Case Study of Municipal Air Pollution Policies: Houston's Air Toxic

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Case Study of Municipal Air Pollution Policies: Houston’s Air Toxic Control Strategy under the White Administration, 2004−2009 Rebecca J. Bruhl,*,†,∥ Stephen H. Linder,‡ and Ken Sexton§ †

Division of Epidemiology, Human Genetics & Environmental Sciences, The University of Texas School of Public Health, 1200 Herman Pressler Street, Houston, Texas 77030, United States ‡ Institute for Health Policy, E-1023, and Division of Management, Policy & Community Health, The University of Texas School of Public Health, 1200 Herman Pressler Street, Houston, Texas 77030, United States § Division of Epidemiology, Human Genetics & Environmental Sciences, The University of Texas School of Public Health, Brownsville Regional Campus, Fort Brown Road, RAHC, Brownsville, Texas 78520, United States S Supporting Information *

ABSTRACT: Local government has traditionally played only a minor role in regulating airborne toxic pollutants. However, from 2004 to 2009, the City of Houston implemented a novel, municipality-based air toxics reduction strategy to address what it considered unacceptable health risks and an insufficient regulatory response from state and federal agencies. The city’s effort to exert local control over stationary sources of air toxics represents a unique opportunity to study the selection and performance of policy tools and to consider their ramifications for the design of future air pollution control strategies. The results of this case study demonstrate the potential for municipal government to use a combination of cooperative and confrontational policies to stimulate responses from private industry and state and federal regulators as part of a strategy to address local air quality problems.

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INTRODUCTION

Despite the legal and regulatory constraints facing municipalities, local government potentially has more power than one might first realize. For example, local government can use persuasive tools such as public disclosure and negotiated cooperation with individual pollution sources to advance environmental protection.3 Municipalities can also spur greater state and federal government responsiveness by using a variety of “prods” and “pleas.”5 The need for a tailored approach to air toxics control is readily apparent in Houston, where hundreds of chemical and refining plants sit in close proximity to more than 2 million people. Because of the high density of diverse pollution sources, state and federal regulatory regimes for airborne toxic pollutants have thus far been unable to adequately mitigate or prevent localized areas of high pollution levels and increased health risk in some neighborhoods.6−9 The problem in Houston has been compounded by the reluctance of state and regional regulators to assume a strong role in pollution control and environmental enforcement, particularly concerning the chemical and refining industry, which is a key source of jobs and philanthropy in the region.

Conventional wisdom suggests that pollution control strategies should be tailored to the realities of local circumstances to be most effective.1,2 Despite this sentiment, the capacity of municipalities − the level of government most in touch with local circumstances − to make important contributions to pollution control and environmental protection has been largely overlooked.3 One reason for this is that pollution tends to migrate across boundaries, beyond the reach of local regulatory power, but the main reason is that federal legislation dominates the environmental realm. The Clean Air Act (CAA), the federal law that provides the legal framework for air pollution control in the United States, lays out a complicated set of relationships and responsibilities among federal, state, and local government.4 The 1990 CAA Amendments allow for state and local programs to regulate air toxics, subject to EPA approval. Most states have primary responsibility for air toxics control (e.g., permitting and enforcement), though some have chosen to delegate a portion of their authority to municipalities or other local government entities. The State of Texas has not delegated its authority to local governments; however, the Texas Clean Air Act does permit municipalities to act in the area of air pollution control so long as their actions do not conflict with state laws or regulations. © 2013 American Chemical Society

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research and policy reports, media reports, official government reports, and Web sites of government and nongovernmental entities. The review of public documents also included transcripts from the Oral History of Houston Project.12 Public record requests for documents relevant to the air toxics debate were submitted pursuant to the Texas Public Information Act to the City of Houston’s legal department, City Council Secretary, Mayor’s Office, and Municipal Courts Office. The document review was supplemented with semistructured interviews with fourteen key informants who played central roles in the events of interest. The subjects recruited for interview were identified by creating a network of interactions; the nodes of interaction were selected as the first interviewees. We then interviewed informants further and further from the nodes in order to fill specific knowledge gaps and to corroborate factual details for each policy tool. Interviews were conducted with five current or former public officials at the City of Houston (including the former mayor); one former member of the Texas Commission on Environmental Quality (TCEQ) staff; three faculty members at local universities; two representatives from private industry; and three representatives from local, state, and national nongovernmental organizations (NGOs). Additional detail on the methodology is provided in Part 1 of the Supporting Information. The detailed chronology was viewed first through a policy process lens in order to identify the major actors and decisions from the core material and to provide a macrolevel frame for understanding why the events may have unfolded as they did. We then rationally reconstructed the specific tactics and instruments employed by the City of Houston, highlighting key features of the policy instruments and considering the factors that may have played a role in the formulation, choice, and performance of tactics and policy instruments. The general analytic strategy was explanation-building: we developed explanations of the events and iteratively refined, revised, and repeated the process as new information was collected.

