NO. 04- 15 -00433- CV

IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY and

POST OAK CLEAN GREEN, INC., Appellants ,
v . GUADALUPE COUNTY GROUNDWATER CONSERVATION DISTRICT,

Appellee

.

BRIEF OF AMICI CURIAE WASTE MANAGEMENT OF TEXAS, INC. AND TEXAS ASSOCIATION OF BUSINESS

Bryan J. Moore State Bar No. 24044842 bmoore@bdlaw.com B EVERIDGE & D IAMOND , P.C. 98 San Jacinto, Suite 1420 Austin, Texas 78701 Telephone: 512. 891 .8000 Facsimile: 512.391.8099 Amanda M. Martin State Bar No. 24074744 amartin@txbiz.org T EXAS A SS ’ N OF B USINESS 1209 Nueces Street Austin , Texas 78701 Telephone: 512.637.7708 Facsimile : 512.477.0836 COUNSEL FOR COUNSEL FOR WASTE MANAGEMENT TEXAS ASSOCIATION OF TEXAS, INC. OF BUSINESS ACCEPTED 04-15-00433-cv FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 11/4/2015 1:21:15 PM KEITH HOTTLE CLERKi IDENTITY OF PARTIES AND COUNS EL Amici curiae adopt A ppellants’ lists of parties and counsel and supplement those lists as follows:
Amici Curiae Waste Management of Texas, Inc. (“Waste Management”) Texas Association of Business (“TAB”) Counsel for Waste Management Bryan J. Moore State Bar No. 24044842 bmoore@bdlaw.com B EVERIDGE & D IAMOND , P.C. 98 San Jacinto, Suite 1420 Austin, Texas 78701 Telephone: 512.891.8000 Facsimile: 512.391.8099 Counsel for TAB
Amanda M. Martin State Bar No. 24074744 amartin@txbiz.org T EXAS A SS ’ N OF B USINESS 1209 Nueces Street Austin, Texas 78701 Telephone: 512.637.7708 Facsimile: 512.477.0836ii RULE 11 ( c ) STATEMENT In accordance with Tex. R. App. P. 11(c), amici curiae disclose that Waste Management is the source of any fee paid or to be paid for preparing this brief, and that such fee, if paid, will be paid to counsel for Waste Management.iii TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL

................................ ............................. i RULE 11(c) STATEMENT

................................ ................................ ...................... ii STATEMENT OF THE CASE

................................ ................................ .................. 5 STATEMENT REGARDING ORAL ARGUMENT

................................ ............... 5 ISSUES PRESENTED

................................ ................................ ............................... 5 STATEMENT OF FACTS

................................ ................................ ........................ 5 I. Waste Management’s Interest In This Case

................................ .......... 5 II. TAB’s Interest In This Case

................................ ................................ .. 8 SUMMARY OF THE ARGUMENT

................................ ................................ ...... 10 ARGUMENT

................................ ................................ ................................ ........... 11 I. The District Has No Authority To Supersede The Commission’s Exclusive Jurisdiction Over The Permitting, Siting, Construction, and Operation Of MSW Facilities

................................ ............................. 11 A. The District’s Lack Of Authority Is Evident From The Regulatory Framework For MSW Landfill Permitting

................................ ... 11 B. The District Cannot Meet The Criteria That The Legislature Has Established For Special Districts To Have A Role In Solid Waste Management

................................ ................................ .................. 15 C. The District Cannot Reasonably Claim The Authority To Control Land Use And Development That The Legislature Has Historically Denied To Counties

................................ .................. 16 D. The District Cannot Dictate The Outcome Of The Permitting Process, But It Is Free To Participate In That Process

................. 19 II. The District’s Claim Is Not Ripe

................................ ......................... 21 PRAYER

................................ ................................ ................................ .................. 22iv TABLE OF AUTHORITIES PAGE
30 T EX
. A DMIN
. C ODE § 330.23

................................ ................................ .. 12, 13, 14
30 T EX
. A DMIN
. C ODE § 330.23(d)

................................ ................................ .......... 15
30 T EX
. A DMIN
. C ODE § 330.71(b).

