ENVIRONMENTAL LAW

FALL 2011

Railroad Comm’n. of Texas v. Texas Citizens for a Safe Future and Clean Water, 336 S.W.3d 619 (Tex. 2011)

Commission’s Construction of “Public Interest” Not Including Traffic Safety Was Reasonable: The Supreme Court found that the appellate court erred in not deferring to the Railroad Commission’s interpretation of “public interest” in a permit proceeding for disposal of oil and gas waste in an injection well. Factually, the case related to waste produced in fracing wells for production in the Barnett Shale oil and gas field. Pioneer Exploration applied to the Commission for a permit to convert an existing well into an injection well for the disposal of oil and gas waste into subsurface zones. Under Tex. Water Code § 27.051(b), the Commission must make certain findings to grant such a permit, including that “use or installation of the injection well is in the public interest.” During a contested case hearing on the permit, protestants argued that issuance of the permit was not in the public interest because of traffic safety issues, such as increased truck traffic on narrow rural roads. The Commission found that the well was in the public interest and adopted the hearing examiner’s findings and conclusions, including that the Commission did not have regulatory jurisdiction over truck traffic on state roads. The Court found this construction reasonable and in accord with statutory language, an analysis that it described as similar to the Chevron doctrine for agency interpretation of a statute in federal court. In its opinion, the Court compared and contrasted statutory factors under Chapter 27 that the Railroad Commission and the Texas Commission on Environmental Quality must consider in granting injection well permits for oil and gas waste and industrial and municipal waste, respectively.

United States v. Sauseda, 596 F.3d 279 (5th Cir. 2010)

Toxic Emission Enhancement Under Federal Sentencing Guidelines Inapplicable Unless Government Proves Violation of Listed Environmental Statute: In this criminal case, the defendant was convicted of methamphetamine related violations and challenged the trial court’s two-level sentencing enhancement under the federal sentencing guidelines. After discussing interpretive principles for the guidelines, the Court focused on an “application note” to a toxic substance release enhancement guideline. The note specified applicability if the conduct involved a violation of certain listed federal statutes. Pointing to its unpublished opinions and precedent in the 3^rd, 9^th, and 11^th Circuits, the Court held that the government must prove a violation of one of the listed statutes by a preponderance of evidence for the enhancement to apply. In this instance, the government did not meet its burden because it only presented evidence that the officers were overcome by pungent fumes and odors in the defendant’s residence.

Sierra Club, Inc. v. Sandy Creek Energy Assoc., L.P., 627 F.3d 134 (5^th Cir. 2010)

On-Going Construction of Coal Fired Power Plant Without TCEQ Technological Control Determination Violated Clean Air Act: This case related to a coal fired power plant being constructed in Riesel, Texas. The federal Clean Air Act (“CAA”) and related Texas Commission on Environmental Quality (“TCEQ”) rules to implement it required a case-by-case technological emission control determination for major stationary sources of hazardous air pollutants (called a “MACT determination” for maximum achievable control technology). In the unusual circumstances of this matter, TCEQ determined in response to Sandy Creek’s application that a MACT determination was not required. At the time of Sandy Creek’s start of plant construction, EPA had a rule removing coal-fired units from the list of hazardous air pollutant regulated sources. After Sandy Creek started construction, however, the D.C. Circuit vacated the relevant EPA delisting rule. New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008) (D.C. Circuit had exclusive jurisdiction over the rule challenge). Thereafter, Sierra Club filed its CAA citizen suit claiming a violation because of construction without a required MACT determination. Held: The Fifth Circuit reversed and remanded the District Court’s summary judgment for the defendant, finding that on-going construction of the plant violated the clear language of the CAA that “no person may construct” a major stationary source of a hazardous air pollutant without a MACT determination. 42 U.S.C. Sec. 7412 (g)(2)(b). The appellate court also determined that the District Court did not abuse its discretion in refusing to abstain from ruling. In its discussion of abstention, the Fifth Circuit noted the EPA’s recent formal disapproval of part of Texas’s air permitting program.

Del-Ray Battery Co. v. Douglas Battery Co., 635 F.3d 725 (5^th Cir. 2011)

CERCLA Exemption Does Not Apply to Texas Solid Waste Disposal Act: Battery recyclers who were sued for contribution in state court under the Texas Solid Waste Disposal Act (“TSWDA”) brought an action in federal court for declaratory relief that a Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) exemption for recyclers (42 U.S.C. Sec. 9627, added to CERCLA in 1999) applied to the TSWDA. Held: The federal exemption did not apply to liability or a cause of action under TSWDA and CERCLA did not preempt the TSWDA. The TSWDA was in part the state correlate of CERCLA and did not contain an equivalent of the pertinent CERCLA exemption.

United States v. Rutherford Oil Corp., 756 F.Supp.2d 782 (S.D. Tex. 2010)

Discovery Rule Did Not Apply in Clean Water Act Enforcement Matter: The United States brought civil enforcement actions for illegal discharges against the defendants under the Clean water Act (“CWA”) and Rivers and Harbors Act related to “prop washing,” where propellers or bottoms of vessels in shallow water cause bed and soil disturbance and redeposit. The Court considered limitations issues under 28 U.S.C. Sec. 2462, the five year statute of limitations applicable to CWA civil fines and penalties (but not injunctive or other equitable relief). Held: The limitations period runs from the date of violation and not the date of its discovery. The Court also found that the defendants’ failure to remedy discharges did not constitute a continuing violation, thereby tolling the statute of limitations.

Ass’n. of Taxicab Operators, USA v. City of Dallas, 760 F.Supp.2d 693 (N.D. Tex. 2010)

Preliminary Injunction Denied Because City Ordinance Was Not a Clean Air Act Emission Standard: The plaintiff-organization requested preliminary injunctive relief after the City of Dallas (“City”) passed an ordinance creating “front-of-the-line” incentives in general passenger pickup order for natural gas powered taxicabs at Dallas Love Field airport. In considering the plaintiff’s substantial likelihood of success on the merits (one criterion for injunctive relief), the Court evaluated the plaintiff’s position that the federal Clean Air Act (“CAA”) preempted the City ordinance. Held: There was no preemption because the City was not enforcing an emission control standard for new motor vehicles. Thus, the court denied the application for a preliminary injunction. Note: This opinion includes a good discussion of the structure of the CAA, federal and state/local roles, and the Dallas-Ft. Worth area’s status of non-attainment for federal ozone clean air standards.