No. 04-15-00433-CV



# In the Court of Appeals for the Fourth Judicial District San Antonio, Texas

T EXAS C OMMISSION ON E NVIRONMENTAL Q UALITY ;

P OST O AK C LEAN G REEN , I NC ., Appellants ,

v. G UADALUPE C OUNTY G ROUNDWATER C ONSERVATION D ISTRICT , Appellee

. On Appeal from the 2nd 25th Judicial District Court, Guadalupe County
OPENING BRIEF OF APPELLANT TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

O FFICE OF THE A TTORNEY G ENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1896 Fax: (512) 370-9191 SCOTT A. KELLER Solicitor General

BILL DAVIS Assistant Solicitor General State Bar No. 24028280 Bill.Davis@texasattorneygeneral.gov

NANCY ELIZABETH OLINGER CYNTHIA WOELK Assistant Attorneys General



### O RAL 

### A RGUMENT 

### R EQUESTED ACCEPTED 04-15-00433-cv FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 9/17/2015 10:20:01 AM KEITH HOTTLE CLERKi 

### I DENTITY OF 

### P ARTIES AND 

### C OUNSEL Appellant Texas Commission on Environmental Quality (“the Com mission” or “TCEQ”) Counsel for the Commission Lead Appellate Counsel Bill Davis Assistant Solicitor General O FFICE OF THE A TTORNEY G ENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Bill.Davis@texasattorneygeneral.gov

Additional Trial Counsel David Preister Assistant Attorney General O FFICE OF THE A TTORNEY G ENERAL P.O. Box 12548 (MC 066) Austin, Texas 78711-2548 Additional Appellate and Trial Counsel Nancy Elizabeth Olinger Cynthia Woelk Mark Walters (trial court only)* Assistant Attorneys General O FFICE OF THE A TTORNEY G ENERAL P.O. Box 12548 (MC 066) Austin, Texas 78711-2548

Appellant Post Oak Clean Green, Inc. (“Post Oak”) Counsel for Post Oak Lead Appellate Counsel Additional Appellate and Trial Counsel Christopher Dodson John A. Riley B RACEWELL & G IULIANI J ACKSON , G ILMOUR & D OBBS , PC 711 Louisiana St., Suite 2300 1115 San Jacinto Blvd., Suite 275 Houston, Texas 77002 Austin, Texas 78701 chris.dodson@bgllp.com jriley@jgdpc.com

* Mark Walters is no longer with the Office of the Attorney General.ii

Counsel for Post Oak (continued) Additional Trial Counsel Robert D. Ayers Kelley L. Clark B RACEWELL & G IULIANI 711 Louisiana St., Suite 2300 Houston, Texas 77002 Peter J. Stanton L AW O FFICES OF P ETER J. S TANTON 111 Soledad, Suite 1350 Riverview Towers San Antonio, Texas 782025 Appellee Guadalupe County Groundwater Conservation District (“the District”) Counsel for the District Marisa Perales F REDERICK , P ERALES , A LLMON & R OCKWELL , P.C. 707 Rio Grande, Suite 200 Austin, Texas 78701 marisa@LF-Lawfirm.comiii 

### T ABLE OF 

### C ONTENTS Identity of Parties and Counsel ............................................................................... i Index of Authorities .............................................................................................. iii Record References ................................................................................................. xi Statement of the Case ............................................................................................ xi Statement Regarding Oral Argument .................................................................... xii Issues Presented ................................................................................................... xii Introduction ............................................................................................................ 1 Statement of Facts ................................................................................................. 2 I. The Parties ................................................................................................. 2 II. Statutory And Regulatory Background ....................................................... 3 A. The Commission’s Authority ................................................................ 3 B. The District’s Authority ....................................................................... 7 III. Post Oak’s Application For A Landfill Permit .......................................... 14 IV. Trial Court Proceedings ........................................................................... 15 Summary of the Argument .................................................................................... 19 Standard and Scope of Review .............................................................................. 21 Argument............................................................................................................. 22 I. The District’s Substantive Claim Is Not Ripe, And It Is Impermissibly Redundant Of A Suit For Judicial Review................................................. 22 II. Because It Did Not Allege A Redressable Injury, The District Lacks Standing To Sue. ...................................................................................... 31 III. The District’s Substantive Claim Is Barred Under The Doctrine Of Exclusive (Or, Alternatively, Primary) Jurisdiction. ................................. 36 Prayer ................................................................................................................... 45 Certificate of Service............................................................................................. 46 Certificate of Compliance ..................................................................................... 46 Appendix: Order on the Commission’s Plea to the Jurisdictioniv 

### I NDEX OF 

### A UTHORITIES Cases Apollo Enters., Inc. v. ScripNet, Inc. , 301 S.W.3d 848 (Tex. App.—Austin 2009, no pet.) ....................................

................................................... .......... 37 Bacon v. Tex. Historical Comm’n , 411 S.W.3d 161 (Tex. App.—Austin 2013, no pet.) ..........................................

................................................... .............. 31 Bexar–Medina–Atascosa Counties Water Control & Impr ovement Dist. No. 1 v. Medina Lake Prot. Ass’n , 640 S.W.2d 778 (Tex. App.—San Antonio 1982, writ ref’d n.r.e.) ..........................