................................ ................................ ........... 6
30 T EX
. A DMIN
. C ODE §§ 55.152

- .156.

................................ ............................ 19, 20
T EX
. H EALTH & S AFETY C ODE § 361.011(a)

................................ ............................ 12
T EX
. H EALTH & S AFETY C ODE § 361.067

................................ ................................ 13
T EX
. H EALTH & S AFETY C ODE § 361.165.

................................ ........................ 15, 16
T EX
. H EALTH & S AFETY C ODE § 3 63.112(a)

................................ ............................ 16
T EX
. W ATER C ODE § 26.127(a).

................................ ................................ .............. 125 STATEMENT OF THE CAS E Amici curiae adopt A ppellants’ statements of the case.
STATEMENT REGARDING ORAL ARGUMENT Amici curiae support A ppellants’ request s for oral argument, but, per Tex. R. App. P. 39.5, do not seek to share time with A ppellants at oral argument or to otherwise orally argue the case to the C ourt. ISSUES PRESENTED Amici curiae adopt A ppellants’ statements of the issues presented , but argue herein only a subset of those issues, as set forth below

. STATEMENT OF FACTS Amici curiae adopt A ppellants’ statements of facts and supplement them
as follows.
I. Waste Management’s Interest In This Case Amicus curiae Waste Management and its affiliates and subsidiaries own and/or operate over 23 commercial solid waste facilities in Texas, including 14
active municipal solid waste (“MSW”) landfill facilities . These facilities serve the waste disposal needs of residents , businesses, and municipalities throughout Texas. Each of these facilities is permitted to operate by the Texas Commission on Environmental Quality (“TCEQ” or the “Commission”). The permitting and construction of landfill facilities require significant capital6

expenditures and investments , particularly in the early stages of the project. Because of this, and to ensure a long

- term, stable supply of waste disposal capacity in the State, MSW landfill permits are normally issued by TCEQ for
the life of the site. See 30 Tex. Admin. Code § 330.71(b). Waste Management has a n interest in ensuring that if an application for a MSW permit satisfies all applicable statutory and regulatory requirements, then the application will be granted and the permit will be issued by the Commission authorizing the construction and operation of the proposed MSW facility , and that the TCEQ

- issued permit w ill remain valid and effective (unless amended, suspended, or revoked by the Commission in accordance with the applicable legal requirements). These have been the fundamental tenets of the MSW

r egulatory program in Texas since its inception. Waste Management has invested significantly in MSW projects and facilities throughout the State, and has entered into long

- term contracts for waste disposal, with the understanding
that this core regulatory structure could not be undone by a groundwater
conservation district or other special district at the stroke of a pen. This case implicates the exclusive jurisdiction of the Commission in the area of MSW permitting, and whether the Commission’s permittin g process, or a MSW permit issued by TCEQ , may be vetoed by a groundwater conservation
district or other special district

. These issues are of great importance to Waste7

Management and its customers. Any outcome of this case that may allow opponents of MSW projects to circumvent TCEQ’s public participation process, or that may jeopardize the primacy of a TCEQ

- issued MSW permit, or otherwise jeopardize Waste Management’s ability to site, construct, operate, and expand a MSW facility per the terms of a permit issued by TCEQ, could , in turn, put in jeopardy the viability of Waste Management’s core business and its ability to provide reliable, long

- term waste disposal services to meet its customers’ needs. The viability of Waste Management’s business depends upon u niform, statewide standards for the permitting, siting, construction, and operation of
MSW facilities . Absent such uniformity, there is regulatory uncertainty, and
such uncertaint y hinders the significant capital expenditures and investments necessary to develop and maintain the MSW disposal capacity sufficient to
meet the needs of Waste Management’s customers and the State’s rapidly growing population. A multi

- decade MSW facility project becomes substantially more risky, and proportionately less viable , if years of work and
investment could be nullified by a groundwater conservation district or other special district or entity with no authority over sol id waste management.
Allowi ng such entities to block TCEQ permits for MSW facilities , or to limit or prohibit the siting of TCEQ