U.S. EPA has long recognized limitations in its air toxics program and called for state and local agencies to complement the federal program with their own,10 stating, “[a]lthough EPA will continue to develop national efforts to address the remaining air toxics risk, in many cases these risks can be more appropriately addressed at the [state, local, and tribal] level rather than the federal level.”.11 Few local governments have accepted EPA’s invitation to a take a more active role in the control of air toxics. The City of Houston is one of the exceptions. When Mayor Bill White’s Administration took office in 2004, stationary monitors in East Houston were reporting annual average concentrations of selected air toxics that were among the highest ambient levels recorded anywhere in the United States (i.e., 3.0 parts per billion (ppb) for benzene; 4.4 ppb for 1,3-butadiene). The communities adjacent to the petrochemical and refining facilities along the Houston Ship Channel in East Houston are among the most vulnerable in the region: they tend to be poor, nonwhite, and lack health insurance.6 From 2004 to 2009, despite the many challenges involved, the City of Houston developed and implemented a municipality-based air toxics reduction strategy that pushed beyond the controls already mandated by federal and state regulators under the CAA. The city focused much of its attention on the petroleum refineries and chemical plants along the Ship Channel. The initiatives that made up the city’s strategy met with varying degrees of success. Our objective is to examine the impetus for and implementation of the City of Houston’s unconventional strategy, with particular emphasis on identifying lessons for the development of effective and efficient municipal strategies to control air toxics.

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METHODS The process by which the city formulated and made choices about policy tools was complex and how the tools performed was influenced by many events and actors. This complexity makes it virtually impossible to reduce the events to quantitative variables or relationships. The case study method was employed to explore how and why events transpired as they did. Specifically, we adopt a policy design framework to conduct a retrospective assessment of how a set of unconventional policy tools altered the regulatory landscape − and the control of air toxics − in Houston. The study period began when Mayor Bill White took office in January 2004 and sought to address high ambient air concentrations of 1,3-butadiene in one East Houston neighborhood. It ends when Mayor White left office in December 2009, at the end of his third two-year term − the final term allowed by local law. Over the study period, the city implemented an array of policy instruments to address what it saw as a serious problem that was not being dealt with appropriately by others. The study method involved constructing a detailed retrospective account, through documentation and key informant interviews, of the policy formulation and selection process. A comprehensive inventory and taxonomy of policy tools as well as a chronology of events following deployment of each tool were constructed from three key sources: a review of publicly available documents, a review of quasi-public documents obtained through public record requests, and interviews with key informants. The archival review of public documents included public docket files, articles published in scientific journals and law reviews, public testimony, city and state

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RESULTS: HOUSTON’S POLLUTION REDUCTION STRATEGY In January 2005, two investigations of air toxics levels in the city were published. The first, by TCEQ’s Toxicology Division, assessed cancer risks associated with air pollution concentrations measured at state pollution monitors.13 TCEQ Toxicology staff found high levels of 1,3-butadiene at the Milby Park monitor, where annual averages ranged from 2.1 to 4.4 ppb. The five-year average of 3.2 ppb was associated with a risk of 2-in-10,000 excess cancers over a lifetime, a level significantly higher than the TCEQ Toxicology Section’s “acceptable risk” level of 1-in-100,000.13 (EPA sets the 1-in100,000 risk level of 1,3-butadiene at 0.13 ppb.) The TCEQ report also detected elevated levels of benzene at three area monitors: the annual average concentration at one monitor was 3.0 ppb, a level associated with a theoretical excess cancer risk of 7-in-100,000. (EPA’s recommended toxicity range for longterm exposure to benzene ranges from 0.4 to 1.4 ppb for the midpoint risk range of 1-in-100,000 risk.) The other investigation, conducted by the Houston Chronicle and independent consultants (“In Harm’s Way”), reported on air toxics levels measured in public areas in four Houston-area communities.9 This series, which reported air toxics measurements in line with those noted in the TCEQ report, drew widespread attention to elevated concentrations of air toxics in some parts of Houston. It served as a triggering event that 4023