................................................... ........ 23 Blue Cross Blue Shield of Tex. v. Duenez , 201 S.W.3d 674 (Tex. 2006) ................... 38 Bonham State Bank v. Beadle , 907 S.W.2d 465 (Tex. 1995) ...................... ........ 23, 32 Brown v. Todd , 53 S.W.3d 297 (Tex. 2001) ....................... ............................... 31, 32 Cash Am. Int’l, Inc. v. Bennett , 35 S.W.3d 12, 15 (Tex. 2000) .................... . 36, 38–39 Cervantes v. N.H. Ins. Co. , No. 04-12-00722-CV, 2013 WL 3486824 (Tex. App.—San Antonio July 10, 2013, pet. denied) (mem. op.) ...................... 26, 28 City of San Antonio v. BSR Water Co. , 190 S.W.3d 747 (Tex. App.—San Antonio 2005, no pet.) ............................ ............................................ 22, 26 , 38 City of Shavano Park v. Ard Mor, Inc. , No. 04-14-00781-CV, 2015 WL 4554524 (Tex. App.—San Antonio July 29, 2015, no pe t. h.) (mem. op.) ....... 31 DPS v. Deputy Sheriff’s Ass’n of Bexar Cnty. , No. 04-07-00233-CV, 2007 WL 3355626 (Tex. App.—San Antonio Nov. 14, 2007, pet. denied) (mem. op.) .............................................. ................................................. 2 2, 24, 25, 29 Edwards Aquifer Auth. v. Bragg , 21 S.W.3d 375 (Tex. App.—San Antonio 2000), aff’d , 71 S.W.3d 729 (Tex. 2002) ....................... ................................. 24 Edwards Aquifer Auth. v. Day , 369 S.W.3d 814 (Tex. 2012) ...................... .............. 9 Good Shepherd Med. Ctr., Inc. v. State , 306 S.W.3d 825 (Tex. App.—Austin 2010, no pet.) ....................................

................................................... ........... 32 Grand Lodge of the Order of the Sons of Hermann in Tex. v. Curry , 108 S.W.2d 574 (Tex. Civ. App.—San Antonio 1937, writ ref’d) . ...................................... 35 Guitar Holding Co., L.P. v. Hudspeth Cnty. Undergro und Water Conserv’n Dist. No. 1 , 263 S.W.3d 910 (Tex. 2008) ...................... .................................... 9 Hardee v. City of San Antonio , No. 04-07-00740-CV, 2008 WL 2116251 (Tex. App.—San Antonio May 21, 2008, no pet.) (mem. op.). ..................... 23, 25, 32 Heckman v. Williamson County , 369 S.W.3d 137 (Tex. 2012) ...................... ..... 31, 32 In re Crawford & Co. , 458 S.W.3d 920 (Tex. 2015) ...................... .............. 37, 38, 40v

In re Entergy Corp. , 142 S.W.3d 316 (Tex. 2004) ...................... ............................. 37 In re Sw. Bell Tel. Co., L.P. , 226 S.W.3d 400 (Tex. 2007) ...................... ................ 39 In re Sw. Bell Tel. Co., L.P. , 235 S.W.3d 619 (Tex. 2007) ...................... ........... 38, 42 Janek v. Gonzalez , No. 03-11-00113-CV, 2013 WL 1748795 (Tex. App.— Austin Apr. 17, 2013, no pet.) (mem. op.) ......... .............................................. 37 Juliff Gardens, L.L.C. v. TCEQ , 131 S.W.3d 271 (Tex. App.—Austin 2004, no pet.) ..........................................

................................................... ............. 40 Kelly v. Harris , 331 F.3d 817 (11th Cir. 2003) ................... ...................................... 32 Kinney Cnty. Groundwater Conserv’n Dist. v. Boulware , 238 S.W.3d 452 (Tex. App.—San Antonio 2007, no pet.) ................... ............................................. 22 Kinney v. Palmer , No. 04-07-00091-CV, 2008 WL 2515696 (Tex. App.—Sa n Antonio June 25, 2008, no pet.) (mem. op.) ........ ............................................ 34 Kuntz v. Khan , No. 03-10-00160-CV, 2011 WL 182882 (Tex. App.—Aus tin Jan. 21, 2011, no pet.) (mem. op.) ................

................................................... 26 Lujan v. Defenders of Wildlife , 504 U.S. 555 (1992) ............................. ................... 31 Mayhew v. Town of Sunnyvale , 964 S.W.2d 922 (Tex. 1998)....................... ............ 23 McDaniel v. Tex. Natural Res. Conserv’n Comm’n , 982 S.W.2d 650 (Tex. App.—Austin 1998, pet. denied) .................... ............................................... 40 Patel v. Tex. Dep’t of Licensing & Regulation , No. 12–0657, 2015 WL 3982687 (Tex. June 26, 2015) .............................. ............................................. 21, 2 6, 28 Patterson v. Planned Parenthood of Houston & Se. Te x., Inc. , 971 S.W.2d 439 (Tex. 1998) .......................................

