NUMBER 13-20-00479-CV

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

THE CITY OF PORT ISABEL, 

TEXAS, JJ ZAMORA, AND

MARTIN CANTU, Appellants, 

 v. 

BROWNSVILLE NAVIGATION

DISTRICT OF CAMERON

COUNTY, TEXAS, Appellee.

 

On appeal from the 445th District Court 

of Cameron County, Texas.

 

MEMORANDUM OPINION 

Before Chief Justice Contreras and Justices Hinojosa and Silva

Memorandum Opinion by Justice Silva
2

Appellants the City of Port Isabel, Texas (Port Isabel), JJ Zamora, and Martin 

Cantu1 appeal the trial court’s order sustaining appellee Brownsville Navigation District 

of Cameron County, Texas’s (BND’s) plea to the jurisdiction. By what we construe as

three issues, appellants argue that: (1) the trial court erred by granting BND’s plea to the 

jurisdiction because BND’s immunity has been waived; (2) the trial court erred by 

concluding that appellants’ suit was a collateral attack on the Federal Energy Regulatory 

Commission’s (FERC) approval of BND’s plans over which the trial court lacked 

jurisdiction; and (3) even if dismissal was appropriate, dismissal with prejudice was not. 

We affirm.

I. BACKGROUND

BND entered into lease agreements with several businesses that would construct 

and operate liquid natural gas (LNG) facilities on its property.

2 The parcels of land on 

which the facilities would be built are approximately one mile from Port Isabel. According 

to exhibits filed with the trial court by appellants, the plans to site and build the facilities

began as early as March 2016 when one of the companies submitted its formal application 

to FERC to site and build the facility. After several years of environmental studies by 

FERC and the Texas Commission on Environmental Quality (TCEQ), FERC issued the 

final environmental impact statement in March 2019. On November 22, 2019, FERC 

approved the site plans for the LNG facilities, making the leases enforceable. 

1 Zamora and Cantu are both residents of Port Isabel. Zamora is the mayor of Port Isabel while

Cantu is a city councilmember. 

2 The exact dates that the parties entered the leases are unknown; however, Port Isabel asserts 

that the leases were contingent on FERC’s approval of the LNG plans.
3

On February 5, 2020, appellants filed their second amended petition and 

application for preliminary and permanent injunctions, asking the trial court to prohibit 

“BND from allowing any construction and operation of [LNG] facilities upon its premises.”3

BND received service and filed a notice of removal to the United States District Court for 

the Southern District of Texas on February 7, 2020. The federal court remanded the suit 

back to the state court on May 4, 2020, concluding that it did not have jurisdiction over

appellants claims because the claims were based on state law. BND subsequently filed 

its plea to the jurisdiction and a later accompanying brief in support of its plea. Appellants

filed their third amended petition and application for preliminary and permanent 

injunctions on May 19, 2020.

Appellants’ third amended petition alleged that the LNG facilities “shall have a 

detrimental and negative impact upon the environment, including air, soil[,] and water

quality for the inhabitants of the City of Port Isabel and the wildlife located in and around 

the Laguna Atascosa Wild[life] Refuge.” Appellants further alleged that 

BND knew that the construction and subsequent operation of the [LNG]

facilities by the various [LNG] businesses to whom [BND] leased its 

premises, would cause pollution and detrimentally impact the air, soil, water, 

inhabitants[,] and wildlife in and around the city limits of Port Isabel, Texas. 

[BND] knew or knows that the operation of the [LNG] facilities upon its 

premises would cause injury and damages to the air, soil, water, 

inhabitants[,] and wildlife in and around the city limits of Port Isabel, Texas. 

Despite this knowledge about the severe detrimental impact that the 

operation of the [LNG] facilities upon its premises would cause, [BND]

continued to, and still continues, to allow its premises to be used in a 

manner which shall cause irreparable harm to the air, soil, water, 

inhabitants[,] and wildlife in and around the city limits of Port Isabel, Texas. 

