Opinion
No. 04-15-00433-CV
04-06-2016
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY & Post Oak Clean Green, Inc., Appellants v. GUADALUPE COUNTY GROUNDWATER CONSERVATION DISTRICT, Appellee
MEMORANDUM OPINION
From the 2nd 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 14-0863-CV
Honorable W.C. Kirkendall, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice REVERSED AND RENDERED
Texas Commission on Environmental Quality (TCEQ) and Post Oak Clean Green, Inc. appeal the trial court's order denying the plea to the jurisdiction filed by TCEQ. We reverse the judgment of the trial court and render judgment dismissing Guadalupe County Groundwater Conservation District's claim for lack of jurisdiction.
BACKGROUND
In December 2011, Post Oak submitted an application to TCEQ seeking a determination of land use compatibility for its proposed solid waste landfill. The proposed landfill site is located within the territory of the Guadalupe County Groundwater Conservation District (the District). In February 2012, the District, after becoming aware of the application, had its consulting geologist prepare a report regarding Post Oak's proposed landfill and its location in relation to the Carrizo-Wilcox aquifer and submitted it to TCEQ. In his report, the geologist explained that Post Oak's landfill is proposed to be located within the boundaries of the District and over the outcrop of the upper Wilcox, which is in violation of the District's Rule 8.1. Rule 8.1, titled "Solid, Hazardous or Radioactive Waste," provides, in relevant part:
In the event that applicable statutes, requirements, or regulations require that the person generating, transporting, applying, disposing or otherwise managing a waste or a sludge obtain a permit from an agency, and where those activities occur within the boundaries of the District, notice of the application must be provided to the District by the applicant within ten days of the date of application. In no event may waste or sludge be permitted to be applied in any manner in any outcrop area of any aquifer within the Guadalupe County Groundwater Conservation District.
In October 2013, Post Oak submitted an application for a municipal solid waste landfill permit to TCEQ. Post Oak sought to construct and operate a solid waste landfill in the same location proposed in its application for a land use compatibility determination: "within the outcrop area of the Carrizo-Wilcox recharge zone."
In April 2014, the District filed suit against Post Oak, seeking "a declaration that the District's Rule 8.1 prohibits the Landfill Applicant from operating a waste disposal facility at the proposed site, which is on the outcrop of the upper Wilcox aquifer; a judgment that Landfill Applicant has violated the District rules, including the requirement that a landfill permit applicant provide notice to the District of its application for a landfill permit, and penalties for violation of District rules."
In response, Post Oak claimed that the "powers the [District] seeks to exercise pursuant to Rule 8.1" exceed the District's authority. Post Oak further argued that Rule 8.1 was preempted by the statutory authority granted to TCEQ under the Solid Waste Disposal Act. Post Oak also filed a plea to the jurisdiction arguing that the District's claim is not ripe, there is no controversy, and the District failed to exhaust its administrative remedies.
See TEX. HEALTH & SAFETY CODE ANN. §§ 361.001-.992 (West 2016).
On September 3, 2014, the District filed its motion for partial summary judgment. On September 24, 2014, the trial court held a hearing during which it continued the summary judgment hearing but heard arguments regarding Post Oak's plea to the jurisdiction. The trial court denied Post Oak's plea to the jurisdiction, but granted Post Oak's request for a continuance and set a new summary judgment hearing for November 4, 2014.
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 and responsibilities under the Solid Waste Disposal Act. TCEQ argued that it was its responsibility, not the District's, to determine whether or not the proposed location of the landfill is proper.
Post Oak subsequently filed a motion to abate the trial court's ruling on the District's motion for partial summary judgment until after TCEQ had an opportunity to present legal arguments. TCEQ then filed a plea to the jurisdiction and cross-motion for partial summary judgment, and a response to the District's amended motion for partial summary judgment. TCEQ argued that the District's declaratory judgment action was not proper because the Uniform Declaratory Judgments Act does not allow for claims that challenge the construction of an agency rule. Further, TCEQ argued that, pursuant to section 361.011(b) of the Texas Health and Safety Code, it enjoyed exclusive jurisdiction over agency permitting decisions related to municipal solid waste landfills. As an alternative to its exclusive jurisdiction argument, TCEQ argued that it had primary jurisdiction over the landfill-permitting process. Finally, TCEQ argued that the issue raised in the District's lawsuit was not ripe.
