Regulation of Outdoor Lighting

State and Local regulations vary widely in scope, adequacy, effectiveness and enforcement capabilities. A January 2003 article in the Notes section of the New England Law Review, Volume 36:4, “Light Pollution in the United States” points out these inadequacies. It is an excellent review of the literature on the history and effects of light pollution, as well as common law and statutory law applications. It ends with a suggestion to compare the regulation of unwanted light to the Federal Noise Pollution Act and the Quiet Communities Acts, which funded public education about noise pollution.

Although our first task is to raise public awareness about light pollution and how to combat it, the legislative process can proceed simultaneously starting with building friendly connections with your local government.

Texas State Codes

There are three sets of Texas State Codes regarding outdoor lighting and outdoor lighting regulation 1) Transportation Code, Title 6, Subtitle E, Chapter 315, Subchapter A (enacted Sept. 1, 1995), 2) Health and Safety Code, Title 5, Subtitle F, Chapter 425 (enacted Sept. 1, 1999), and 3) Local Government Code, Title 7, Subtitle B, Chapter 240, Subchapter B (enacted Sept. 1, 1987; amended Sept. 1, 2001 and May 25, 2007).

Click on each Statute below for a complete version of the enacted text from the Texas Legislature website:

Texas Transportation Code, Title 6. Roadways, Subtitle E. Municipal Streets, Chapter 315. Artificial Lighting, Subchapter A. General Provisions (enacted Sept. 1, 1995)

Purpose and authorization: Authorizes municipalities, but NOT unincorporated areas in counties, to regulate outdoor lighting. Regulates the process for how new street lighting is to be installed using public funds. Contains enforcement and ownership clauses for the municipality.

Texas Health and Safety Code, Title 5. Sanitation and Environmental Quality, Subtitle F. Light Pollution, Chapter 425. Regulation of Certain Outdoor Lighting (enacted Sept. 1, 1999)

Purpose and authorization: This statute provides that all new or replacement state-funded outdoor lighting must be from cutoff luminaries if the rated output of the fixtures is greater than 1,800 lumens. For example, if a state-funded university installs a new parking lot, the parking lot lighting comes under the regulations of this Health and Safety code. The definition of ‘outdoor lighting fixture’ in the code includes a list of fixed or movable lighting equipment that is designed or used for illumination outdoors.

Legislative History: http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=76R&Bill=HB916

Current Enforcement: In 2007, Texas IDA members petitioned the Texas Higher Education Coordinating Board (THECB) to enforce this statue at all state-funded higher education institutions (including, but not limited to UT Austin, Texas A&M, and Texas Tech). At that time, the THECB declined our petition and notified us in writing that this statute did not fall under their enforcement jurisdiction and that no further actions on their part were required. Here is a copy of THECB’s written response to our petition: THECB’s Denial Letter to Texas IDA, 4/27/2007. However, the Board did contact all higher education institutions in Texas notifying them that they were required by law to use cutoff outdoor lighting in keeping with Chapter 425 of the Texas Health and Safety Code. Here is their letter to Texas higher education institutions: THECB’s Letter to Higher Education Institutions, 4/27/2007. In addition, the Board provided us with 14 written responses from various higher education institutions in Texas after they were notified that they SHOULD be actively following Chapter 425 even though THECB would not be enforcing it: THECB’s Survey Results of Petition to Adopt New Rule on Outdoor Lighting Certification, 4/27/2007. Thus, while THECB will not enforce this statute, they did at least notify education institutions that they should be following it by using cutoff outdoor lighting.

Through correspondence with the Texas Department of Transportation (TXDOT), we know that they are actively following Chapter 425 by using cutoff outdoor lighting on all new highways and road construction projects as well as replacing old non-cutoff fixtures with cutoff ones as they see fit.

Texas Local Government Code, Title 7. Regulation of Land Use, Structures, Businesses, and Related Activities, Subtitle B. County Regulatory Authority, Chapter 240. Miscellaneous Regulatory Authority of Counties, Subchapter B. Outdoor Lighting Near Observatories and Military Installations (enacted Sept. 1, 1987; amended Sept. 1, 2001 and May 25, 2007)

Purpose and authorization: Authorizes counties to regulate outdoor lighting if they contain observatories that have telescopes of 69 inches or more objective diameter, and are permanently mounted. Otherwise, Texas counties are not allowed to do so; only municipalities. This bill applies exclusively to George Observatory near Houston, Stephen F. Austin University at Nacogdoches, and within a 57-mile radius of McDonald Observatory in southwest Texas.