................................................... ..... 22, 23 Pruett v. Harris Cnty. Bail Bond Bd. , 249 S.W.3d 447 (Tex. 2008) ...................... .. 35 Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574 (1999) ............................. .............. 19 Rusk State Hosp. v. Black , 392 S.W.3d 88 (Tex. 2012) ....................... ................... 22 Save Our Springs Alliance v. City of Austin , 149 S.W.3d 674 (Tex. App.— Austin 2004, no pet.) ............................. ............................................. 25, 2 6, 29 Sipriano v. Great Spring Waters of Am., Inc. , 1 S.W.3d 75 (Tex. 1999) ..................... 9 Smith v. Houston Chem. Servs., Inc. , 872 S.W.2d 252 (Tex. App.—Austin 1994, pet. withdrawn) .............................

................................................... .... 40 Subaru of Am., Inc. v. David McDavid Nissan, Inc. , 84 S.W.3d 212 (Tex. 2002) ............................................. ................................................ 22 , 36, 37, 39 Tex. Ass’n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440 (Tex. 1993) ................. 22 Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217 (Tex. 2004) ................. 21 Thomas v. Long , 207 S.W.3d 334 (Tex. 2006) ...................... ....................... 36–37, 38vi

Waco ISD v. Gibson , 22 S.W.3d 849 (Tex. 2000) ....................... ..................... 22–23 Warth v. Seldin , 422 U.S. 490 (1975) ............................. .................................. 31, 32 Young Chevrolet, Inc. v. Tex. Motor Vehicle Bd. , 974 S.W.2d 906 (Tex. App.— Austin 1998, pet. denied) .........................

................................................... .... 26
Constitutional Provisions, Statutes, and Session La ws Tex. Const. art. XVI, § 59 ........................

................................................... .. 2, 8, 12 Tex. Civ. Prac. & Rem. Code: ch. 37 ...........................................

................................................... .......... xi, 26 § 51.014(a)(8) ....................................

................................................... ..... xi, 18 Tex. Gov’t Code: § 2001.003(4) .....................................

................................................... ......... 17 § 2001.003(5) .....................................

................................................... ......... 17 § 2001.051 ........................................

................................................... ........... 17 § 2001.145 ........................................

................................................... ........... 17 Tex. Health & Safety Code: ch. 361 ........................................... ........................ 1, 4, 16, 17, 20, 30, 40, 41, 44 § 361.002 .........................................

................................................... ............. 4 § 361.003(17) .....................................

................................................... .......... 36 § 361.011(a)–(c) ..................................

................................................... .......... 4 § 361.011(d) ......................................

................................................... ............ 4 § 361.024(a) ......................................

................................................... ............ 6 § 361.026(1) ......................................

................................................... ............ 4 § 361.039 .........................................

................................................... ............ 35 § 361.061..........................................

................................................... .......... 2, 5 § 361.0641 ........................................

................................................... ........ 5, 42 § 361.067 .........................................

................................................... ........ 5, 42 § 361.068 .........................................

................................................... .............. 5 § 361.069 .........................................

................................................... .............. 5 § 361.081(a) ......................................

................................................... ............. 5 § 361.083(a) ......................................

................................................... ....... 5, 42 § 361.089(a) ......................................

................................................... ............ 6 § 361.095 .........................................

................................................... ........... 44 § 361.151 .........................................

................................................... ......... 4, 44 § 361.151(c) ......................................

................................................... ........... 44 § 361.154 .........................................

................................................... ............. 43 § 361.154(a) ......................................

................................................... .......... 44vii

§ 361.154(b) ......................................

................................................... .......... 44 § 361.161 ........................................

................................................... ............. 43 § 361.165(a) ......................................

................................................... ........... 36 § 361.321 .........................................

................................................... ........ 17, 19 § 363.022–.046 ....................................

................................................... ......... 4 § 363.062–.063 ....................................

................................................... ......... 4 § 363.092 .........................................

................................................... ............. 4 § 363.112(a) ......................................

................................................... ........... 11 § 363.112(d) ......................................

................................................... ...... 11, 12 § 364.012(a) ......................................

................................................... ........... 12 § 364.012(b) ......................................

................................................... .......... 12 § 364.012(f) ......................................

................................................... ........... 12 Texas Hum. Res. Code: § 33.0006 .........................................

................................................... ............ 37 § 33.002 ..........................................

................................................... ............. 37 Tex. Labor Code § 402.001 .........................

................................................... ...... 37 Tex. Spec. Dist. Code: § 8833.002 ........................................

................................................... ......... 2, 8 § 8833.101 ........................................

................................................... .... 2, 8, 12 § 8833.102 ........................................

................................................... ............ 2 § 9009.101 ........................................

................................................... ........... 12 Tex. Util. Code § 31.001(a) .......................

................................................... ......... 37 Tex. Water Code: § 5.012 ...........................................

................................................... ............... 2 § 5.351 ...........................................

................................................... .............. 17 § 7.302(b) ........................................

................................................... ............. 6 § 26.0136 .........................................

................................................... ........ 3, 41 § 26.023 ..........................................

................................................... ......... 3, 41 § 26.121(a)(1) ....................................

................................................... ............. 5 § 26.127(a) .......................................

................................................... .............. 3 § 26.403(a)–(c) ...................................

................................................... ........... 3 § 26.405(1) .......................................

................................................... ............. 3 § 27.003 ..........................................

................................................... ............... 3 § 27.011 ..........................................