- permitted MSW facilities , could potentially lead to8

a regulatory free

- for

- all, with local interests and bias dictating which MSW
facilities may be permitt ed, where such facilities may be located, and which existing, permitted MSW facilities must close. Such a regulatory environment would undoubtedly result in local, regional, and statewide reductions in MSW disposal capacity, both existing and projected.
II. TAB’s Interest In This Case TAB is Texas’ leading employer organization. Representing companies from the largest multi

- national corporations to small businesses in nearly every community in Texas, TAB works to improve the State’s business climate and to help make the Texas economy the strongest in the world. For more than 90 years, TAB has been on the front lines of the legislative, regulatory, and judicial battlefields, fighting for issue s that impact business to ensure that employers’ opinions are being heard. In addition, TAB is th e state chamber of commerce representing over 200 local chambers and the many thousands of Texas businesses that support those local business organizations. TAB’s membership includes national, regional, and local waste management companies that own and/or operate MSW facilities in Texas, as well as countless
other businesses that rely upon a stable, long

- term supply of waste disposal capacity throughout the State and a state environmental permitting process that is not subordinate to vague regulations that can be wielded arbitrarily by special9

districts . Indeed, almost every TAB member business holds an environmental permit from the State, or utilizes, either directly or indirectly, one or more of the
State’s MSW facilities

. Accordingly, TAB’s broad interest in a consistent and predictable regulatory environment and narrow interest in the particular legal issues presented in this case are aligned with that of Waste Management, as
discussed above. Allowing groundwater conservation districts or o ther special districts , or any other governmental entities with out specific authority over solid waste management , to usurp the statewide role of the Commission and dictate where
MSW facilities may be located on a local or regional level would place TAB’s member companies at a competitive disadvantage within and outside of the
State

. Since businesses pay well over half of the tax burden in Texas, TAB’ s members also have a direct interest in local and state agencies operating as efficiently as possible. Allowing local interests to usurp the established roles of state agencies that have been granted authority over solid waste management will
result in con fusion and conflict between juris dictions. These entities must recover these cost increases through t axes, further magnifying the impact on Texas
businesses and consumers. In fact, faced with the regulatory confusion that this10

case exemplifies, many businesses may elect not to locate in Texas at all, or may elect not to invest in expansion of facilities that are located in the State.

SUMMARY OF THE ARGUM ENT T he Commission has exclusive jurisdiction over the permitting, siting , construction, and operation of MSW facilities in Texas

. Additionally , the Guadalupe County Groundwater Conservation District’s (the “District’s”) claim is not ripe

. The Court’s affirmation of either argument requires dismissal of the
District’s lawsuit. By writing a rule prohibiting waste disposal in certain areas, and seeking

to validate that rule through a declaratory judgment act ion in district court, the
District attempts to usurp the Commission’s jurisdiction over the permitting, siting, construction, and operation of MSW facilities in Texas. By law, the Commission’s jurisdiction over such matters is exclusive , and the District has no authority to supersede it

. The District has not yet been harmed, and may never be harmed . The
District will have recourse in the courts if it exhausts its administrative remedies
and if the Commission ultimately decides to issue Post Oa k Clean Green, Inc. ’s (“Post Oak’s”) permit. Until such time, the District’s claim is not ripe.11 ARGUMENT I. The District Has No Authority To Supersede The Commission ’s Exclusive Jurisdiction Over The Permitting, Siting , Construction, and Operation Of MSW Facilities For the reasons set forth in Appellants’ briefs, the Commission has exclusive jurisdiction over the permitting, siting, construction, and operation of
MSW facilities in Texas. The District has no such jurisdiction and cannot effectively veto a TCEQ

- issued permit for the siting, construction, and operation
of a MSW facility

. 1
A. T he District’s Lack Of Authority Is Evident From The Regulatory Framework For MSW Landfill Permitting While the Commission’s exclusive jurisdiction over matters relating to MSW management is well documented in Appellants’ briefing on this issue, it is also reflected in the permitting process for MSW landfills

– a process that Waste Management and TAB know well from experience. In addition to the general public participat ion process for TCEQ permitting decisions, which allows those potentially affected by a proposed permit to voice their concerns, some entities
have a defined role in the permitting of MSW landfills that is expressly recognized by law . The Di 