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experts were tasked with analyzing the evidence on health risks associated with air pollution and providing guidance on reducing those risks. In its June 2006 report, the Task Force identified twelve pollutants for which there was “compelling and convincing evidence of significant risk to the general population or vulnerable subgroups at current ambient concentrations,” including ozone, fine particulate matter, diesel particulate matter, benzene, 1,3-butadiene, formaldehyde, acrolein, among others (two of the authors, S.H.L. and K.S., were members of the task force).8,14 According to city officials, the primary intent of the Task Force was to give the Mayor’s office a scientifically credible way to focus its limited resources. Enhancing Monitoring, Investigation, and Interpretive Capacity. Once the city began its own air quality program in September 2005, it determined that it needed to increase its capacity in equipment and expertise in order to conduct riskbased monitoring and investigations and interpret the data it collected. The Bureau received grants from U.S. EPA and a local philanthropic foundation to acquire state-of-the-art monitoring equipment. These funds were used to outfit a mobile ambient air monitoring laboratory. Foundation funding was also used to acquire two infrared cameras. Bureau staff was trained in using the new monitoring equipment so evidence it gathered could be used along with other data to build the city’s arguments and, when sufficient, write citations and prosecute violations. Phase 3: Alternate Compliance and Enforcement Strategies (August 2006−2008). Writing Citations under the Authority of the Municipal Code. In August 2006, city attorneys developed a system for issuing citations for a variety of air pollution-related violations under the authority of the municipal code. The tool had not been used before because of restrictions in the city’s previous air program contract with TCEQ. Although fines were small, city officials believed that citations would help pressure industry to improve its performance. Voluntary Benzene Reduction Plan. The city, citing monitoring evidence suggesting that concentrations of some air toxics were still high enough to pose a health risk, evaluated its options. The city chose not to file suit against any of the other large air toxics emitters since available evidence was likely insufficient to win a major lawsuit. The mayor also indicated a preference for working cooperatively, understanding that any litigation would probably be tied up in court for many years. The city developed a Voluntary Benzene Reduction Plan, in which it asked area facilities to voluntarily agree to assess their processes and find ways to gradually reduce emissions.15 Benzene was chosen as the focus of the plan because it is ubiquitous and, according to city staff, because strategies to reduce benzene from major sources would simultaneously reduce emissions and ambient air concentrations of other air pollutants that posed public health risks in Houston. City staff approached Harris County, TCEQ, and EPA about joining the effort. All declined to participate. Only one plant agreed to meet with the city to discuss the plan further; none of the plants agreed to adopt an emissions reduction plan. Industry representatives argued that the plan did not address the most important benzene sources in the region (namely mobile sources) and did not reflect an accurate understanding of facility processes. Mayors of neighboring municipalities, where many of the targeted plants were located, also voiced great concern over the plan. Community members, however, generally supported it.

