Articles Posted in Environmental Law

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At issue was whether the Texas Solid Waste Disposal Act (Act) preempts, and thus invalidates, a local antilitter ordinance prohibiting merchants from providing “single use” plastic and paper bags to customers for point-of-sale purchases. The trial court upheld the ordinance, which makes it unlawful for any “commercial establishment” to provide or sell certain plastic or paper “checkout bags” to customers. Specifically, the court ruled that the ordinance was not void because reasonable constructions existed under which both the Act and the ordinance could be effective. The court of appeals reversed, concluding that the ordinance was preempted by the Act. The Supreme Court reversed, holding (1) the ordinance regulated solid waste containers within the Act’s meaning and that the ordinance was not “authorized by state law"; and (2) therefore, the Act preempted the ordinance. View "City of Laredo, Texas v. Laredo Merchants Ass’n" on Justia Law

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The Supreme Court reversed the decision of the court of appeals affirming the district court’s dismissal of Petitioner’s appeal of an adverse ruling by the Texas Commission on Environmental Quality (TCEQ) for failing to serve citation on the TCEQ within thirty days of filing the petition on the district court as required by the Texas Clean Air Act, see Tex. Health & Safety Code 382.032, holding that the Act did not require dismissal under the circumstances of this case. Petitioner did not formally serve the TCEQ until fifty-eight days after filing its petition with the district court. The district court dismissed Petitioner’s request for judicial review. The court of appeals upheld the dismissal. In reversing, the Supreme Court held (1) the Clean Air Act, rather than the Water Code, controlled Petitioner’s request for judicial review in the district court, and therefore, the thirty-day service requirement was applicable; and (2) because the Legislature expressed no particular consequence for failing to meet the thirty-day statutory deadline and none was logically necessary, the Legislature’s presumed intent was that the requirement be directory rather than mandatory and that late service did not result in the automatic dismissal of Petitioner’s appeal. View "AC Interests L.P. v. Texas Commission on Environmental Quality" on Justia Law

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Both Bernard Morello and White Lion Holdings, LLC could be assessed civil penalties under the Texas Water Code for actions that Morello performed as an employee of White Lion. The court of appeals reversed the judgment of the trial court, holding that because the State failed to establish that Morello could be held individually liable as a matter of law for the alleged violations, the trial court erred in granting summary judgment for the State. The Supreme Court reversed the judgment of the court of appeals and reinstated that of the trial court, holding (1) Morello was a “person” subject to penalties under the Water Code individually; (2) the court of appeals had jurisdiction over Morello’s appeal; and (3) the penalties assessed against Morello were not unconstitutional. View "State v. Morello" on Justia Law

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Both Bernard Morello and White Lion Holdings, LLC could be assessed civil penalties under the Texas Water Code for actions that Morello performed as an employee of White Lion. The court of appeals reversed the judgment of the trial court, holding that because the State failed to establish that Morello could be held individually liable as a matter of law for the alleged violations, the trial court erred in granting summary judgment for the State. The Supreme Court reversed the judgment of the court of appeals and reinstated that of the trial court, holding (1) Morello was a “person” subject to penalties under the Water Code individually; (2) the court of appeals had jurisdiction over Morello’s appeal; and (3) the penalties assessed against Morello were not unconstitutional. View "State v. Morello" on Justia Law

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Respondent, who owned a ranch, sued Petitioner, which produced natural gas on the ranch, for underpayment of royalties and underproduction of its lease. The parties resolved their dispute with two agreements that contained an arbitration provision. Respondent later sued Petitioner for environmental contamination and improper disposal of hazardous materials on the ranch. Before arbitration commenced, Respondent asked the Railroad Commission (RRC) to investigate contamination of the ranch by Petitioner. Meanwhile, an arbitration panel awarded Respondent $15 million for actual damages and $500,000 for exemplary damages. At issue on appeal was whether the RRC had exclusive or primary jurisdiction over Respondent’s claims, precluding the arbitration, and whether the arbitration award should be vacated for the evident partiality of a neutral arbitrator or because the arbitrators exceeded their powers. The Supreme Court answered in the negative, holding (1) because Respondent’s claims were inherently judicial, the doctrine of primary jurisdiction did not apply, and vacatur was not warranted for failure to abate the arbitration hearing; and (2) the arbitrators did not exceed their authority. View "Forest Oil Corp. v. El Rucio Land & Cattle Co." on Justia Law

