Municipal "Green" Cement Policies Trigger Lawsuits

September 8, 2009
by MEREDITH DuBARRY HUSTON
Client Alert Newsletter September 2009

A Dallas, Texas suburb is the latest local government to be sued for a policy favoring the purchase of cement made in newer and cleaner "dry" kilns over that made in older "wet" kilns. By incorporating state emissions standards as specifications in bids for cement purchasing, such “green” cement resolutions put pressure on wet kiln operators to either update pollution controls to meet emissions levels achieved by dry kilns, or to replace their wet kilns with new dry ones, thus creating a preference for more aggressive pollution controls. In the latest lawsuit, Ash Grove, the cement manufacturer, alleges that Plano, Texas is acting illegally by giving preferential treatment to companies based on factors outside of the competitive bidding process when only the competence of the bidder and the price should be considered. As similar "green" regulations are implemented in other states and municipalities, they are likely to trigger similar challenges by affected companies. It remains to be seen whether legal challenges to such regulations will succeed or whether the regulations will be left standing to achieve their desired improvements in environmental performance.