TEX. HEALTH & SAFETY CODE ANN. § 361.011 (West 2016) (providing for TCEQ's jurisdiction over the management of municipal solid waste).
On January 16, 2015, the trial court signed an order granting the District's motion for partial summary judgment. The trial court ruled, in part, that Rule 8.1 was not preempted by the Solid Waste Disposal Act.
The District then amended its petition to drop its claim regarding whether Post Oak violated Rule 8.1 by failing to provide the District with notice of its landfill permit application. Its only remaining claim sought "a declaration pursuant to the Uniform Declaratory Judgments Act that disposal of solid waste at the site proposed by Post Oak violates the District's Rule 8.1."
While the District's lawsuit was pending, TCEQ continued to process Post Oak's landfill permit application. On April 16, 2015, the application was referred to the State Office of Administrative Hearings for a contested case evidentiary hearing on the merits of the application and whether it complies with TCEQ rules. On June 30, 2015, TCEQ's executive director responded to a public comment that the proposed landfill would violate the District's rules by noting that the "Commission is not authorized to determine whether the landfill would violate the [District's] rule." The executive director recommended that the permit be issued to Post Oak.
On June 23, 2015, the trial court signed an order denying TCEQ's plea to the jurisdiction. Both TCEQ and Post Oak now appeal.
STANDARD OF REVIEW
A plea to the jurisdiction challenges the court's authority to decide a case. City of Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015) (per curiam); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a court has subject-matter jurisdiction is a question of law reviewed de novo, Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002), and the plaintiff bears the burden of affirmatively demonstrating the trial court's jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In determining whether the District has met its burden, we liberally construe the pleadings, taking all factual assertions as true and looking to the District's intent. Id.
DISCUSSION
Both TCEQ and Post Oak make similar arguments on appeal. TCEQ presents the following issues: (1) whether the District's declaratory judgment claim is unripe, barred under the doctrine of redundant remedies, or both; (2) whether the District failed to establish the redressability component of standing with respect to either its procedural claim or its substantive claim; and (3) whether the District's substantive claim is barred because it falls within TCEQ's exclusive (or, alternatively, primary) jurisdiction. Post Oak argues that the trial court erred in denying TCEQ's plea to the jurisdiction because: (1) the District's claim is not ripe; (2) TCEQ has exclusive (or, alternatively, primary) jurisdiction over the siting of municipal solid waste landfills; and (3) the District's Rule 8.1 cannot be enforced through the Uniform Declaratory Judgments Act.
Ripeness
Because it is a threshold issue, we begin by discussing ripeness. TCEQ and Post Oak argue that the District's suit for declaratory judgment is not ripe because Post Oak's permit application is still pending with TCEQ, and no harm can come to pass unless or until the permit is issued.
Subject matter jurisdiction requires that the party bringing the suit have standing, that there is a live controversy between the parties, and that the case be justiciable. State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). Ripeness is an element of subject matter jurisdiction, and is a legal question subject to de novo review. Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In evaluating ripeness, we consider whether, at the time a lawsuit is filed, the facts are sufficiently developed so that an injury has occurred or is likely to occur, rather than being contingent or remote. Robinson, 353 S.W.3d at 755; Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-52 (Tex. 2000); Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). The ripeness analysis focuses on whether the case involves uncertain or contingent future events that may not occur as anticipated or may not occur at all. Robinson, 353 S.W.3d at 755-56; Patterson, 971 S.W.2d at 442. A case is not ripe when determining whether a plaintiff has a concrete injury depends on contingent or hypothetical facts. Waco Indep. Sch. Dist., 22 S.W.3d at 852. The ripeness doctrine serves to avoid premature adjudication and aims to conserve judicial time and resources for real and current controversies. Patterson, 971 S.W.2d at 442-43. It also protects state agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging party. Id. at 443.