3 Appellants filed their original petition and application for preliminary and permanent injunctions

on January 27, 2020, and first amended petition and application for preliminary and permanent injunctions

on January 30, 2020; however, appellants did not serve BND with either version. 
4

Alternatively, [BND] has intentionally acted to cause harm to the air, soil, 

water, inhabitants[,] and wildlife in and around the city limits of Port Isabel, 

Texas by proce[e]ding with its lease to the [LNG] businesses for the purpose 

of [LNG] operations upon [BND]’s premises. [BND] has intentionally acted 

to cause harm to the air, soil, water, inhabitants[,] and wildlife in and around 

the city limits of Port Isabel, Texas because it has actual knowledge of the 

pollution and environmental devastation that shall occur when the [LNG]

businesses conduct their respective liquified natural gas operations upon 

BND’s premises.

According to appellants, 

[o]nce Texans and others discover that the chemicals from the [LNG]

facilities like benzene, formaldehyde[,] and mercury are in the air, water, 

fish[,] and soil, they will avoid Port Isabel and seek out other places to fish, 

visit, vacation, shop, eat[,] and work. The [LNG] facilities’ operations will

devastate the Port Isabel economy.

BND[,] through its leases with the liquified natural gas businesses[,]

has created a condition that is subversive of public health, and that 

constitutes an obstruction of public rights.

Appellants attached and incorporated by reference testimony from their expert, 

David Weeks, a licensed engineer who is board certified in hazardous waste 

management and industrial hygiene. According to Weeks, 

[a]ir contaminants emitted from the [f]acility will be deposited into the 

Laguna Atascosa National Wildlife Refuge [(Refuge)] and other areas within 

the corporate and [extra-jurisdictional] boundaries of [Port 

Isabel]. . . . Heavy metals and semi-volatile organic compounds . . . may be 

present as or attach to particulate matter . . . . Once deposited into the 

environment[,] the air contaminants can be taken up into the food chain 

where they can cause toxic responses in higher trophic levels of the food 

web (i.e.[,] mammals and birds), or have direct adverse effects on the 

ecosystem itself (invertebrates).

For example, the facility may emit cadmium, mercury, and polycyclic 

aromatic hydrocarbons (PAHs). . . . Some fraction of these air contaminants 

will likely be deposited in the environment in a pattern similar to that shown 
5

in Exhibit 34[

4] because they may be present as or attached to fine particles 

from the combustion process.

. . . .

The analysis showed that the [a]pplicant’s emissions could result in 

nitrogen and sulfur deposition to the environment that exceed the 

[Deposition Analysis Threshold] based air concentrations for nitrogen and 

sulfur, and therefore the applicant’s emissions could result in the deposition 

of nitrogen and sulfur that could cause adverse impacts to the environment 

of the [Refuge] and the areas of [Port Isabel] . . . .

. . . .

[I]t is not known if the permit conditions are protective of human 

health for cancer risk.

Weeks expressed repeated concerns that the environmental and health studies 

performed as part of the permitting process did not consider all the necessary information

to make an adequate conclusion on safety to both human and environmental entities near 

the plants.

Appellants asserted multiple causes of action including gross negligence and 

nuisance.

5 Appellants argued that BND’s actions constituted gross negligence because 

“allowing [LNG] operations upon its premises[,] when viewed objectively from BND’s 

standpoint, involves an extreme degree of risk to the air, water, soil, inhabita[n]ts[,] and 

wildlife in and around the city limits of Port Isabel.” Appellants went on to allege that “BND

had actual, subjective awareness of the risks involved, but nevertheless proceeded in 

conscious indifference to the rights, safety, or welfare of [appellants] and others.” 

4 Exhibit 34 does not appear in the record.

5 Appellants listed three separate nuisance actions: (1) public and private nuisance; (2) “intentional 

nuisance” with strict liability for ultrahazardous activity; and (3) nuisance that amounts to a taking of 

appellants’ property.
6

According to appellants, BND’s conduct of leasing the land to the LNG businesses “is the 

proximate cause of [appellants’] injuries and damages.”

Appellants alleged that strict liability applies to BND’s conduct because “the 

construction and operation of the [LNG] facilities upon BND’s premises [are] an 

abnormally dangerous activit[ies]” in that the facilities will emit “noxious and toxic 

chemicals” and, in the event of a fire, LNG burns at approximately 3,500 degrees 

Fahrenheit and is extremely difficult, if not impossible, to extinguish. 