Legislative History: (2001 amendment); http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=77R&Bill=HB164. (2007 amendment); http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=80R&Bill=HB1852. (2011 proposed amendment); http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=82R&Bill=HB2857.

2007 Amended Section: HB 1852 of the 2007 Texas Legislative Session amended Chapter 240, Subchapter B to give Texas counties (who used to not have this authority) the ability to enact outdoor lighting restrictions within a 5-mile radius of a military installation or base. This was specifically done to allow Bexar County (San Antonio) to enact outdoor lighting restrictions to protect the Camp Bullis Army Training Facility from urban encroachment and the associated light trespass. However, this amendment also added many exemptions to Chapter 240, Subchapter B, which were not previously noted. It is unclear at this point whether the exemptions simply apply to military installations or to observatories as well.

2011 Amendment **EFFECTIVE 1/1/12**: HB 2857 will require both municipalities and counties within a 57-mile radius of McDonald Observatory to regulate outdoor lighting at night. In addition, the enforcement mechanism of Chapter 240, Subchapter B (see above) will be strengthened. Utility companies are exempt.

Texas builders must abide by the International Energy Code of the IECC for commercial, and industrial and low/high rise multi-family residential buildings, and the International Residential Code for single family construction. These codes need to be amended to include outdoor lighting standards.

How to Contact Your Legislators

Texas Legislature

US Senate and House

Who Represents Me in Congress?

If you can find a state congressional representative to sponsor additional light pollution legislation, you may Contact Us to ask for assistance, but present it to them as an individual, and not as a member of Texas IDA.

For instance, some issues at stake are:

(1) the problem of glare and light trespass from roadway lights

(2) glare and light trespass from lights in unincorporated areas (counties do not have authority from the state to regulate outdoor lighting, except as stated above in Texas Code 240 B, 2001)

(3) Light pollution from cutoff (partially shielded) roadway lighting. The Health and Safety Code Chapter 245 (#2 above) only requires cutoff fixtures and not full cutoff.

(4) Rewriting Health and Safety Code Chapter 245 to add an enforcement agency tasked with overseeing that state funded entities do in fact use cutoff outdoor lighting fixtures.

Reminder about LOBBYING regulations

As a result of IDA’s filing a special IRS form in 2009, the lobbying rules that IDA and Texas IDA must follow are much less restrictive than in the past. In short, Texas IDA and its members CAN lobby a legislative body now using the Texas IDA name as long as the money spent on the legislative lobbying is small. If no money is spent at all, then we are OK and within the rules. What exactly is meant by small? Well, you will have to contact the Texas IDA Coordinator who will be able to assist you further as there is no simple answer.

Here is the legislative lobbying excerpt from the IDA’s June, 2010 Lobbying Guidelines to Texas IDA:

Legislative

The major change resulting from the Form 5768 IRS filing is for legislative lobbying. Legislation includes action by a legislative body with respect to acts, bills, resolutions, or similar items (such as legislative confirmation of appointive office) or by the public in referendums, ballot initiatives, constitutional amendments, or similar procedures. Legislative lobbying covers both direct lobbying (attempting to influence a member or employee of a legislative body or any other government employee who may participate in formulating legislation) and grass roots lobbying (attempting to influence legislation by affecting opinions of the general public or a segment thereof).

The IRS form filed in 2009 permits IDA and affiliated organizations to engage in legislative lobbying as long as total expenditures do not exceed certain limits based on IDA’s annual income. These limits are high enough that, as a practical matter, money spent by IDA Chapters on legislative lobbying is not likely to be a problem. If you plan on spending any money, $5 or $500, please let us know. Since you are all working under the IDA 501 c 3 designation, your spending is cumulative for the organization.

An organization may communicate with its members about legislation of direct interest to the organization; such communications will not count toward the expenditure limit unless they directly encourage attempts to influence legislation.

Please note also that individuals spending their own money and using their own name (without IDA association) are not subject to any limitations on legislative lobbying.

For more information:

Contact Texas IDA

“Never doubt that a small group of dedicated citizens can change the world.

Indeed, it’s the only thing that ever does.”

Margaret Mead