The District counters that its request for declaratory judgment is proper because it is merely asking for a declaration that Rule 8.1 prohibits Post Oak from siting a landfill at the location proposed in its application. Declaratory judgment actions are also subject to a ripeness review. See Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 393 (Tex. App.—Fort Worth 2008, no pet.) (citing Firemen's Ins. Co. of Newark, N.J. v. Burch, 442 S.W.2d 331, 333 (Tex. 1968) (Declaratory Judgments Act does not empower courts to issue advisory opinions)). A declaratory judgment action may be considered premature if governmental proceedings which will impact the parties' respective rights remain pending. Bay Cherry Hill, 257 S.W.3d at 393. In City of Anson v. Harper, 216 S.W.3d 384, 390, 394-95 (Tex. App.—Eastland 2006, no pet.), the court held that the plaintiffs' declaratory judgment action was not ripe to the extent it sought an adjudication of the parties' rights if a permit were to be granted by TCEQ, thus allowing the City to proceed with its landfill plans. Harper relied on two federal decisions holding that a controversy over a proposed landfill was not ripe because regulatory approval of the landfill was still pending. Id. at 390; see Monk v. Huston, 340 F.3d 279, 283 (5th Cir. 2003); see also Smith v. City of Brenham, Tex., 865 F.2d 662, 663-64 (5th Cir. 1989).
The purpose of the Uniform Declaratory Judgments Act is "to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations[.]" TEX. CIV. PRAC. & REM. CODE ANN. § 37.002(b) (West 2015).
Similarly, in Save Our Springs Alliance v. City of Austin, 149 S.W.3d 674, 683-85 (Tex. App.—Austin 2004, no pet.), the court held that there was no jurisdiction to grant a declaratory judgment that a development agreement was invalid because no permit had yet been issued. In Tex. A & M Univ. v. Hole, 194 S.W.3d 591, 593 (Tex. App.—Waco 2006, pet. denied), the court held that a declaratory judgment action concerning student disciplinary proceedings was not ripe because the students had not yet completed the university disciplinary process. The court further noted that "[s]eeking a declaration of rights under the Uniform Declaratory Judgments Act is not sufficient to avoid the ripeness doctrine. This act is merely a procedural device for deciding cases already within a court's jurisdiction rather than a legislative enlargement of a court's power, permitting the rendition of advisory opinions." Id. (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)).
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. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995); Tex. Dep't of Pub. Safety v. Moore, 985 S.W.2d 149, 153 (Tex. App.—Austin 1998, no pet.). "To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute." Beadle, 907 S.W.2d at 467 (quoting Bexar-Medina-Atascosa Counties Water Control & Improvement Dist. No. 1 v. Medina Lake Protection Ass'n, 640 S.W.2d 778, 779-80 (Tex. App.—San Antonio 1982, writ ref'd n.r.e.)).
Thus, we must decide whether a "justiciable controversy" exists in the case before us. The District has couched its lawsuit as a mere attempt to seek a declaration of the rights of the parties under its Rule 8.1, but the District's pleadings demonstrate that it is in fact challenging Post Oak's permit application. The pleadings and evidence further indicate that TCEQ has not yet granted Post Oak's application to build the landfill at issue. It is unknown whether TCEQ will actually issue Post Oak's permit. The permit may be denied, in which case the landfill will never be constructed. Or, a permit may be issued under terms that are satisfactory to the District. Additionally, even though TCEQ's executive director recommended that the permit be issued, such a recommendation is not binding on TCEQ. See, e.g., Tex. Dep't of Pub. Safety v. Deputy Sheriff's Ass'n of Bexar County, No. 04-07-00233-CV, 2007 WL 3355626, at *3 (Tex. App.—San Antonio Nov. 14, 2007, pet. denied) (mem. op.); Save our Springs Alliance, 149 S.W.3d at 684-85. Thus, because the landfill permit is still pending with TCEQ, we cannot agree that the District has suffered a concrete injury or will be imminently harmed. See Robinson, 353 S.W.3d at 755.
After reviewing the record, we conclude that any controversy between the District and TCEQ at this time has not yet matured to a ripe controversy sufficient to confer jurisdiction on the trial court. The trial court therefore erred in denying TCEQ's plea to the jurisdiction. While appellants raise several challenges to the trial court's jurisdiction, the ripeness issue is dispositive. See TEX. R. APP. P. 47.1; Trinity Settlement Srvcs., LLC v. Tex. State Sec. Bd., 417 S.W.3d 494, 505 (Tex. App.—Austin 2013, pet. denied).
CONCLUSION
We reverse the trial court's judgment denying TCEQ's plea to the jurisdiction, and render judgment dismissing the District's claim for lack of jurisdiction.
The District is not irrevocably harmed by this dismissal. Because the case is dismissed without prejudice, if the District chooses, it can re-file and develop a record demonstrating that the claims have ripened, allowing a new suit to proceed. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 853 (Tex. 2000). --------
Rebeca C. Martinez, Justice