San Antonio Court of Appeals held Conservation District’s claims against TCEQ and permit applicant are not yet ripe.

Texas Commission on Environmental Quality & Post Oak Clean Green, Inc. v. Guadalupe County Groundwater Conservation District 04-15-00433-CV (Tex. App. – San Antonio, April 6, 2016)

This is an interlocutory appeal from the denial of a plea to the jurisdiction where the San Antonio court reversed.

Post Oak Clean Green, Inc. applied for a permit to build and operate a proposed landfill. The landfill site is located within the territory of the Guadalupe County Groundwater Conservation District (“the District”).  The District believed the proposed landfill would harm the nearby Carrizo Wilcox aquifer and opposed the site. The District filed suit against Post Oak noting the site violated TCEQ local Rule 8.1 which states no waste or sludge shall be permitted “in any outcrop area of any aquifer” within the District. Post Oak filed a plea to the jurisdiction arguing Rule 8.1 was preempted by the Solid Waste Disposal Act, that the District’s claim is not ripe, there is no live controversy, and the District failed to exhaust its administrative remedies. TCEQ subsequently filed its Petition in Intervention, contending that the relief requested by the District is preempted by the Solid Waste Disposal Act and would adversely affect the ability of TCEQ to carry out its duties.  It then also filed a plea. Its plea asserted the Declaratory Judgments Act does not allow for claims that challenge the construction of an agency rule. The trial court denied both pleas and the TCEQ and Post Oak appealed.

The court first held a declaratory judgment action may be considered premature if governmental proceedings which will impact the parties’ respective rights remain pending.  A declaratory judgment is proper only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought. The District’s pleadings demonstrate that it is in fact challenging Post Oak’s permit application, not merely seeking a declaration of Rule 8.1’s applicability. The pleadings and evidence further indicate that TCEQ has not yet granted Post Oak’s application to build the landfill. It is unknown whether TCEQ will actually issue Post Oak’s permit. Thus, because the landfill permit is still pending with TCEQ, the court cannot agree that the District has suffered a concrete injury or will be imminently harmed. The trial court therefore erred in denying the pleas to the jurisdiction as no live controversy exists.

If you would like to read this opinion click here. Panel: Justice Angelini, Justice Barnard and Justice Martinez.  Memorandum Opinion by Justice Martinez.  The attorney listed for Guadalupe County is Marisa Perales.  The attorneys listed for the TECEQ are Cynthia Woelk, Bill Davis and Nancy Elizabeth Olinger.