provided Mayor White with a unique opportunity to experiment with local air toxics policies. From 2004 to 2009, an array of diverse policy tools was deployed. They are described chronologically here and grouped into three major phases of activity: • Phase 1: Expanding Local Enforcement Capabilities (Jan. 2004 − Aug. 2005); • Phase 2: Moving Beyond Enforcement Authority (Sept. 2005 − July 2006); and • Phase 3: Alternate Compliance and Enforcement Strategies (Aug. 2006 − 2008). Part 2 in the Supporting Information provides a more exhaustive description of the events and tools. Part 3 provides an illustrative sample of quotes from key informants, which provide insight into the city’s decision-making processes as well as information on how the tools were perceived by their designers and other stakeholders. Phase 1: Expanding Local Enforcement Capabilities (January 2004−August 2005). Gaining Enforcement Authority. When Mayor White came to office in January 2004, the city department in charge of air quality, the Bureau of Air Quality Control (BAQC or “the Bureau”), was under contract with the state environmental agency (TCEQ). Under this contract, TCEQ provided funding for the city’s monitoring and investigation work and the city waived its right to pursue independent enforcement action against companies found to be violating pollution-control laws. When it came time for the city and TCEQ to negotiate a new contract, they were unable to agree on enforcement language. The city refused to execute a new air program contract with TCEQ and began operating its own air quality program (with reduced funding) in September 2005. The city indicated that its intent in gaining local enforcement authority was 2-fold: to provide leverage in negotiating emissions reductions and to serve as a deterrent to emitters. Using Restored Enforcement Authority To Obtain Emissions Reduction Agreement. The city used its enforcement authority against a firm that had a history of violations and was thought to be responsible for a significant portion of the air toxics problem at one monitoring location. In February 2005, the city notified Texas Petrochemicals, Inc. (TPC) that it intended to pursue independent enforcement action through a civil suit. Several months later, TCEQ negotiated a Voluntary Emissions Reduction Agreement with the company. In this agreement, TPC agreed to a set of voluntary measures, including installation of a fence-line monitoring system, various operational improvements, enhanced leak detection and repair procedures, and a commitment to reduce 1,3-butadiene emissions by 50% by the end of 2008. The City was not satisfied with the voluntary agreement, however, and chose to continue enforcement proceedings with the help of a highprofile trial lawyer. Negotiations between the city and TPC resulted in an enforceable contract, executed in December 2005. The five-year contract was similar to the voluntary agreement between TCEQ and TPC, but added legally binding obligations to reduce emissions. TPC did not admit to violating any laws or regulations. Phase 2: Moving Beyond Enforcement Authority (September 2005−July 2006). Mayor’s Task Force. Following the TCEQ report and Houston Chronicle investigation in early 2005, Mayor White announced that he would assemble an expert task force to determine where the city should focus its limited pollution-control budget. The health 4024

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Table 1. Comparison of Three Types of Policy Tools: Persuasive, Evidentiary, and Regulatorya

a

Table is based conceptually on a table in Linder SH and EM Marks, unpublished (2009).

Registration Ordinance. In February 2007, the city amended an ordinance that required large facilities that emit air pollutants to register with the city and pay a registration fee. According to city officials, the intent of this change was to “level the playing field” (so that both medium-sized and larger facilities would need to pay the fee) and also help defray costs for facility inspections. The ordinance also incorporated, by reference, portions of the Texas Clean Air Act in order to make violations of state law enforceable under the municipal code. TCEQ and industry groups argued that the city was overstepping its authority: the city was pre-empted from regulating air sources since they were permitted by TCEQ. The Business Coalition for Clean Air (BCCA) Appeal Group filed suit against the city, challenging the ordinance. The judge sided with BCCA.16 Proposed Municipal Nuisance Ordinance. At the same time the city released its Voluntary Benzene Reduction Plan, it floated a draft of a revised nuisance ordinance that sought to provide a mechanism for addressing emissions coming from outside the city’s boundaries. It would have allowed the city to bring suit against facilities in the cities surrounding Houston that emitted any of ten hazardous air pollutants “in such amounts and at such concentrations that may cause or contribute to or are likely to become injurious to health such that over time the risk of cancer may be increased by 1 case in 1 million...”. This was intended to be used in conjunction with the benzene plan. Any facility that adopted the plan would be given immunity from liability under the nuisance ordinance. Industry immediately appealed to local mayors and other government officials for help in fighting the ordinance, arguing that Houston was pre-empted from regulating industries that were operating in accordance with their permits. Industry representatives also lobbied state legislators to limit the ability of municipalities to use nuisance ordinances to address air pollution coming from outside their boundaries. To avoid legal challenges and further state legislative scrutiny, the city agreed to delay action on the ordinance and to participate in a regional task force facilitated by the Greater Houston Partnership. This task force, convened in May 2007, was unable to reach consensus on any plans for reducing air toxics. Participants were even unable to reach consensus on whether air toxics levels were too high. The position of industry representatives and state regulators was that pollution levels were already