### s trict is not among those entities. And while some entities have a legally

- recognized role to play, no entity plays a greater role than the Commission,

1 This argument is consistent with, and amicus curiae herein adopts, Appellant TCEQ’s argument regarding redressability. See Br. of Appellant TCEQ at 31

- 36.12

which has the final say in the permitting, siting, construction, and operation of
MSW landfills in Texas

.
T he Water Code directs all “state agencies engaged in water quality or water pollution control activities” to “coordinate those activities with the [ C ] ommission.” Tex. Water Code § 26.12 7(a) . Additionally, under the Solid Waste Disposal Act, the Commission must “coordinate municipal solid waste
activities

. ” Tex. Health & Safety Code § 361.011(a) ; see also id

. § 361.017(a) ( requiring TCEQ to “ coordinate industrial solid waste activities and hazardous municipal waste activities”) . While such coordination may occur at any time (and at various and multiple times) throughout the multi

- decade period spanning the siting, construction, and operation of a MSW landfill, it is specifically provided for in the MSW landfill permitting process, per TCEQ’s regulations. For instance, under 30 Tex. Admin. Code § 330.23, TCEQ is required to

“ coordinate the review of all permit applications ” for MSW landfills with certain state and federal agencies. Groundwater conservation districts, such as the District, are not among the agencies that TCEQ must coordinate with regarding the Commission’s review of an application for a MSW landfill permit. 2 Furthermore,

2 Additionally, permit applicants may also be required to document, in their application, that they have coordinated with certain state and/or federal agencies, councils of government, and/or local governments regarding the application or proposed landfill. See, e.g. , id

. § 330.61(i)(4)

- (5), (m)(2), (n)(2), (o), (p). Here again, groundwater conservation districts are not among the listed entities that must be consulted.13

the Commission is required only to “solicit recommendations” or “comments” from each listed agency, or to otherwise “coordinate” with each agency, regarding the limited portions of the MSW landfill permit application that concern matters within the agency’ s area
- specific jurisdiction (e.g., coordinating with and soliciting recommendations from the Texas Department of Transportation (“TxDOT”) regarding the adequacy and design capacity of state

- maintained roadways used to access a MSW landfill). Id

. § 330.23 (a)

- (c), (h ). 3 While these listed agencies are entitled , by rule, to the requisite Commission
coordination , and to review and comment on all permit applications for MSW landfills, that is the extent of their role in the permitting process

– they have no
decision

- making authority. They have no authority to decide whether a landfill permit should be issued; where a landfill should or should not be sited; or how a
landfill should be c onstructed and operated. This holds true even if the coordinating agency has concerns regarding the permit application that fall within the agency’s jurisdiction or particular area of expertise (e.g., if the Texas Parks and Wildlife Department (“TPWD”) ha s concerns regarding impacts to threatened or

3 See also Tex. Health & Safet y Code § 361.067 (providing that the Commission shall mail a copy of an administratively complete permit application or a summary of its contents to certain governmental entities (i.e., mayor, county judge, and local and county health authorities) and that such entities “shall have a reasonable time . . . to present comments and recommendations on the permit application before the [C]omission acts on the application”).14

endangered species). The Commission is required to “consider information provided by” the agency, but the Commission is under no obligation to defer to the agency, and the agency has no authority to decide whe ther the application should be granted. Id

. § 330.23 (h).
A n entity , such as the District, that the Commission is not even required to consult in the MSW landfill permitting process cannot reasonably argue that it has the authority to preclude or void a MSW landfill permit, or to decide where a landfill can or cannot be sited, when the entities that the Commission is required to
consult in the permitting process have no such authority

. Just as TxDOT and
TPWD

– agencies with which the Commission is required to coordinate

– have particular expertise that may be relevant to the review of a MSW landfill application, groundwater conservation districts may have particular expertise regarding the groundwater aquifers within their jurisdiction , and that expertise may be of use to the Commission in deciding whether a landfill application should be granted. But groundwater conservation districts and other entities with whom the
Commissi on is not required to coordinate cannot reasonably claim any role in the permitting process that is greater than (or even on par with) that of the listed coordinating agencies. Given that the legally