................................................... ............... 3 § 28.031(a)(3) ....................................

................................................... ............ 3 ch. 36 ............................................

................................................... . 2, 8, 12, 30 § 36.001(1) .......................................

................................................... ............. 9 § 36.001(2) .......................................

................................................... ............ 8viii

§ 36.001(8)(E) ....................................

................................................... ....... 8–9 § 36.0015 .........................................

................................................... ............. 9 § 36.011(b) .......................................

................................................... ............. 8 § 36.101(a) .......................................

................................................... ........ 9, 10 § 36.101–.102 .....................................

................................................... ........... 9 § 36.1071(a) ......................................

................................................... ............ 9 § 36.1071(d) ......................................

................................................... ............ 8 § 36.113(a) .......................................

................................................... ............ 11 § 36.113(c)(3) ....................................

................................................... ........... 11 § 36.113(c)(4).....................................

................................................... .......... 11 § 36.113(c)(7) ....................................

................................................... ........... 11 § 36.1132 .........................................

................................................... ............. 11 § 36.116 ..........................................

................................................... .............. 10 § 36.116(a) .......................................

................................................... ............ 10 § 36.116(a)(1) ....................................

................................................... ........... 10 § 36.116(a)(2) ....................................

................................................... .......... 10 § 36.120 ..........................................

................................................... .............. 8 § 36.301–.303 .....................................

................................................... ........... 8 § 36.304 ..........................................

................................................... .............. 8 ch. 49 ............................................

................................................... .. 2, 7, 12, 30 § 49.001(a)(1) ....................................

................................................... ........... 8 § 49.002 ..........................................

................................................... ............. 8 § 49.066(a) .......................................

................................................... ............ 8 § 49.181(a) .......................................

................................................... ............. 8 § 49.182(a) .......................................

................................................... ............ 8 § 49.231(c) .......................................

................................................... ............. 8 § 49.456(a) .......................................

................................................... ............ 8 ch. 51 ............................................

................................................... ......... 12, 30 § 51.121(c) .......................................

................................................... ............ 12 § 51.121(b)(6) ....................................

................................................... ........... 12 Act of May 28, 2001, 77th Leg., R.S., ch. 1164, § 1 , 2001 Tex. Gen. Laws 2627 ..............................................

................................................... ............... 10 Act of May 28, 2001, 77th Leg., R.S., ch. 965, § 18 .01(a)(1), 2001 Tex. Gen. Laws 1933 .........................................

................................................... ............ 2 Act of May 27, 2001, 77th Leg., R.S., ch. 966, §§ 2 .44, 2.50, 2001 Tex. Gen. Laws 1991 .........................................

................................................... ........... 10 Act of May 26, 1999, 76th Leg., R.S., ch. 1141, § 1 , 1999 Tex. Gen. Laws 4035 ..............................................

................................................... ................ 2ix

Act of May 29, 1997, 75th Leg., R.S., ch. 1066, §§ 3, 5, 1997 Tex. Gen. Laws 4059 ..............................................

................................................... ......... 12, 36 Act of May 30, 1993, 73d Leg., R.S., ch. 626, §§ 1. 02, 1.08, 1993 Tex. Gen. Laws 2350 .........................................

................................................... ........... 12

Rules 30 Tex. Admin. Code: §§ 39.401–.425 ....................................

................................................... .......... 5 § 80.109(a) .......................................

................................................... ........... 17 § 80.109(b)(5) ....................................

................................................... .......... 17 § 293.3(a) ........................................

................................................... ............. 8 § 293.22(a) .......................................

................................................... ............ 8 ch. 330 ...........................................

................................................... ............... 6 § 330.3(88)–(90) ..................................

................................................... ......... 2 § 330.3(140) ......................................

................................................... ....... 6, 42 § 330.3(148)(A) ...................................

................................................... ........ 14 § 330.3(175) ......................................

................................................... ............. 3 § 330.5(a) ........................................

................................................... ............ 14 § 330.5(a)(1) .....................................

................................................... ............ 2 § 330.23 ..........................................

................................................... ............. 12 § 330.23(d) .......................................

................................................... ........... 12 §§ 330.57–.65 .....................................

................................................... .......... 6 § 330.61(b)(1) ....................................

................................................... ......... 44 § 330.61(c)(2) ....................................

................................................... ........... 6 § 330.61(d)(3) ....................................

................................................... ........... 6 § 330.61(j)(1)–(4) ................................

................................................... .......... 6 § 330.61(k)(1) ....................................

................................................... ........... 6 § 330.61(k)(3) ....................................

................................................... ........... 6 § 330.63(a) .......................................

................................................... ........ 6, 42 § 330.63(b)(4) ....................................

................................................... ............ 7 § 330.63(c)(1) ....................................

................................................... ............ 7 § 330.63(c)(2) ....................................

................................................... ............ 7 § 330.63(d)(1)(B) .................................

................................................... .......... 7 § 330.63(e) .......................................

................................................... .............. 7 § 330.63(f) .......................................

................................................... .............. 7 § 330.63(f)(3) ....................................

................................................... ............. 7 § 330.171(c)(6) ...................................

................................................... .......... 14 § 330.401(a) ......................................

................................................... ............. 7x

§ 330.401(b) ......................................