improving and that state and federal agencies, not the city, were responsible for air toxics issues. The city agreed to table further action on the nuisance ordinance and reassess trends in benzene and 1,3-butadiene concentrations in six months. Meetings with U.S. EPA. In November 2007, Mayor White and several aides met with senior leadership in the U.S. EPA Office of Enforcement and Compliance Assurance in Washington, DC. The city took its case to U.S. EPA because of concerns it was not being heard at the state and regional levels. Following the meeting, EPA agreed to conduct a joint investigative effort to further understand and address Houston’s air toxics problem. Under this joint effort, which began in March 2008, city and EPA staff went into the field together to take measurements. Because EPA had jurisdiction outside of city limits, the team was able to conduct monitoring both within Houston city limits and in neighboring municipalities. In addition to appealing directly to the federal government, the city also sought to gain national attention by making presentations about Houston-area issues at EPA conferences and professional meetings. Benzene Action Plan. In early 2008, the city reviewed the trends for ambient benzene levels.17,18 Despite some improvement, the city asserted that benzene concentrations remained too high and further action was needed. Since local efforts had stalled, and in response to industry claims that the regulation of air toxics was the job of state and federal officials (not the city), the city opted to put additional pressure on EPA and TCEQ. In May 2008, the city issued a Benzene Action Plan,19 which listed suggested actions for major players, including the City of Houston, Harris County, TCEQ, EPA, and industry in order to achieve benzene reductions. In the plan, the city identified two ways by which it would seek to engage TCEQ and EPA: it would seek modification of EPA’s methods for estimating facility emissions and it would review TCEQ permits. In July 2008, the city petitioned EPA under the Data Quality Act (DQA) seeking changes of emission factors, equations, and estimates that, in the city’s view, resulted in consistent and significant undercounting of emissions from refineries and chemical manufacturing plants.20 In April 2009, EPA responded to the petition and agreed that the current methodology was incomplete, noting that the protocol was being revised in “direct response” to the city’s request.21 4025

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Table 2. Summary of the City of Houston’s Policy Approach During Three Activity Phases

voluntary cooperation. The city used persuasive tools throughout White’s tenure in cooperation with the other approaches. When the air toxics issue first made it onto the public agenda, the mayor spoke publicly about the need for the firms responsible for the elevated air toxics levels to take immediate action to improve air quality. The mayor also called for TCEQ to take a more active role in addressing the air toxics problem in Houston. In the third phase of activity, the city attempted to use persuasive tools to get area firms to voluntarily adopt emission reduction plans. Its success was mixed. The Voluntary Benzene Reduction Plan, for example, was not adopted by any companies, plus it damaged the relationships between the city and industry and between the city and other local governments. It had little, if any, impact on facility operations. Positive incentives, including recognition for being an environmental leader and exemption from the nuisance ordinance, were insufficient to promote cooperation. The lack of support from TCEQ and the EPA regional office made the city’s ability to gain voluntary cooperation all the more unlikely. The effort was successful in one respect: it demonstrated the city’s commitment to addressing their concerns with air toxics. The city’s new-found expertise, in turn, eventually helped them gain cooperation from EPA for a joint monitoring and investigation project. In examining the decision-makers’ choices about particular policy forms, we found that they made trade-offs, considering criteria such as legal and bureaucratic constraints, ethical and moral concerns, political considerations, economic issues, and public health benefits. These choices were influenced by context: the decision-makers’ debate with opposing actors as well as their own familiarity with the tools, professional bias, and beliefs. As a result of the city’s efforts, TCEQ and EPA devoted additional attention and resources to air toxics in Houston. Moreover, air toxics emissions and concentrations declined, though it is difficult to identify specific contributions from the city’s initiatives. Mayor White and others from his administration assert that the city’s actions played a key role in leading to emission reductions because of increased visibility, which pressured responsible parties to respond. There are several practical lessons to be drawn from the City of Houston’s experience of formulating and deploying their own policy tools for reducing air toxics. Overall, the efforts demonstrate that municipalities can have an impact on the behavior of industrial sources and regulatory agencies − provided their efforts are tenacious and flexible. The Importance of Prioritization and Attention. Highlighting air toxics from the mayor’s bully pulpit brought attention and resources to the issue. Even though some tools were not successful in achieving their primary goals, the city’s efforts shined a light on air toxics and promoted further action.

In response to TCEQ’s claims that facility emissions were authorized by TCEQ permit, the city sought to reduce levels of pollutants allowed when permits came up for renewal. In August 2008, Houston Refining LLC filed for a permit renewal with TCEQ. The city immediately requested a contested case hearing on the application, with involved a flexible permit, so they could present evidence before administrative law judges.22 A year and a half later, TCEQ formally denied the request, claiming that the commission could not grant a hearing on a permit renewal unless the firm was seeking to increase permitted emissions (which the plant was not). The city maintained, however, that state law allows commissioners to order a hearing on their own authority if they rule that it is in the public’s interest.