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Coyote Lake Ranch, about 40 square miles, in the Texas Panhandle, is used for agriculture, raising cattle, and hunting. It is primarily grass-covered sand dunes, with some is irrigated cropland. Water comes from the Ogallala Aquifer, the principal source of water for the Texas High Plains, including the City of Lubbock, about 90 miles southeast of the Ranch. In 1953, during “‘one of the most devastating droughts in 600 years,’” the Ranch deeded its groundwater to the city, reserving water for domestic use, ranching operations, oil and gas production, and agricultural irrigation, by one or two wells in each of 16 specified areas. In 2012, the city announced plans to increase water-extraction efforts on the Ranch, drilling as many as 20 test wells in the middle of the Ranch, followed by 60 wells across the Ranch. The Ranch objected that the proposed drilling would increase erosion and injure the surface unnecessarily. The court of appeal dissolved a temporary injunction entered in favor of the Ranch. The Supreme Court of Texas remanded, agreeing that an injunction “so broad as to enjoin a defendant from activities which are a lawful and proper exercise of his rights” was an abuse of discretion. The court cited the accommodation doctrine as applicable to a interests in groundwater: a lessee has an implied right to use the land as necessary for production and removal of the resource, with due regard for the landowner’s rights. View "Coyote Lake Ranch, LLC v. City of Lubbock" on Justia Law

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At issue in this case was amendments to a Houston air-quality ordinance (the Ordinance). BCCA Appeal Group filed suit seeking a declaratory judgment that Ordinance was invalid and unenforceable under the Texas Clean Air Act, the Water Code, and the Texas Constitution. The trial court granted summary judgment for BCCA, concluding that the Ordinance violated the Texas Constitution and was preempted by the Act, and enjoined the City from enforcing the Ordinance. The court of appeals reversed, concluding that the Ordinance was consistent with the Act and the Water Code and did not violate the nondelegation doctrine of the Texas Constitution by incorporating Texas Commission on Environmental Quality (TCEQ) rules in such a way as to include future amendments. The Supreme Court reversed in part and affirmed in part, holding (1) the Ordinance’s enforcement provisions and registration requirement are preempted and therefore unenforceable; but (2) the Ordinance’s incorporation of TCEQ rules does not violate the nondelegation doctrine of the Texas Constitution. View "BCCA Appeal Group, Inc. v. City of Houston" on Justia Law

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McGinnes Industrial Waste Corporation dumped pulp and paper mill waste sludge into disposal pits near the San Jacinto River in Pasadena, Texas (the site). After environmental contamination was discovered at the site, the Environmental Protection Agency (EPA) instituted superfund cleanup proceedings under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). During the period that McGinnes was dumping waste at the Site, it was covered by standard-form commercial general liability (CGL) insurance policies issued by Phoenix Insurance Company and Travelers Indemnity Company (together, the Insurers). McGinnes requested a defense in the EPA proceedings from the Insurers. The Insurers refused, determining that the proceedings were not a “suit” under the policy. McGinnes sued the insurers in federal court seeking a declaration that the policies obligated them to defend the EPA’s CERCLA proceedings. The district court granted the Insurers’ motion for partial summary judgment on the duty-to-defend issue. The U.S. Court of Appeals for the Fifth Circuit certified a question regarding the issue to the Texas Supreme Court. The Supreme Court answered that “suit” in the CGL policies at issue must also include CERCLA enforcement proceedings by the EPA. View "McGinnes Indus. Maint. Corp. v. Phoenix Ins. Co." on Justia Law

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Steven Lipsky, concerned that an oil and gas operator close to his property (“Range”), had some responsibility for contaminating his ground water, complained about the gas in his well to the Environmental Protection Agency (EPA), the Texas Railroad Commission, and the media. Alisa Rich, an environmental consultant, confirmed the presence of gases in the well. The Railroad Commission concluded that Range’s operations were not the source of the contamination. Lipsky and his wife, Shyla, sued Range, alleging negligence. Range counterclaimed against the Lipskys and filed a third-party claim against Rich, alleging defamation, among other claims. The trial court dismissed the Lipskys’ claims as an improper collateral attack on the Commission’s determination and declined to dismiss Range’s claims against the Lipskys and Rich. The court of appeals granted mandamus relief in part, concluding that the Texas Citizens Participation Act (TCPA) required the dismissal of Range’s claims against Shyla and Rich but did not require dismissal of Range’s claims against Lipsky. Both Range and Lipsky sought mandamus relief in the Supreme Court. The Court denied relief, holding (1) the trial court properly considered circumstantial evidence when considering Lipskys’ motion to dismiss under the TCPA; and (2) the court of appeals did not err in its disposition of the proceedings below. View "In re Lipsky" on Justia Law

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A landowner sued its neighbor, the operator of an adjacent wastewater disposal facility, alleging that wastewater had migrated into the deep subsurface of its land, possibility contaminating the groundwater beneath it. The jury returned a verdict in favor of the wastewater disposal facility. After a series of appeals, the court of appeals reversed the jury’s verdict. The Supreme Court reversed the judgment of the court of appeals and reinstated the trial court’s judgment that the wastewater disposal facility take nothing, holding (1) the jury instruction properly included lack of consent as an element of a trespass cause of action that a plaintiff must prove; (2) the trial court properly denied the landowner’s motion for directed verdict on the issue of consent; and (3) there is no need to address the remaining question of whether deep subsurface wastewater migration is actionable as a common law trespass in Texas. View "Envtl. Processing Sys., LC v. FPL Farming Ltd." on Justia Law