................................................... ............ 7 § 330.401(e) ......................................

................................................... ............. 7 § 330.401(f) ......................................

................................................... ............. 7 § 330.403 .........................................

................................................... .............. 7 § 330.405(a) ......................................

................................................... ............ 7 § 330.407 .........................................

................................................... .............. 7 § 330.407(c)(3) ...................................

................................................... ........... 7 § 330.421 .........................................

................................................... .............. 7 § 330.463(a)(2) ...................................

................................................... ........... 7 § 330.549(a) ......................................

................................................... ........... 13 Guadalupe County Groundwater Conservation District Rules: R. 1.1(ii)(5) ....................................

................................................... ............... 9 R. 1.1–10.6 .......................................

................................................... ............ 13 R. 5.1–5.10 .......................................

................................................... ....... 11, 14 R. 8.1 ................. xi, 13, 15, 16, 17, 19, 20 , 27, 29, 30, 32, 33, 34, 35, 36, 41, 42, 43

Other Authorities 13A Wright et al., Federal Practice and Procedure, § 3532.1 (2d ed. 1984) ............ 23 Enrolled Bill Summary, Tex. H.B. 3037, 77th Leg., R .S. (2001) ............................ 10 House Comm. on Natural Resources, Bill Analysis, Te x. H.B. 3037, 77th Leg., R.S. (2001) .................................

................................................... ......... 10 Nichol, Ripeness and the Constitution , 54 U. Chi. L. Rev. 153 (1987) ................... .. 24 Op. Tex. Atty. Gen. No. GA-1011 (2013) ............

.................................................. 30 Texas Commission on Environmental Quality, Priority Groundwater Management Areas and Groundwater Conservation Distr icts: Report to the 84th Texas Legislature, SFR-053/09 (Jan. 2015) ...................................... 10xi 

### R ECORD 

### R EFERENCES In this brief, “CR” refers to the clerk’s record; “ 1.RR” to the reporter’s record of November 4, 2014; and “2.RR” to the reporter’s r ecord of June 23, 2015.



### S TATEMENT OF THE 

### C ASE Nature of the Case : This is an interlocutory appeal from an order denyi ng a governmental unit’s plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). Course of Proceedings : T he District sued Post Oak under the Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code ch. 37, seeking a declaration that Post Oak had violated Di strict Rule 8.1 in connection with its pending application for a permit from the Commission for a landfill that, if permitted, would be located within the District’s territo ry.CR.1193–1204 (live petition). The Commission intervened, CR.1045–48, and both it and Post Oak filed p leas to the jurisdiction. CR.15–23, 1081–1132. The Distr ict moved for partial summary judgment. CR.552–765.

Trial Court : 2 n d 25th Judicial District Court, Guadalupe County The Honorable W.C. Kirkendall

Trial Court Disposition : The trial court denied both jurisdictional pleas and granted the District’s motion for partial summary j udgment. CR.548–51, 1179–92, 1218. The Commission and Post Oak each timely appealed the denial of the Com mission’s plea. CR.1223–25, 1228–31.xii



### S TATEMENT 

### R EGARDING 

### O RAL 

### A RGUMENT This case involves the boundaries of two government al entities’ authority, a large number of statutes and rules, and several dis tinct jurisdictional principles. In the Commission’s view, this array of factors sugges ts that oral argument is warranted and would aid the Court’s decisional process.


### I SSUES 

### P RESENTED The District complains of Post Oak’s failure to pro vide formal notice of its application with the Commission for a landfill permit and seeks a declaration that the proposed landfill could not operate consistent with a District rule. But the District received actual notice of Post Oak’s application, a nd it submitted comments on that application to the Commission—the state agency empo wered to make landfill-permitting decisions after considering the views of in terested parties. The Commission has not yet issued, and may never issue, an order g ranting Post Oak a permit. If it does, the District could challenge that final order on judicial review. The issues presented are: 1. Whether the District’s substantive declaratory-j udgment claim is unripe, barred under the doctrine of redundant remedies, or both.
2. Whether the District failed to establish the red ressability component of standing with respect to either its procedural clai m or its substantive claim.
3. Whether the District’s substantive claim is barr ed because it falls within the Commission’s exclusive (or, alternatively, primary) jurisdiction.

### I NTRODUCTION

Although everyone generates waste, no one wants to live beside a landfill. For that reason, the Solid Waste Disposal Act grants la ndfill-permitting authority to the Commission, an agency with statewide jurisdiction o ver solid waste disposal, rather than local water districts authorized to regulate t he spacing of, and production from,
water wells within their boundaries. That does not make local concerns irrelevant; under the Act, the Commission may decide whether to issue a permit for a proposed landfill only after hearing and considering any suc h concerns. Like other interested parties, the District has par ticipated in the administrative proceedings through which Post Oak is pursuing a la ndfill permit, and it will be free to seek judicial review of any final Commission dec ision with which it disagrees. But the administrative proceedings are still ongoing, s o whether the Commission will grant or deny Post Oak’s permit application remains to be seen. The District’s premature challenge to Post Oak’s la ndfill proposal is subject to dismissal on several grounds. Because no permit has issued, the District’s substantive claim is not ripe, and it is also impermissibl y redundant of remedies that the District could seek on judicial review. Because Dis trict rules cannot trump a landfill permit issued by the Commission, the relief the Dis trict seeks would not redress its alleged injury. And the District’s claim falls with in the Commission’s exclusive (or at least primary) jurisdiction. Accordingly, the Co urt should reverse the trial court’s order denying the Commission’s plea to the jurisdic tion and render a judgment of
dismissal.2 