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DISCUSSION: ANALYSIS OF POLICY TOOLS AND OUTCOMES The city’s policy tools can be classified into a larger spectrum of policy tools for achieving regulatory control: persuasive, evidentiary, and regulatory tools (Table 1). The city’s use of tools varied over the three phases of activity (Table 2). Regulatory tools, such as the development of new municipal ordinances or threatening to take legal action, are the most coercive and antagonistic in nature. They impose formal limits on activities considered undesirable. These tools were deployed early in the city’s strategy, achieving some success. The acquisition of legal authority was essential for the city’s efforts to negotiate an emissions reduction agreement with TPC, an effort that was buoyed by strong data as well as public and media attention. When other approaches failed to deliver sufficient results later in the Mayor’s term, the city returned to using more coercive regulatory tools, with mixed success. In the case of the draft nuisance ordinance, if the main purpose was to draw attention to the issue, then the city was successful. However, it also drew unwanted legislative scrutiny and further eroded the city’s relationships with industry and other local governments. Evidentiary tools, such as monitoring and investigation programs, are less coercive. They rely upon information to achieve the desired action. As such, they are less antagonistic than the regulatory tools. Once the city began operating its own air program, it made extensive use of evidentiary tools. They were highly successful. The Mayor’s Task Force gave the city a prioritization scheme for addressing air pollution concerns. The enhanced monitoring and investigation efforts were successful in focusing limited resources in areas where risks were highest, giving the city leverage in asking for corrective action, and providing a mechanism by which to draw EPA’s attention to the area. Persuasive tools, such as moral suasion and public appeals to take action, are the least coercive category. They rely on 4026

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classifying each by type (persuasive, evidentiary, and regulatory) and degree of antagonism and coercion. For each tool, we examined the decision-makers’ rationale and expectations and also assessed the tool’s relative success. Further work in this area could take this analysis a step further, linking tool choice to a specific set of criteria and assembling a range of plausible instruments with predictable performance under certain specifiable conditions. This theory regarding the context-sensitivity of tool choice and performance could then be tested and refined in case studies of other municipalities. There are theoretical lessons to be learned as well, moving away from specific tools to the regulatory regime itself. Where should initiative reside in a system of intergovernmental relations that pushes regulatory authority to higher levels while the health risks are concentrated at the lowest, local level? A number of policy tools employed by the city were part of a persistent effort to alter its relationship with the state and federal government. The City of Houston rejected the traditional balance of authority, taking initiative in areas relevant to pollution control that either had been neglected by higher authorities or were under-populated by their policy activity. By pleading (e.g., making its argument to EPA and asking for the cooperation of industry, the state regulatory agency, and regional officials) and prodding (e.g., revising ordinances, threatening lawsuits, and filing a petition with EPA), the city managed to draw attention to the problem locally and get reluctant policymakers at higher levels of government to respond.9 There was resistance to these efforts both locally by stakeholders who would bear the costs of the desired changes and by the state, traditionally responsible for protecting the public’s health.26 This case study demonstrates that despite the regulatory, institutional, and financial constraints a city government may face in addressing local environmental problems, it can be effective in filling the policy vacuum by forcing other, reluctant government actors to step in. The city’s effort at realigning regulatory initiative appears to have worked in the short term. However, further studies should examine the longer term impact of the realignment, assessing the city’s ability to stave off threats to its newfound discretion. Additional studies might also examine the lasting impacts of the city’s air toxics strategy on quantitative measures, such as emissions by particular point sources and ambient levels of air toxics across monitors in East Houston. Unfortunately, recent analyses of mobile monitoring data indicate the persistence of an air toxics problem: as part of the Study of Houston Atmospheric Radical Precursors (SHARP) field study in 2009, the mobile laboratory again detected elevated styrene and 1,3butadiene concentrations in the Milby Park area of East Houston.27