- recognized coordinating agencies,
such as TxDOT and TPW D, have no authority to preclude or override the issuance15

of a MSW landfill permit , or limit where a landfill may be sited, groundwater conservation districts and other similarly situated entities clearly have no such authority. B. The District Cannot Meet The Criteria That The Legislature Has Established For Special Districts To Have A Role In Solid Waste Management The Legislature has authorized political subdivisions to regulate MSW disposal only under express, limited circumstanc es that do not apply to the District. Such limited authority is prescribed by § 361.165 of the Solid Waste Disposal Act. Tex. Health & Safety Code § 361.165. That section allows a political subdivision

to assume the authority to serve “as the coordinator of all solid waste management practices and activities for municipalities, counties, and other governmental entities in its jurisdiction that have solid wast e management regulatory powers or engage in solid waste management practices or activities.” Id

. § 361.165 (d)(1). The
District has no ability to assume such authority, nor has it attempted to do so . A politi cal subdivision can avail itself of the authority provided by § 361.165 only if it “(1) has jurisdiction in more than one county; and (2) has been granted the power by the [L]egislature to regulate solid waste handling or disposal pr actices or activities in its jurisdiction.” Id

. § 361.165 (a)(1)

- (2). 4 The District cannot satisfy

4 See also 30 Tex. A dmin. Code § 330.23(d) (noting that the Solid Waste Disposal Act “applies to political subdivisions of the state to which the legislature has given waste handling authority for two or more counties”).16

either of these two criteria. The District’s jurisdiction does not extend beyond Guadalupe County, and the Le gislature has not granted the District any power to regulate solid waste handling or disposal. Moreover, even if the District

– or any other groundwater conservation
district

– could meet the § 361.165 criteria for political subdivisions, that section allows qualifying political subdivisions to exercise only those solid waste management powers that the Solid Waste Disposal Act grants to counties. See id

. § 361.165 (b). And, in the exercise of those powers, the qualifying political subdivision “is subject to the same duties, limitations, and restrictions applicable to a county under” the Act. Id

. § 361.165 (c). Accordingly, the Commission “may supersede any authority granted to or exercised” by a political subdivision under § 361.165

. Id

. § 361.151(c). 5
C. The District Cannot Reasonably Claim The Authority To Control Land Use And Development That The Legislature Has Historically Denied To Counties Unable to avail itself of the limited, condition al authority provided by § 361.165 of the Solid Waste Disposal Act , the District attempts to circumvent the law entirely and regulate the siting and operation of landfills in Guadalupe County

5 Additionally, if the qualifying political subdivisio n sought to exercise a county’s authority to prohibit the disposal of MSW in certain areas, then the political subdivision would need to “specifically designate” the areas within its jurisdiction where the disposal of MSW will not be prohibited. Tex. Health & Safety Code § 363.112(a); see also Br. of Appellant Post Oak at 22

- 24.17

under the District’s general mandate to protect groundwater within its geographic
boundaries. If such general, limited authority sufficed to allow the District to assert jurisdiction over MSW landfills (it does not), then the District ostensibly
could use that same authority to control various other land uses under the banner of groundwater protection. Indeed, the District’s rule prohibiting the application of waste within certain areas of Guadalupe County is a targeted land use control. The Texas Legislature has a long history of considering, and failing to pass, bills to grant counties broad authority to control land use. Given that, as compared to counties, groundwater conservation districts are a more limited form of local government, it is reasonable to conclude that the Legislature never intended to implicitly confer upon groundwater conservation districts t he broad land use control authority that it has historically declined to confer upon counties after
much debate and consideration. For instance, House Bill 3447 in the 80th legislative session would have
authorized certain counties located in a “ priority groundwater management area ” to regulate land development in the unincorporated area of the county by various

means. Tex. H.B. 3447, 80th Leg., R.S. (2007). The bill failed to pass. Much broader authority to “protect the public health, safety, or welfare” would have been conferred upon counties by bills under consideration in multiple legislative18