### S TATEMENT OF 

### F ACTS 

### I. The Parties The District “is a groundwater conservation distric t in Guadalupe County created under and essential to accomplish the purposes of Section 59, Article XVI, Texas Constitution.” Tex. Spec. Dist. Code § 8833.0 02; see Act of May 26, 1999, 76th Leg., R.S., ch. 1141, § 1, 1999 Tex. Gen. Laws 4035, 4035–36 (reflecting that the District’s boundaries lie entirely within Guadalupe County). Although the District may not impose taxes or certain fees, it generally “has the rights, powers, privileges, functions, and duties provided by the general law o f this state, including Chapters 36 and 49[ of the Texas] Water Code.” Tex. Spec. Dist. Code §§ 8833.101, 8833.102. The Commission, which assumed the functions of the Texas Natural Resource Conservation Commission in 2001, is the state agenc y with “primary responsibility for implementing the constitution and laws of this state relating to the conservation of natural resources and the protection of the envi ronment.” Tex. Water Code § 5.012; Act of May 28, 2001, 77th Leg., R.S., ch. 965, § 18.01(a)(1), 2001 Tex. Gen. Laws 1933, 1985. One of its many functions is to is sue permits for the construction and operation of Type I municipal solid waste landf ills. Tex. Health & Safety Code § 361.061; see

30 Tex. Admin. Code § 330.3(88)–(90) (defining “[m ]unicipal solid waste,” “[m]unicipal solid waste facility,” and “[m ]unicipal solid waste landfill unit”); id. § 330.5(a)(1) (explaining that “[a] Type I landfil l unit is the standard landfill for the disposal of [municipal solid waste]”).3

Post Oak is a private entity that has a pending app lication with the Commission for a permit to construct and operate a Type I muni cipal solid waste landfill within the District’s territory. See CR.1193, 1206. 

### II. Statutory And Regulatory Background
A. The Commission’s Authority

1. The Commission “has the sole and exclusive authori ty to set water quality
standards for all water in the state” and “is the a gency with primary responsibility for implementation of water quality management func tions.” Tex. Water Code §§ 26.0136, 26.023; see

30 Tex. Admin. Code § 330.3(175) (confirming that “[w]ater in the state” includes groundwater). As “the princi pal authority in the state on matters relating to the quality of the water in the st ate,” the Commission is the agency with which “[a]ll other state agencies engaged in w ater quality or water pollution control activities shall co-ordinate [their] activi ties.” Tex. Water Code § 26.127(a). The Legislature has authorized the Commission to ex ercise its authority over water quality in a variety of specific contexts. See, e.g. , id. §§ 26.403(a)–(c), 26.405(1) (designating the Commission as “the lead agency for the [Texas Groundwater Protection Committee],” which “coordinate[s] groundwat er protection activities” of various governmental agencies); id. §§ 27.003, 27.011 (generally requiring Commission permits for injection wells in order “to maint ain the quality of fresh water in the state”); id. § 28.031(a)(3) (authorizing the Commission to issu e permits for mine shafts if, “with proper safeguards, both ground and surface water can be adequately protected from pollution”).4

2. a. The Solid Waste Disposal Act, Tex. Health & Safety Code ch. 361, is one such context. It requires the Commission to “consid er water pollution control and water quality” when addressing “matters relating to municipal solid waste management.” Id. § 361.011(d). To that end, the Act gives the Commi ssion expansive authority, providing that the agency: • “is responsible . . . for the management of munic ipal solid waste . . . and shall coordinate municipal solid waste activities”; • “shall accomplish the purposes of [the Act, see id. § 361.002,] by controlling all aspects of the management of municipal solid waste . . . by all practical and economically feasible methods con sistent with its powers and duties under [the Act] and other law”; and • “has the powers and duties specifically prescribe d by [the Act] relating to municipal solid waste management . . . and all o ther powers necessary or convenient to carry out those responsibilities u nder [the Act].” Id. § 361.011(a)–(c); see also id. § 361.026(1) (authorizing the Commission to “provide educational, advisory, and technical services concerning solid waste management to other state agencies”); id. § 361.151 (confirming that the Commission’s authority over solid-waste management is superior to that of counties). Other statutes confirm the nature and scope of the Commission’s relevant powers. The Comprehensive Municipal Solid Waste Manage ment, Resource Recovery, and Conservation Act, for example, describes the pr imacy and breadth of the Commission’s authority over the management of municipa l solid waste. Id. §§ 363.022– .046, 363.062–.063, 363.092. And a provision of the Water Code confirms that,5

