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 

BEVERIDGE & DIAMOND, 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 

TEXAS ASS’N OF BUSINESS

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

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 11/4/2015 1:21:15 PM KEITH E. HOTTLE Clerk
i

IDENTITY OF PARTIES AND COUNSEL

Amici curiae adopt Appellants’ 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

BEVERIDGE & DIAMOND, 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

TEXAS ASS’N OF BUSINESS

1209 Nueces Street

Austin, Texas 78701

Telephone: 512.637.7708

Facsimile: 512.477.0836
ii

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..................................................................................................................22
iv

TABLE OF AUTHORITIES

 PAGE

30 TEX. ADMIN. CODE § 330.23 .................................................................. 12, 13, 14

30 TEX. ADMIN. CODE § 330.23(d) ..........................................................................15

30 TEX. ADMIN. CODE § 330.71(b). ...........................................................................6

30 TEX. ADMIN. CODE §§ 55.152-.156. ............................................................ 19, 20

TEX. HEALTH & SAFETY CODE § 361.011(a)............................................................12

TEX. HEALTH & SAFETY CODE § 361.067 ................................................................13

TEX. HEALTH & SAFETY CODE § 361.165......................................................... 15, 16

TEX. HEALTH & SAFETY CODE § 363.112(a)............................................................16

TEX. WATER CODE § 26.127(a). ..............................................................................12
5

STATEMENT OF THE CASE

Amici curiae adopt Appellants’ statements of the case.

STATEMENT REGARDING ORAL ARGUMENT 

Amici curiae support Appellants’ requests for oral argument, but, per 

Tex. R. App. P. 39.5, do not seek to share time with Appellants at oral 

argument or to otherwise orally argue the case to the Court.

ISSUES PRESENTED

Amici curiae adopt Appellants’ statements of the issues presented, but 

argue herein only a subset of those issues, as set forth below.

STATEMENT OF FACTS

Amici curiae adopt Appellants’ 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 capital 
6

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 an 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 will 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 

regulatory 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 permitting 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 Waste 
7

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 uniform, 

statewide standards for the permitting, siting, construction, and operation of 

MSW facilities. Absent such uniformity, there is regulatory uncertainty, and 

such uncertainty 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 solid waste management. 

Allowing such entities to block TCEQ permits for MSW facilities, or to limit or 

prohibit the siting of TCEQ-permitted MSW facilities, could potentially lead to 
8

a regulatory free-for-all, with local interests and bias dictating which MSW 

facilities may be permitted, 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 issues that impact business to ensure that employers’ 

opinions are being heard. In addition, TAB is the 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 special 
9

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 other special districts, or any 

other governmental entities without 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 confusion and conflict between jurisdictions. These entities must recover 

these cost increases through taxes, further magnifying the impact on Texas 

businesses and consumers. In fact, faced with the regulatory confusion that this 
10

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 ARGUMENT 

The 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 action 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 Oak 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. The 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 participation 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 District 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.

The 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 § 26.127(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 constructed 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”) has concerns regarding impacts to threatened or 

 

3

See also Tex. Health & Safety 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 whether the application should 

be granted. Id. § 330.23(h). 

An 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 

Commission 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 TPWD, have no authority to preclude or override the issuance 
15

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 circumstances 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 waste 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 

political 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 practices or 

activities in its jurisdiction.” Id. § 361.165(a)(1)-(2).4 The District cannot satisfy 

 

4

See also 30 Tex. Admin. 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 Legislature 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, conditional 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 subdivision 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 the 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 legislative 
18

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 land 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 zoning, 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 counties 

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 . . . solid 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 groundwater 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

Procedurally, 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 provided comments to TCEQ regarding Post Oak’s pending 

landfill permit application – in writing, as well as orally at a public meeting. See 
20

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 such 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 groundwater 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 districts 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 groundwater 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 permitting 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 exhaust 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 exhausts 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 curiae pray

that the Court reverse the trial court’s order denying the Commission’s plea to the 

jurisdiction and render judgment dismissing the District’s claim. 

Respectfully submitted,

By: /s/ Bryan J. Moore

Bryan J. Moore

State Bar No. 24044842 

bmoore@bdlaw.com

BEVERIDGE & DIAMOND, P.C.

98 San Jacinto Blvd., Suite 1420 

Austin, Texas 78701 

Telephone: 512.891.8000

Facsimile: 512.391.8099

COUNSEL FOR AMICUS CURIAE

WASTE MANAGEMENT OF TEXAS, INC.

By: /s/ Amanda M. Martin

Amanda M. Martin

State Bar No. 24074744

amartin@txbiz.org

TEXAS ASS’N OF BUSINESS

1209 Nueces Street

Austin, Texas 78701

Telephone: 512.637.7708

Facsimile: 512.477.0836

COUNSEL FOR AMICUS CURIAE

TEXAS ASSOCIATION OF BUSINESS
23

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 

eFileTexas.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

OFFICE OF THE ATTORNEY GENERAL

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

FREDERICK, PERALES, ALLMON

& ROCKWELL, 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

BRACEWELL & GIULIANI 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

JACKSON GILMOUR & DOBBS, 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