Finally, appellants argued that “the construction and operation of the [LNG] 

facilities upon BND’s premises . . . constitutes a forthcoming and imminent taking of 

[appellants’] real property in violation of . . . the Texas Constitution.” According to 

appellants, “BND intentionally acted and entered into the lease of its premises to the 

various [LNG] businesses when BND knew or should have known that the operation of 

the [LNG] facilities will result in the contamination of [appellants’] air, water, and soil with 

emissions and chemicals harmful to [appellants].” In the alternative, appellants alleged 

that BND’s act of leasing its property to the LNG companies constituted a proprietary act 

for which BND does not enjoy governmental immunity.

BND filed a plea to the jurisdiction and included five exhibits. The first three exhibits 

consisted of FERC’s order granting authorization to site, construct, and operate LNG 

facilities for each proposed lease. BND also included appellants’ petition for review of 

FERC’s authorizations before the United States Court of Appeals for the District of 

Columbia Circuit. Finally, BND included an affidavit from Eduardo Campirano, port 

director and chief executive officer at the Port of Brownsville.
7

In its plea, BND argued that, pursuant to the Natural Gas Act (NGA), FERC has 

exclusive authority to approve or deny an application for the siting, construction, and

operation of an LNG facility. See 15 U.S.C. § 717b(e)(1). BND pointed out that several 

interested parties, including appellants, were provided an opportunity to oppose the 

approval of the forthcoming facilities by providing evidence and argument to FERC as to 

why the facilities should not be constructed. BND argued that appellants’ state court suit 

constituted an impermissible collateral attack on FERC’s authority, particularly because 

none of the entities had begun construction of the facilities and thus appellants have 

suffered no injuries.

BND also argued that, as a political subdivision of the State of Texas, it enjoyed 

governmental immunity, which had not been waived. BND further asserted that the 

decision to lease the property to the LNG businesses constituted a discretionary act for 

which there is no waiver of governmental immunity, additionally arguing that there is no 

waiver under the Texas Tort Claims Act (TTCA). In response to appellants’ assertion that 

leasing the land to the LNG businesses was a proprietary function, BND argued that a 

navigation district is “entirely governmental in function,” not proprietary. 

According to BND, appellants’ suit affirmatively negated jurisdiction “because the 

pleadings admit that (i) [BND] is merely the landlord, (ii) the LNG [facilities] have not been 

constructed, much less become operational, and (iii) no damages to [appellants] have 

actually resulted from any conduct of [BND].”

Appellants responded to BND’s plea, attaching thirteen exhibits to their response. 

Appellants argued that a license or permit from a governmental entity does not provide a 
8

shield from liability for injuries that arise from activities under that license or permit. 

Appellants claimed they were “not attacking the propriety of the FERC and TCEQ’s orders

at all.” Rather, they were “asserting common law claims against [BND] to enjoin the 

pollution, injuries[,] and damages that will befall [appellants] arising and emanating from 

BND’s premises given the lease agreements.” In response to BND’s point that appellants 

have not yet suffered damages, appellants argued that the relief sought is appropriate 

regarding the timing because the injuries they will suffer are imminent. Appellants urged 

the trial court to deny BND’s plea because, taking all assertions in their petition as true, 

they sufficiently set out the necessary elements for each of their claims as well as 

established a waiver of BND’s governmental immunity.

After a non-evidentiary hearing, the trial court granted BND’s plea, concluding that

“FERC has exclusive jurisdiction and authority to approve or not approve LNG siting, 

construction[,] and operations facilities to the exclusion of state and local authorities, 

including state courts.” The trial court determined that granting appellants’ requests for 

preliminary and permanent injunctions “would effectively set aside the FERC [o]rders.” 

The trial court added that appellants’ “pleadings and exhibits, as well as the 

representation of facts made at the hearing, clearly and undeniably show that no harm or 

injury has yet been done to any of the [appellants], to any person or animal or plant, or to 

the land or the environment.” Finally, the trial court concluded that appellants “failed to 

meet their burden that BND’s immunity from suit has been waived.” The trial court 

dismissed appellants’ suit with prejudice. This appeal followed.6

6 After this case was submitted for decision, this Court abated the case and asked the parties to 
9

II. STANDARDS OF REVIEW

A. Exclusive Federal Jurisdiction

When Congress establishes exclusive federal jurisdiction, “only the specified 

federal instrumentalities have jurisdiction of the matter, irrespective of the law to be 

applied.” Mills v. Warner Lambert Co., 157 S.W.3d 424, 427 (Tex. 2005) (per curiam) 

(quoting Chappell v. SCA Servs., Inc., 540 F. Supp. 1087, 1095 (C.D. Ill. 1982)