sessions. Tex. H.B. 588, 76th Leg., R.S. (1999); Tex. H.B. 3781, 76th Leg., R.S. (1999); Tex. H.B. 2617, 77th Leg., R.S. (2001); Tex. H.B. 140, 78th Leg., R.S. (2003) ; Tex. H.B. 3735, 81st Leg., R.S. (2009) . But those bills, too, failed to pass. The legislative history is replete with other failed efforts to empower counties to regulate lan d use, development, and zoning. 6 The District’s attempt to assume such regulatory authority, without specific statutory authorization, is entirely at odds with this legislative history. The District cannot reasonably claim such broad authority under its general mandate when the Legislature has time and again considered and rejected specific legislation that would expressly confer such authority upon counties. Furthermore, when the Legislature has authorized counties to regulate land use, development, or z oning, it has restricted that authority to prescribed, limited
circumstances. 7 In the context of this case, the most relevant example of such
limited county authority is Tex. Health & Safety Code § 364.012, which authorizes
counties to prohibit solid waste disposal if it “is a threat to the public health, safety ,

6 See, e.g., Tex. H.B. 153, 84th Leg., R.S. (2015) ( relating to the adoption of noise regulations by certain counties); Tex. H.B. 924, 84th Leg., R.S. (2015) ( relating to the authority of a county to adopt a fire code); Tex. H.B. 662, 82nd Leg., R.S. (2011) (relating to authorizing certain counties to adopt buffer zone regulations and comprehensive land development plans); Tex. H.B. 3492, 82nd Leg., R.S. (2011) (relating to authorizing counties to adopt buffer zone regulations) ; Tex. H.B. 2167, 81st Leg., R.S. (2009) (relating to granting Hill Country counti es authority to regulate certain land use); Tex. H.B. 757, 79th Leg., R.S. (2005) (relating to the authority of a county to enact certain land development regulations)

. 7 See, e.g., Tex. Local Gov’t Code, Tit. 7, Subtit. B (county regulatory authority).19

and welfare,” but only if the county specifically designates areas in the county
where “ solid waste disposal is not prohibited.” Tex. Health & Safety Code § 364.012(a)

- (b); see also id. § 363.112(a) (similarly authorizing a municipality or county to prohibit solid waste disposal if the municipality or county “specifically designate[s] the area of the municipality or county, as appropriate, in which the disposal of . . . soli d waste will not be prohibited”). Here again, it is unreasonable to conclude that the Legislature saw fit to pass legislation expressly limiting county authority over something as locally significant as solid waste disposal, but yet intended to give groun dwater conservation districts broader authority over landfill siting and operation by mere implication through a general mandate. D. The District Cannot Dictate The Outcome Of The Permitting Process, But It Is Free To Participate In That Process Proc edurally, the role of groundwater conservation districts and other similarly situated entities in MSW landfill permitting proceedings before the Commission is indistinguishable from that of the general public. While direct
coordination with the Commission afforded certain agencies is not afforded to the
District , the District is not without a voice in the MSW permitting process. In this case, the District has provide d comments to TCEQ regarding Post Oak’s pending landfill permit application

– in writing, as well as orally at a public meeting. See20

30 Tex. Admin. Code §§ 55.152

- .156. Additionally, the District is participating in
the contested case hearing on the permit application. See id

. §§ 55.201(b)(4), .203. This role for groundwater conservation districts in the landfill permitting process was specifically

– and publicly

– addressed by TCEQ nearly a decade ago. The Commission revised the entirety of its MSW rules in March 2006. See 31 Tex. Reg. 2502 (Mar. 24, 2006). In the context of that rulemaking, the Commission received and responded to comments on the proposed rule revisions.
One suc h comment stated that : TCEQ should require double [landfill] liners within the area of a groundwater district if that district passes a resolution asking that the TCEQ impose this requirement, as this would place the decision on the need to protect ground water in the hands of those with expertise in a particular aquifer system. Id. at 2572. TCEQ refused to promulgate any such requirement. In its response to the comment, the Commission recognized the more limited role that groundwater
conservation distric ts play in the MSW landfill permitting process: “ An affected groundwater district or persons may comment or request a hearing regarding the adequacy of groundwater protection in a permit application if they deem that a double liner system is needed for gro undwater protection.” Id