These efforts had a decisive effect on TCEQ, EPA, and industry. Strong Leadership Is Critical. Mayor White used the power of persuasion and personal connections to influence behavior both in higher levels of government and in the private sector. The importance of Mayor White’s leadership is underscored by the fact that the air toxics issue dropped from the public discourse and the policy agenda when a new mayor took office in 2010. The Need for Negative Incentives. This case study provides some support for the assertion that, to be effective, voluntary programs must be backed up with a threat of enforcement or regulation. The threat of a lawsuit (along with increased public attention and moral suasion) seemed to work to move TPC to negotiate a settlement with the city. The Voluntary Benzene Reduction Plan, on the other hand, lacked sufficient positive incentives for cooperation and sufficient offsetting negative consequences for refusing to participate. Information is Powerful. Scientific evidence and interpretation was critical to the city’s efforts and played a key role in the debate. Data gained through advanced monitoring techniques were effective in focusing city resources, providing necessary evidence for legal actions, and drawing attention to limitations in the current system. Like all studies, this one has certain limitations. The emphasis here was on understanding the city’s decision-making process and the details of its chosen policy tools. Informants were therefore chosen based on their knowledge of these issues. Although attempts were made to minimize bias by corroborating details through multiple sources, results and conclusions may have been influenced by the biases of key informants. In addition, there are numerous alternative explanations for the outcomes observed in Houston since results were influenced by diverse contextual factors. This study sought to describe as much of the context as possible; other important features may still be missing. There are also limitations in the case study design, a design that facilitates the exploration of a complex series of events through the examination of a specific set of circumstances in one place and time. Therefore, it can be difficult to replicate or generalize from them.23 Indeed, the Houston case is unique due to the scale of the problem and the degree to which state and local authorities were at odds over the extent (or very existence of) a problem with air toxics and appropriate policy responses. However, results can still be used by analogy to provide insights about a similar case or set of circumstances and to expand and generalize theories.24,25 This case study provides in-depth information regarding a range of tools, access to the logic and processes accompanying formulation and choice, and an opportunity to examine the effects of the tools. As a result, this study provides some analytical lessons about how questions of policy performance are framed and how systems of policy actions can be understood. In examining the decision-makers’ rationale and choices about particular policy tools, we found that they made trade-offs and that their choices were influenced by context. Ultimately, the city took a reactive approach to policymaking, choosing tools based upon the flow of opportunities. The questions then become the following: how contextsensitive are tool choice and performance and can the Houston experience be generalized beyond this time and place. To address these questions, we fit the city’s chosen tools into a larger spectrum of policy tools for achieving regulatory control,

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ASSOCIATED CONTENT

S Supporting Information *

Part 1: Methodology; Part 2: Timeline of Events; Part 3: Quotes from Key Informants. This material is available free of charge via the Internet at http://pubs.acs.org.

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AUTHOR INFORMATION

Corresponding Author

*Phone: (713) 798-1078. Fax: 713-798-2770. E-mail: Rebecca. [email protected]. 4027

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Present Address

(16) BCCA Appeal Group v. City of Houston. Cause No. 200809399. Final judgment. In 269th Judicial District, District Court of Harris County. (17) Raun, L. H. Statistical assessment of benzene and 1,3-butadiene in ambient air in the Houston region; City of Houston, Office of Environmental Programming: Houston, 2008. (18) Raun, L. H.; Marks, E. M.; Ensor, K. B. Detecting improvement in ambient air toxics: an application to ambient benzene measurements in Houston, Texas. Atmos. Environ. 2009, 43 (20), 3259−3266. (19) Benzene Action Plan: An Interim Report; City of Houston, Office of Environmental Programming: Houston, 2008. (20) City of Houston Letter to EPA Information Quality Guidelines Staff in Re: Request for Correction of Information under the Data Quality Act and EPA’s Information Quality Guidelines. http://www. greenhoustontx.gov/reports/epaletter20080709.pdf (accessed December 10, 2012). (21) Letter from Elizabeth Craig, Acting Assistant Administrator to the Honorable Bill White, April 7, 2009. http://www.greenhoustontx. gov/reports/dataquality20090407.pdf (accessed December 10, 2012). (22) City of Houston Letter to Office of the Chief Clerk, TCEQ in Re: Renewal of Flexible Permit No. 2167 Houston Refining, LP Comments and Second Request for a Contested Case Hearing; Office of the Mayor, Houston, TX, 2009. http://www.greenhoustontx.gov/ reports/refiningpermitmatter.pdf (accessed December 10, 2012). (23) King, G.; Keohane, R. O.; Verba, S. Designing Social Inquiry: Scientific Inference in Qualitative Research; Princeton University Press: Princeton, 1994. (24) Rossman, G. R.; Rallis, S. F. Learning in the Field: An Introduction to Qualitative Research; Sage: Thousand Oaks, 2003. (25) Yin, R. K. Case study research: design and methods. In The Sage Handbook of Applied Social Research Methods; Rog, D. J., Bickman, L., Eds.; Sage Publications, Incorporated: Washington, DC, 2009; Vol. 5. (26) Gostin, L. O. Public health law in a new century. JAMA 2000, 283 (22), 2979−2984. (27) Knighton, W. B.; Herndon, S. C.; Wood, E. C.; Fortner, E. C.; Onasch, T. B.; Wormhoudt, J.; Kolb, C. E.; Lee, B. H.; Zavala, M.; Molina, L.; Jones, M. Detecting fugitive emissions of 1,3-butadiene and styrene from a petrochemical facility: an application of a mobile laboratory and a modified proton transfer reaction mass spectometer. Ind. Eng. Chem. Res. 2012, 51 (39), 12706−12711.