“[e]xcept as authorized by the commission, no perso n may . . . discharge . . . municipal waste . . . into or adjacent to any water in t he state.” Tex. Water Code § 26.121(a)(1).
b. The Solid Waste Disposal Act also provides that th e Commission may “require and issue permits authorizing and governing t he construction, operation, and
maintenance of . . . solid waste facilities.” Tex. Health & Safety Code § 361.061. The Commission “in its discretion may, in processing a permit application, make a separate determination on the question of land use comp atibility.” Id. § 361.069. When a permit is sought, the Commission must notify “the state senator and representative who represent the area in which the facility is or will be located.” Id. § 361.0641. And when a permit application is “admin istratively complete,” id. § 361.068, the Commission “shall mail a copy of the application or a summary of its contents” to specified officials and health authori ties, allowing them to “present comments and recommendations on the permit applicat ion before the commission acts on the application.” Id. § 361.067; see also id. § 361.081(a) (mandating that the Commission require permit applicants to provide not ice to nearby landowners and businesses); 30 Tex. Admin. Code §§ 39.401–.425 (Co mmission rules governing notice). The Act does not require notice of permit ap plications to be mailed to groundwater conservation districts (except where a distri ct qualifies as a nearby landowner or has some other attribute that brings it within t he statute’s scope). The Commission may not “hear testimony in a contested case” a bsent evidence that “proper notice of the hearing was given to affected persons .” Tex. Health & Safety Code § 361.083(a).6

Under the Act, the Commission’s role does not end w hen it issues a permit. The agency “may, for good cause, deny or amend a permit it issues or has authority to issue” for several reasons, including “water pollut ion.” Id. § 361.089(a); see also Tex. Water Code § 7.302(b) (providing the grounds o n which “the commission may revoke, suspend, or revoke and reissue a permit”).

3. The body of Commission rules governing municipal s olid waste is voluminous. 30 Tex. Admin. Code ch. 330; see Tex. Health & Safety Code § 361.024(a) (granting the Commission rulemaking power). Under t hose rules, any application for a municipal solid waste landfill permit must satisf y a long list of requirements, see 30 Tex. Admin. Code §§ 330.57–.65, many of which relat e to groundwater protection. See, e.g. , id. § 330.61(c)(2), (d)(3) (requiring maps identifying “all known water wells within 500 feet of the proposed permit boundary” an d the “locations of monitor wells”), 330.61(j)(1)–(4) (requiring reports on “th e geology and soils of the proposed site,” “fault areas located within the proposed sit e,” “seismic impact zones,” and “unstable areas”), 330.61(k)(1), (3) (requiring “da ta about the site-specific groundwater conditions at and near the site” and a demons tration of how the proposed facility will comply with storm-water permitting requ irements and the Clean Water Act). The permit application must also contain a “site de velopment plan”—that is, “[a] document, prepared by [a] design engineer, tha t provides a detailed design with supporting calculations and data for the developmen t and operation of a solid waste
site.” Id. § 330.3(140). Any such plan must provide for a var iety of safeguards, id. § 330.63(a), many of which likewise relate to the p rotection of groundwater. See, e.g. ,7

id. § 330.63(b)(4) (requiring a description of “how al l liquids resulting from the operation of solid waste processing facilities will b e disposed of in a manner that will not cause surface water or groundwater pollution”), 330.63(c)(1), (2) (specifying the requirements for analyses of drainage and flood con trol), 330.63(d)(1)(B) (requiring that units be designed to “control and contain spil ls and contaminated water from leaving the facility” in a worst-case scenario), 33 0.63(e) (requiring a geology report “prepared and signed by a qualified groundwater sci entist” that addresses all regional aquifers), 330.63(f)(3) (requiring a “[g]rou ndwater sampling and analysis plan” that includes “an analysis of the most likely pathway(s) for pollutant migration in the event that the primary barrier liner system is penetrated”). The Commission’s rules further provide for groundwa ter monitoring of municipal solid waste landfills both while they are acti ve and after they have closed. Id. §§ 330.63(f), 330.401(a), (b), (e), (f); see id. §§ 330.403 (requiring installation of groundwater monitoring systems), 330.405(a) (requir ing “consistent sampling and analysis procedures”), 330.407, 330.407(c)(3) (desc ribing the detection monitoring program for Type I landfills, which requires the su bmission of various categories of information, including “the groundwater flow rate a nd direction in the uppermost aquifer”), 330.421 (providing construction specific ations for monitor wells); see also
id. § 330.463(a)(2) (authorizing the Commission’s exec utive director to increase or decrease the length of the post-closure care period ).
B. The District’s Authority

1. Chapter 49 of the Texas Water Code contains “[p]ro visions [a]pplicable to [a]ll [groundwater conservation d]istricts.” Tex. W ater Code ch. 49 (title),8

§ 49.001(a)(1); see id. § 49.002; Tex. Const. art. XVI, § 59; Tex. Spec. D ist. Code § 8833.002. Among other things, it authorizes distr icts to sue, Tex. Water Code § 49.066(a), and reflects the oversight role that t he Commission plays with respect
to district functions. See, e.g. , id. §§ 49.181(a) (providing that districts may not iss ue bonds without authorization from the Commission), 4 9.182(a) (preventing districts from altering construction plans for certain projec ts without Commission approval), 49.231(c) (requiring districts to apply to the Comm ission for permission to adopt certain fees), 49.456(a) (preventing districts from filing for bankruptcy without Commission authorization).

