Michael R. Goldman, Carrick Brooke-Davidson, and Jean M. Flores 2016-12-20 18:00:13
Last year environmental law saw significant holdings from Texas district courts and the Texas Supreme Court, as well as the U.S. Supreme Court. Although space allows only a brief mention of the cases that follow, for the environmental practitioner, all are worth reading in full. In U.S. Army Corps of Engineers v. Hawkes Co., Inc.,1 the U.S. Supreme Court unanimously found a right of judicial review for the U.S. Army Corps of Engineers’ jurisdiction determinations, which were found to constitute “final agency actions,” thus triggering a right of review that is crucial to a landowner whose property is determined to contain “waters of the U.S.” In BCCA Appeal Group, Inc. v. City of Houston,2 the Texas Supreme Court held that the city of Houston air quality ordinance was preempted by the Texas Clean Air Act. In an effort to reduce the confusion resulting from varied uses of the term “nuisance,” the Texas Supreme Court held in Crosstex North Texas Pipeline, L.P. v. Gardiner, 3 that the term refers to the particular type of legal injury that can support a claim or cause of action seeking legal relief, not a cause of action or the defendant’s conduct or operations. In other words, the term “nuisance” describes a type of injury that the law has recognized can give rise to a cause of action because it is an invasion of a plaintiff’s legal rights. The court also clarified that the term “nuisance” does not refer to the “wrongful act” or to the “resulting damages,” but only to the legal injury—the interference with the use and enjoyment of property— that may result from the wrongful act and result in the compensable damages. In Morello v. State,4 the Austin appeals court held that an officer of a limited liability company was not individually liable because: (1) the state failed to invoke any veil-piercing theory that might apply to him; and (2) the state could not prove (and even disclaimed) that he participated in any tortious or fraudulent conduct that would have led to his personal liability as an agent of the company. Lawsuits brought under section 7.351 of the Texas Water Code by contingency counsel on behalf of governmental entities continue to raise eyebrows. In Harris County and Texas Commission on Environmental Quality v. International Paper Company,5 the Houston appeals court affirmed a jury’s take-nothing verdict in which Harris County sought $1.6 billion in penalties in addition to $10 million in attorneys’ fees. Before trial, the defendants claimed that Harris County’s enforcement violated their due process rights, among other things. The state of Texas, which is joined as an indispensable party, has been sharing in the settlement proceeds. However, that relationship might now be strained in light of In Re: Volkswagen Clean Diesel Litigation, in which the state claims that local governments are prevented from suing Volkswagen related to improper air emissions from its vehicles. We expect many of these issues to be further addressed, challenged, and refined in the coming year. Notes 1) 136 S. Ct. 1807 (2016). 2) 496 S.W.3d 1 (Tex. 2016). 3) 2016 WL 3483165 (Tex. June 24, 2016). 4) 2016 WL 2742380 (Tex. App.—Austin 2016, pet. filed). 5) 2016 WL 5851895 (Tex. App.—Houston [1st Dist.] 2016, no pet.). MICHAEL R. GOLDMAN CARRICK BROOKE-DAVIDSON JEAN M. FLORES are shareholders in the environmental law firm of Guida, Slavich & Flores. Goldman and Flores practice in the firm’s Dallas office, and Brooke-Davidson practices in the Austin office.
Published by State Bar of Texas. View All Articles.
This page can be found at http://mydigimag.rrd.com/article/Environmental+Law/2669047/370428/article.html.