. Accordingly, nearly a decade ago, the Commission rejected the notion that a groundwater conservation district could pass a resolution (or rule) that would dictate the outcome of the MSW landfill perm itting process, in whole or in part.21

II. The District’s Claim Is Not Ripe The District should not be allowed to circumvent TCEQ’s public participation process and pursue a premature challenge to Post Oak’s permit application in the courts. While Post Oak’s application is pending before TCEQ, the District should be required to e xhaust its administrative remedies through the established regulatory process, which, as discussed above, includes the opportunity for public comments and a contested case hearing on the application. The District
will have recourse in the courts if it exh austs its administrative remedies and if the Commission ultimately decides to issue Post Oak a MSW landfill permit. In the interim, while the administrative proceedings are ongoing, the District will not be harmed, as Post Oak will not have the requisite authorization to construct and operate the MSW landfill that the District seeks to prohibit.22 PRAYER For the reasons set forth above and in Appellants’ briefs , amici c uriae pray that the Court reverse the trial court’s order denying the Commission’s plea to the jurisdiction and render judgment d ismissing the District’s claim.
Respectfully submitted, By: /s/ Bryan J. Moore Bryan J. Moore State Bar No. 24044842 bmoore@bdlaw.com B EVERIDGE & D IAMOND , P.C. 98 San Jacinto Blvd. , Suite 1420 Austin, Texas 78701 Telephone: 512.891. 8000 Facsimile: 512.391. 8099 C OUNSEL FOR A MICUS C URIAE W ASTE M ANAGEMENT OF T EXAS , I NC

. By: /s/ Amanda M. Martin Amanda M. Martin State Bar No. 24074744 amartin@txbiz.org T EXAS A SS ’ N OF B USINESS 1209 Nueces Street Austin, Texas 78701 Telephone: 512.637.7708 Facsimile: 512.477.0836
C OUNSEL FOR A MICUS C URIAE T EXAS A SSOCIATION OF B USINESS23 CERTIFICATE OF SERVICE I certify that a copy of the Brief of Amici Curiae Waste Management of Texas, Inc. and Texas Association of Business was served on counsel of record via e FileTexas.gov and via email on the 4 th day of November 2015, addressed as follows: Ken Paxton ken.paxton@texasattorneygeneral.gov Charles E. Roy charles.roy@texasattorneygeneral.gov Scott A. Keller scott.keller@texasattorneygeneral.gov Bill Davis bill.davis@texasattorneygeneral.gov Nancy Elizabeth Olinger nancy.olinger@texasattorneygeneral.gov Cynthia Woelk cynthia.woelk@texasattorneygeneral.gov O FFICE OF THE A TTORNEY G ENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711

- 2548 Telephone: (512) 936

- 1896 Facsimile: (512) 370

- 9191 Attorneys for Texas Commission on Environmental Quality Marisa Perales marisa@lf

- lawfirm.com F REDERICK , P ERALES , A LLMON & R OCKWELL , PC 707 Rio Grande, Suite 200 Austin, Texas 77552

- 6894 Telephone: (512) 469

- 6000 Attorneys for Guadalupe County Groundwater Conservation District Christopher L. Dodson chris.dodson@bgllp.com Mark R. Wulfe mark.wulfe@bgllp.com B RACEWELL & G IULIANI L.L.P. 711 Louisiana Street, Suite 2300 Houston, Texas 77002

- 2770 Telephone: (713) 223

- 2300 Facsimile: (713) 221

- 1212 Attorneys for Post Oak Clean Green, Inc.24

John A. Riley jriley@jgdpc.com J ACKSON G ILMOUR & D OBBS , P.C. 1115 San Jacinto Blvd., Suite 275 Austin, Texas 78701 Telephone: (512) 574

- 8861 Facsimile: (512) 574

- 8861 Attorneys for Post Oak Clean Green, Inc.

/s/ Bryan J. Moore Bryan J. Moore

CERTIFICATE OF COMPLIANCE This brief complies with the length limitations of Tex. R. App

. P. 9.4(i)(3) because this brief consists of 3,771 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(1). /s/ Bryan J. Moore Bryan J. Moore

627682v1 Austin 015142