Houston adopted an ordinance that included some clean-air regulations, giving local officials the power to enforce them. These included some rules that mirrored requirements of state law, which the local officials could then enforce through civil penalties under the local ordinance.

BCCA sued, arguing that the ordinance is preempted by state law. The City responds that these kinds of rules are within its authority as a home-rule city under the Texas Constitution and, in any event, the state law should be construed to disfavor preemption in this area.

The Governor's office filed its own amicus brief supporting BCCA, arguing that the city's penalty amounts to a criminal penalty that would interfere with the way state the Texas Commission on Environmental Quality deals with repeat offenders. A group of local officials responded with an amicus brief arguing that, to the contrary, local governments can properly impose strict-liability sanctions such as this without offending state law.