(contrasting exclusive jurisdiction with preemption, under which “federal substantive law 

supplants state law but absent other provisions both state and federal courts have 

concurrent jurisdiction of actions arising under that law.”). “[W]hether an agency has 

exclusive jurisdiction is a question of law we review de novo.” Subaru of Am., Inc. v. David 

McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex. 2002). Similarly, whether federal courts

have exclusive jurisdiction is a question of law which we review de novo. Stiles v. Mem’l 

Hermann Healthcare Sys., 213 S.W.3d 521, 525 (Tex. App.—Houston [1st. Dist.] 2007, 

pet. denied).

provide an update regarding the federal appeal and to provide us with a copy of the order and opinion. The 

parties complied and we further requested that the parties brief this Court on whether the circuit court’s 

ruling implicated mootness, which would deprive this court of subject matter jurisdiction. See Ward v. Lamar 

Univ., 484 S.W.3d 440, 450–51 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“[A]ppellate courts have a 

duty to assess their own jurisdiction sua sponte.”); see also City of Dallas v. Woodfield, 305 S.W.3d 412, 

416 (Tex. App.—Dallas 2010, no pet.) (“An appellate court is prohibited from deciding a moot controversy.”). 

The federal court of appeals granted appellants’ petitions for review as to whether FERC’s 

“analyses of the projects’ impacts on climate change and environmental justice communities were deficient”

under the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA). Vecinos 

para el Bienestar de la Comunidad Costera v. Fed. Energy Reg. Comm’n, 6 F.4th 1321, 1331 (D.C. Cir. 

2021). However, the court declined to vacate FERC’s orders, reasoning that FERC “is likely to remedy any 

deficiencies in its orders on remand” and that “vacating the orders would needlessly disrupt completion of 

the projects.” Id. at 1332. In their supplemental briefing, the parties agree that, because the D.C. Circuit 

Court of Appeals did not vacate the permits to site, construct, and operate the LNG facilities, this appeal is 

not moot. We agree.
10

B. Ripeness

“Ripeness” is a doctrine that considers “whether, at the time a lawsuit is filed, the 

facts have developed sufficiently such ‘that an injury has occurred or is likely to occur, 

rather than being contingent or remote.’” Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. 

Ass’n, 270 S.W.3d 777, 781 (Tex. App.—Austin 2008, no pet.) (quoting Patterson v.

Planned Parenthood of Hous. & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998)).

“Ripeness is an element of subject matter jurisdiction.” Mayhew v. Town of Sunnyvale, 

964 S.W.2d 922, 928 (Tex. 1998). “[R]ipeness derives from the constitutional prohibition 

against advisory opinions, which in turn stems from separation-of-powers princip[l]es.” 

Tex. Bd. of Chiropractic Exam’rs, 270 S.W.3d at 781. In other words, courts lack subject 

matter jurisdiction over claims that are not yet ripe. Mayhew, 964 S.W.2d at 928. “A case 

is not ripe when its resolution depends upon contingent or hypothetical facts, or upon 

events that have not yet come to pass.” Tex. Bd. of Chiropractic Exam’rs, 270 S.W.3d at 

781. Because ripeness is a component of subject matter jurisdiction, whether a claim is 

ripe “is a legal question subject to de novo review that a court can raise sua sponte.” 

Mayhew, 964 S.W.2d at 928.

III. APPLICABLE LAW

The NGA “creates a consolidated regulatory process for approving LNG facilities 

that maintains the role of federal agencies and, in circumscribed areas, state agencies.” 

Weaver’s Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 589 F.3d 458, 462 (1st 

Circ. 2009); see 15 U.S.C. §§ 717–717z. The NGA provides FERC with “exclusive 

authority to approve or deny an application for the siting, construction, expansion, or 
11

operation of an LNG terminal.” 15 U.S.C. § 717b(e)(1). Thereafter, an interested party 

may seek review of the permit through administrative procedures within FERC. Id.

§ 717r(a). Once FERC has concluded the review hearing, the aggrieved party may seek 

review before the D.C. Circuit Court of Appeals or the court of appeals for the circuit in 

which the LNG facility is located, which have exclusive jurisdiction to affirm, modify, or set 

aside FERC’s order in whole or part. Id. § 717r(b). 

FERC and the respective circuit courts’ exclusive jurisdiction does not extend to 

state common law claims that arise out of the operation of LNG facilities. Pan Am.

