ENVIRONMENTAL LAW

                                                                                                Winter 2009-2010

 

 

 

Blue Skies Alliance v. Tex. Comm. On Env. Quality, 283 S.W.3d 525 (Tex. App.—Amarillo 2009)

 

TCEQ Granting Air Permit Application Affirmed:  In an opinion related to a controversy over a new coal fired power plant in McLennan County, the appellate court affirmed the district court’s judgment affirming a final order of TCEQ to approve the plant permit application.  Two environmental protection organization plaintiffs challenged the TCEQ’s order after participating in the administrative process and related contested case hearing at the State Office of Administrative Hearings.  Particular challenges related to allegations that: (i) the new plant would impact ozone levels in the Dallas Ft. Worth metropolitan area, a downwind ozone non-attainment area (i.e., an air quality control region not meeting federal ozone standards under the federal Clean Air Act), and (ii) TCEQ failed to require more stringent technological pollution control standards for the plant.  The court overruled the plaintiffs’/appellants’ issues based on applicable evidentiary review considerations.  The opinion included a good review of certain Clean Air Act ozone standards, permitting programs, and the respective roles of EPA and TCEQ.

 

 

Tex. Comm. on Env. Quality v. Kelsoe, 286 S.W.3d 91 (Tex. App. – Austin 2009)

 

Permit Applicant’s Filing Deadline for Petition for Judicial Review Keyed to Executive Director’s Determination:  This appellate court opinion replaced the court’s prior March 2009 opinion (which was withdrawn).  Kelsoe applied for a TCEQ solid waste landfill permit from TCEQ.  TCEQ’s Executive Director determined that the application was administratively incomplete.  Kelso filed his petition for judicial review to challenge TCEQ’s decision with the district court more than thirty days after Kelsoe’s administrative motion to overturn TCEQ’s decision was overruled as a matter of law.   In its opinion, the court cited relevant provisions of Texas Water Code (Chap. 5) and the Texas Health & Safety Code (Chap. 361) indicating that the Executive Director determined when an application was administratively complete and that a person affected by “a ruling, order, decision or other act” of TCEQ must file a petition for review not later than 30 days after such act (Tex. Health & Safety Code §361.321(a) and (c)).   The court rejected arguments of the petitioner to the contrary, including that Executive Director actions (as opposed to TCEQ commissioner actions) should not fall within statutory judicial review provisions.  Thus, the court reversed the district court’s ruling in favor of Kelsoe and dismissed the action for lack of jurisdiction.

 

 

Canyon Reg. Water Auth. v. Guadalupe-Blanco River Auth., 286 S.W.3d 397 (Tex. App.—Corpus Christi 2008)

 

Court Construes TCEQ Rules as It Does Statutes:  This opinion relates to a water supply contract dispute that started as a rate appeal before the TCEQ.  In this context, the appellate court stated that it interpreted TCEQ rules with the force and effect of law in the same manner as it interpreted statutory provisions.  In this regard, the court utilized a rule of statutory construction (words and phrases are read in context and per grammatical rules and common usage) to construe a TCEQ rule.   

 

 

Severance v. Patterson, 566 F.3d 490 (5th Cir. 2009)

 

Fourth Amendment Claim Related to “Rolling Beach Easement” Doctrine Ripe for Adjudication:  This opinion relates to an enforcement controversy over migration of Gulf of Mexico shoreline caused by Hurricane Rita in 2005.  The plaintiff was a California resident and owner of rental property on Galveston Island.  She brought suit for declaratory and injunctive relief after the State of Texas notified her that her rental houses were subject to a removal order under the Texas Open Beaches Act (“OBA”).  See Tex. Nat. Res. Code Ann. Chap. 61.  The opinion included a review of certain aspects of Texas legal principles related to beaches, including potential public acquisition of easements and (per judicial interpretation) the shifting of boundaries over time.  The Fifth Circuit found that the plaintiff’s Fifth Amendment taking claim was not ripe but that her Fourth Amendment seizure claim (applicable to civil as well as criminal seizures) was ripe for adjudication.  Importantly, the Fifth Circuit certified certain questions for the Texas Supreme Court related to uncertainties connected with the rolling beach doctrine.  There was a lengthy dissenting opinion with an introduction critical of Pacific Legal Foundation representation of the plaintiff and its alleged “Libertarian crusade” against laws such as OBA.

 

 

United States v. Viking Resources, Inc., 607 F.Supp.2d 808 (S.D. Tex. 2009)

 

Defendant Entitled to Jury Trial for Natural Resource Damage Claim under Oil Pollution Liability Act:  The United States brought an action against an oil and gas lessee (corporation) and its sole owner, officer, and director under the Oil Pollution Liability Act (“OPA”) related to impact of waters of the United States from a tank battery oil spill.  The government sought to impose strict liability under OPA for removal costs (i.e., cleanup of the spill) and resulting natural resource damages.  This opinion addressed several motions and requests, including the defendants’ requests for a jury trial.  Analyzing the right to trial by jury under the Seventh Amendment and analogous CERCLA cases, the court found that there was a right to a jury trial for the natural resource damage claim (because it was equivalent to monetary damages) but not for the removal cost claim (because it was an equitable remedy as restitution).  Among the other rulings and analyses related to OPA, the court outlined elements of OPA strict liability, interpreted the meaning of a “facility” under OPA (the tank battery itself), discussed veil piercing potentially to reach the individual defendant, and utilized by analogy portions of the Supreme Court’s 1998 Bestfoods CERCLA opinion (related to a parent corporation’s CERCLA liability as an owner of operator).

 

 

United States v. BP Products North America, Inc., 610 F.Supp.2d 655 (S.D.Tex. 2009)

 

Clean Air Act Felony Guilty Plea Accepted:  In a seventy-five page opinion related to the largest criminal fine to date under the federal Clean Air Act (“CAA”) against a corporation, the court accepted the guilty plea to a felony information.  Technically, the plea related to federal enforcement of knowing violation of CAA accidental release prevention requirements and applicable EPA rules requiring a Risk Management Plan.  See 42 U.S.C. Sec. 7413(c)(1) and 7412(r)(7) and 40 CFR Part 68.  Enforcement keyed to a March 2005 explosion at BP’s Texas City refinery that, according to the opinion, killed fifteen people and injured at least 170 people.  The accepted plea agreement imposed a    $50 million fine and three years probation conditioned on compliance with an OSHA settlement agreement and TCEQ Order.  Such agreement and Order added millions of dollars for additional regulatory fines as well as corrective actions.  The opinion also noted that BP had paid over $ 1.6 billion to settle thousands of civil cases.  The lengthy opinion included extensive analysis, including of objections to the plea from victims of the explosion.