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Baylor College of Medicine, One Baylor Plaza, MS BCM285519D, Houston, TX 77030. Author Contributions

This research was conducted by R. Bruhl for her doctoral dissertation, under the guidance and supervision of S. Linder and K. Sexton. All authors contributed to writing the manuscript and have given approval to the final version of the manuscript. Notes

The authors declare the following competing financial interest(s): Two of the authors (S.H.L. and K.S.) were members of the Mayor’s Task Force 2005-2006.

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ACKNOWLEDGMENTS We thank the informants who provided their insight and perspective on the Houston air toxics program as well as the journal reviewers, whose comments strengthened this work substantially. Support was provided by the Institute for Health Policy at the University of Texas School of Public Health.

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REFERENCES

(1) Chertow, M. R.; Esty, D. C. Thinking Ecologically: The Next Generation of Environmental Policy; Yale University Press: New Haven, 1997. (2) Sexton, K.; Marcus, A. A.; Easter, K. W.; Burkhardt, T. D., Eds. Better Environmental Decisions: Strategies for Governments, Businesses, and Communities; Island Press: Washington, DC, 1999. (3) Flatt, V. B. Act locally, affect globally: How changing social norms to influence the private sector shows a path to using local government to improve environmental harms. BC Environ. Aff. L. Rev. 2008, 35, 455−478. (4) NRC, Air Quality Management in the United States; National Academy Press: Washington, DC, 2004. (5) Ewing, B.; Kysar, D. A. Prods and Pleas: Limited Government in an Era of Unlimited Harm. Yale Law J. 2011, 121, 350−424. (6) Linder, S. H.; Marko, D.; Sexton, K. Cumulative cancer risk from air pollution in Houston: disparities in risk burden and social disadvantage. Environ. Sci. Technol. 2008, 42 (12), 4312−4322. (7) McGarity, T. O. Hazardous air pollutants, migrating hot spots, and the prospect of data-driven regulation of complex industrial complexes. Tex. L. Rev. 2007, 86, 1445−1492. (8) Sexton, K.; Linder, S. H.; Marko, D.; Bethel, H.; Lupo, P. J. Comparative assessment of air pollution-related health risks in Houston. Environ. Health Perspect. 2007, 115 (10), 1388−1393. (9) Cappiello, D. In Harm’s Way: A five-part Chronicle series uncovers the dangers in the air. Houston Chronicle January 16, 2006. (10) National Air Toxics Program: The Integrated Urban Strategy. Federal Register July 19, 1999, p 38706. (11) Technology Transfer Network Air Toxics: State/Local/Tribal Program Structure. http://www.epa.gov/ttnatw01/urban/urbandev. html (accessed December 10, 2012). (12) The Oral History of Houston. http://vi.uh.edu/public_history/ houston_history_project/oral/index.html (accessed December 10, 2012). (13) Health Effects Review of Air Monitoring Data Collected in TCEQ Region 12-Houston during 2003; TCEQ Interoffice Memorandum: 2005. (14) Sexton, K.; Linder, S.; Delclos, G.; Stock, T.; Abramson, S.; Bondy, M.; Fraser, M.; Ward, J. A Closer Look at Air Pollution in Houston: Identifying Priority Health Risks; Mayor’s Task Force on the Health Effects of Air Pollution; University of Texas School of Public Health, Institute for Health Policy: Houston, 2006. (15) Houston Regional Benzene Air Pollution Reduction: A Voluntary Plan for Major Sources; City of Houston, Office of Environmental Programming: Houston, 2007.

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NOTE ADDED AFTER ASAP PUBLICATION Due to a copyright issue, the TOC and abstract images were replaced in the version of this paper published April 25, 2013. The corrected paper published May 7, 2013.

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dx.doi.org/10.1021/es305296n | Environ. Sci. Technol. 2013, 47, 4022−4028