Petroleum Corp. v. Superior Ct. of Del. In & For New Castle Cnty., 366 U.S. 656, 664–66 

(1961) (holding the NGA does not eliminate a state court’s jurisdiction for common-law 

contract claims); see also Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U.S. 

374, 393 (2016) (holding Securities Exchange Act did not eliminate a state court’s 

jurisdiction where “[plaintiff’s] claims sought relief under state law[,] and none necessarily 

raised a federal issue”). “Exclusive means exclusive, and the [NGA] nowhere permits an 

aggrieved party otherwise to pursue collateral review of a FERC certificate in state court

or federal district court.” Am. Energy Corp. v. Rockies Express Pipeline LLC, 622 F.3d 

602, 605 (6th Circ. 2010).

IV. ANALYSIS

A. Exclusive Jurisdiction

Among their issues presented, appellants argue that the trial court erred by 

granting BND’s plea to the jurisdiction because the NGA does not bar state law claims
12

against BND. Because we find this issue to be dispositive, we address it first. See TEX.

R. APP. P. 47.4.

Appellants cite FPL Farming Ltd. v. Environmental Processing Systems, L.C., 

arguing that the TCEQ and FERC permits do not shield BND from tort liability for injuries 

caused while operating under those licenses.7 351 S.W.3d 306, 310 (Tex. 2011) (“As a 

general rule, a permit granted by an agency does not act to immunize the permit holder 

from civil tort liability from private parties for actions arising out of the use of the permit.”).

In FPL Farming, the court concluded that FPL Farming could maintain a suit for trespass 

against Environmental Processing Systems (EPS), despite EPS’s permit allowing it to 

construct and operate two deep wastewater injection wells next to FPL Farming’s 

property. Id. at 308. FPL Farming alleged that EPS’s operations caused wastewater to 

migrate onto FPL Farming’s property, contaminating its water supply. Id. at 307. The court 

explained that a permit is a “negative pronouncement” that removes government-imposed 

barriers to a particular activity rather than granting affirmative rights. Id. at 310–11. Thus, 

EPS’s permit merely allowed the activity but did not shield it from liability for damages 

caused by the activity. Id. at 310, 314.

Appellants additionally argue that “[t]he only way the trial court could be correct, 

that the federal regulatory scheme or FERC’s orders bar [appellants’] claims via exclusive 

jurisdiction, is if there existed federal preemption of [appellants’] claims in this action.”

7 We note that FERC’s orders granting authorization to site, construct, and operate LNG facilities

were not granted to BND, but rather to the various companies that would be constructing and operating the 

LNG facilities. Further, there is no allegation or evidence that BND intended to build or operate an LNG 

facility itself.
13

Appellants cite Pan American Petroleum Corp. as support for their assertion that FERC 

and the federal appellate courts do not have exclusive jurisdiction over state law claims. 

See 366 U.S. at 664–66. In Pan American, the United States Supreme Court held that 

FERC and the federal courts’ exclusive jurisdiction under the NGA did not deprive state 

courts of subject matter jurisdiction over a natural gas pipeline company’s state-law 

contract claim against Pan American. Id. at 662–63.

We find both Pan American and FPL Farming to be inapposite. In the present case, 

appellants do not seek to recover damages, but to enjoin BND temporarily and 

permanently from leasing its property to the LNG businesses and to prevent the “siting, 

construction, expansion, or operation of an LNG terminal,” a matter exclusively reserved 

for FERC and federal circuit courts. See 15 U.S.C. § 717b(e)(1).

In Pan American, the Court held that whether exclusive jurisdiction exists 

“depend[s] on the particular claims a suitor makes in a state court—on how he casts his 

action.” 366 U.S. at 662. Although the NGA does not strip state courts of subject matter 

jurisdiction over common law state claims, a plaintiff may not simply assert state law 

claims to act as a collateral attack on FERC’s statutory authority. See Williams Nat. Gas 

