa in West Texas. The flare’s permit allows it to emit less than 0.01 tons of sulfur dioxide per year, only enough for the pilot light needed to keep the flare lit. In practice, the flare emitted between 144 and 777 tons of sulfur dioxide each year since 2017, including for burning large amounts of gas.

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The TCEQ allows polluters to avoid accountability for these pollution releases via a legal mechanism called the “affirmative defense.” The affirmative defense essentially means that a company claims it should not be held responsible for an unpermitted pollution release because the event was unpredictable and unpreventable – and promptly reported by the company to the state. The TCEQ granted “affirmative defense” claims between 86 and 89 percent of the time that companies claimed it  from 2017 through 2021, according to a recent report by an oversight agency called the Texas Sunset Advisory Commission.

The affirmative defense is one of many practices that led the Sunset Advisory Commission to label the TCEQ as a “reluctant regulator.” During a March 23 hearing before the Texas House Environmental Regulations Committee, at least 15 Texas residents urged the committee members to force the TCEQ to stop allowing exemptions and loopholes like the affirmative defense and crack down on polluters more consistently and effectively. This includes not only West Texas, but in the much more heavily populated areas along the Houston Ship Channel, where refineries and petrochemical plants also frequently report illegal air pollution releases.

“I know my community is dying from land, air, and water pollution,” said Dolores McGruder, a resident of Houston’s heavily industrialized Fifth Ward who told the committee about multiple family members who had died from cancer. “The Legislature could go much further with significant reform of the TCEQ.”

Erin Chancellor, who became the TCEQ’s interim executive director in December after working as chief of staff for the Dallas office of the EPA under the Trump Administration, disputed the “reluctant regulator” label during the hearing.

“We do quite a bit to ensure that environmental laws and regulations in the state of Texas are adhered to,” Chancellor said, later adding that “the only reluctance I would have is going outside of our jurisdiction that we've been granted by the Legislature.”

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The Texas Legislature is considering a pair of bills that would reform some aspects of the TCEQ, including requiring the agency to post more information about pending permits online and hold online instead of in-person public meetings. The bills, SB 1397 and HB 1505, would also increase the maximum fine for repeat violations from $25,000 to $40,000, though the agency rarely imposes maximum penalties. The penalty for an initial violation would remain at $10,000.  

Representatives of the Texas Chemical Council and the Texas Association of Manufacturers, both industry trade groups, told committee members that they support the proposed penalty increase, but not for what they labeled “minor violations.” Shea Pearson, general counsel for the Texas Chemical Council, said such violations are “often clerical in nature and have no impact on human health and the environment.”

However, seemingly small violations can often precede a major disaster. One example happened March 22, when an explosion and massive fire broke out at the INEOS Phenol plant in Pasadena, an industrial area east of Houston. The TCEQ logged 113 violations at the plant since 2019 but only fined the operator $16,563 over the past five years, with $3,312 of that deferred if the operator completed the terms of the TCEQ’s enforcement order.

Luke Metzger, executive director of Environment Texas, urged committee members to maintain language in the bill that would allow the TCEQ to issue $40,000 fines.  

“They (the TCEQ) rarely come anywhere close to hitting this statutory maximum,” Metzger said. “They already have broad discretion to apply these penalties, please don’t tie their hands any further.”  

Metzger also touched on the role of the affirmative defense in shielding polluters from accountability.  

“TCEQ too often just rubberstamps those affirmative defenses,” he said. “We need to eliminate the affirmative defense altogether.”  

Environmental Integrity Project Senior Attorney Gabriel Clark-Leach is lead author of "The Polluter's Playbook" and contributed research to this report.

Lead photo: Flaring at a well pad in the Permian Basin. Photo by Blake Thornberry.