Co. v. City of Oklahoma City, 890 F.2d 255, 262 (10th Cir. 1989) (“[T]he prohibition on 

collateral attacks applies whether the collateral action is brought in state court.”). Here, 

although appellants have alleged various causes of action based in common law tort, they 

exclusively seek to undo the authority granted by FERC. See id. In other words, 

appellants attempt to use artful pleading to utilize state court jurisdiction to usurp FERC’s 

exclusive authority. See Williams Nat. Gas, 890 F.2d at 262.
14

Appellants’ claims amount to an impermissible collateral attack on FERC’s 

exclusive authority to approve or deny an application to site, construct, expand, or operate 

an LNG facility. See id. Appellants’ claims may be artfully pleaded as state law claims, 

but they seek to defeat the very authority provided to FERC and the respective courts by 

requesting temporary and permanent injunctions prohibiting the LNG facilities from being 

sited, built, and operated by the lessees. See id.; Pan Am. Petroleum Corp., 366 U.S. at 

662. Further, appellants’ claims that the operation of LNG facilities will lead to widespread 

damage to Port Isabel, the surrounding area, and its inhabitants, were presented to and 

considered by FERC during the permit application process and reviewed by the D.C. 

Circuit Court of Appeals. See Williams Nat. Gas, 890 F.2d at 264. The collateral nature 

of appellants’ attack is further evidenced by their pleadings, which suggest that 

incomplete or insufficient environmental studies by FERC and TCEQ, led to erroneous 

approval. See id.

Lastly, appellants assert that the Southern District of Texas’s holding that “[t]he 

NGA does not preempt state common law claims” further demonstrates appellants’ 

position that the trial court erred by concluding that it lacked jurisdiction. However, this 

case does not implicate preemption; rather, it implicates exclusive jurisdiction. See Mills, 

157 S.W.3d at 427. Further, “subject matter jurisdiction cannot be conferred by a prior 

decision in the case.” Entergy Corp. v. Jenkins, 469 S.W.3d 330, 337 (Tex. App.—

Houston [1st Dist.] 2015, pet. denied) (concluding that the “law of the case doctrine” 

cannot confer subject matter jurisdiction and does not limit a court’s obligation to ascertain 

its own subject matter jurisdiction). 
15

A plaintiff cannot use artful pleading to circumvent exclusive jurisdiction and 

engage in a collateral attack on a federal agency’s expressed authority. See Williams Nat. 

Gas, 890 F.2d at 262; Yamada v. Friend, 335 S.W.3d 192, 196–97 (Tex. 2010) 

(reaffirming principal that artful pleading does not alter the underlying nature of a claim 

being made as it relates to healthcare liability claims). Accordingly, we conclude the trial 

court did not err in granting BND’s plea to the jurisdiction.

B. Dismissal with Prejudice

Appellants argue that the trial court erred by dismissing their claims with prejudice 

because “[Port Isabel] would be forever foreclosed [of] the opportunity to bring suit against 

BND for its later wrongful acts and/or omissions.” Appellants further assert that they 

should be provided an opportunity to amend their pleadings to include sufficient facts to 

cure any jurisdictional defects. However, the right to amend pleadings only exists when 

the jurisdictional defect can be cured through pleadings. See Harris County v. Sykes, 136 

S.W.3d 635, 639 (Tex. 2004) (“In general, a dismissal with prejudice is improper when 

the plaintiff is capable of remedying the jurisdictional defect.”); Tex. Dep’t of Transp. v. 

Ramirez, 74 S.W.3d 864, 867–68 (Tex. 2002) (concluding plaintiff did not have right to 

amend pleadings where “[t]he pleaded facts and the evidence . . . demonstrate that it is 

impossible for [the plaintiff] to amend the pleadings to invoke jurisdiction”). Here, the 

jurisdictional defect—exclusive federal jurisdiction—cannot be cured through amended 

pleadings. See Ramirez, 864 S.W.3d at 867–68. As such, the trial court did not err when

it dismissed appellants’ suit with prejudice.8

8 While we are dismissing appellants’ claims pertaining to the yet built LNG facilities with prejudice, 
16

C. Summary

The trial court did not err when it concluded that appellants’ suit amounted to an 

impermissible collateral attack on FERC’s exclusive jurisdiction and dismissed their 

claims with prejudice. Because we uphold the trial court’s order under exclusive 

jurisdiction, we do not need to consider appellants’ remaining issues that BND waived 

immunity or that the trial court failed to take as true all evidence favorable to appellants 

and indulge every reasonable inference in their favor. See TEX. R. APP. P. 47.4.

V. CONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA

Justice

Delivered and filed on the

29th day of November, 2022.

our disposition should not be construed as extending to possible future claims that could arise following the 

facilities’ construction.