2. a. Chapter 36 of the Water Code (the other chapter se tting forth the District’s authority, see

Tex. Spec. Dist. Code § 8833.101) confirms that th e Commission “has exclusive jurisdiction over the creation of [ground water conservation] districts,” reviews their performance, and has the power to disso lve them. Tex. Water Code §§ 36.001(2), 36.011(b), 36.301–.303, 36.304; see id. §§ 36.1071(d) (requiring “[t]he commission [to] provide technical assistance to a d istrict during its initial operational phase”), 36.120 (requiring districts to make certai n information available to the Commission’s executive director upon request); 30 T ex. Admin. Code §§ 293.3(a) (providing that “[t]he powers and duties of all dis tricts . . . created under the Texas Constitution, . . . Article XVI, §59, are subject t o the continuing right of supervision of the State of Texas, by and through the commissio n”), 293.22(a) (setting out “procedures for commission review of groundwater conser vation district . . . noncompliance with requirements of Texas Water Code . . . Ch apter 36”); see also Tex. Water9

Code § 36.001(8)(E) (providing a definition of “[w] aste” of groundwater that applies “unless such discharge is authorized by permi t, rule, or order issued by the commission under Chapter 26”); District R. 1.1(ii)( 5), available at http://gcgcd.org/ (click on “GCGCD Rules”) (last visited Sept. 17, 20 15) (same). In governing only those districts that have “the au thority to regulate the spacing of water wells, the production from water wells, or both,” Tex. Water Code § 36.001(1), Chapter 36 also confirms the nature an d function of groundwater conservation districts. It authorizes such districts t o make and enforce rules, including rules limiting gr oundwater production based on tract size or the spacing of we lls, to provide for conserving, preserving, protecting, and recharg ing of the groundwater or of a groundwater reservoir or its su bdivisions in order to control subsidence, prevent degradation ofwater quality, or prevent waste of groundwater and to carry o ut the powers and duties provided by this chapter. Id. § 36.101(a); see id. §§ 36.0015 (using similar language to describe the purpose of Chapter 36), 36.101–.102 (granting districts rulema king authority and enforcement power), 36.1071(a) (specifying the goals that distr icts must address in their groundwater management plans); see also Edwards Aquifer Auth. v. Day , 369 S.W.3d 814, 833–36 (Tex. 2012) (discussing the history and purp ose of groundwater conservation districts); Guitar Holding Co., L.P. v. Hudspeth Cnty. Undergro und Water Conserv’n
Dist. No. 1 , 263 S.W.3d 910, 912–13 (Tex. 2008) (same); Sipriano v. Great Spring Waters of Am., Inc. , 1 S.W.3d 75, 79–80 (Tex. 1999) (same); Texas Comm ission on Environmental Quality, Priority Groundwater Management Areas and Groundwate r Conservation Districts: Report to the 84th Texas Le gislature , SFR-053/09, at 15 (Jan.10

2015) (map reflecting 100 groundwater conservation districts spread throughout the State). The phrase “prevent degradation of water quality” w as added to sections 36.101(a) and 36.116(a) in 2001 along with language confirming districts’ ability to make and enforce “rules limiting groundwater produc tion based on tract size or the spacing of wells.” Act of May 28, 2001, 77th Leg., R.S., ch. 1164, § 1, 2001 Tex. Gen. Laws 2627, 2627; Act of May 27, 2001, 77th Leg., R. S., ch. 966, §§ 2.44, 2.50, 2001 Tex. Gen. Laws 1991, 2012, 2015. The text of sectio n 36.116(a) reflects that preventing degradation of water quality is something a dis trict may accomplish by regulating “the spacing of water wells” or “the production of groundwater,” Tex. Water Code § 36.116(a)(1), (2), as by ensuring, for instance, that overproduction does not cause groundwater with a naturally higher saline content to be pulled into another well’s production zone of fresher water. See also House Comm. on Natural Resources, Bill Analysis, Tex. H.B. 3037, 77th Leg., R.S. (2001) (s tating that the bill amending section 36.116 in 2001 “d[id] not expressly delegate a ny additional rulemaking authority”); Enrolled Bill Summary, Tex. H.B. 3037, 77th Leg., R.S. (2001), available at http://www.capitol.state.tx.us/BillLookup/Text.aspx ?LegSess=77R&Bill=HB3037 (under “Additional Documents” at bottom of page) (l ast visited Sept. 17, 2015) (adding that the bill merely “clarif[ied] a groundw ater conservation district’s rulemaking authority to regulate water well spacing and production, expanding the purpose of such regulation to include the prevention o f interference between wells and the prevention of water quality degradation and est ablishing guidelines for such regulation”).11

b. Consistent with the scope of their authority, grou ndwater conservation districts are authorized to require permits “for the d rilling, equipping, operating, or completing of wells or for substantially altering t he size of wells or well pumps.” Tex. Water Code § 36.113(a) (further reflecting that dis tricts’ permitting authority encompasses proposed “change[s] in the withdrawal or use of groundwater during the term of a permit”); see

District R. 5.1–5.10 (governing District permits). The categories of information that districts may require appl icants for such permits to provide further illuminates the scope of Chapter 36. See, e.g. , Tex. Water Code § 36.113(c)(3), (4), (7) (requiring “a statement ofthe nature and purpose of the proposed use and the amount of water to be used for ea ch purpose,” “a water conservation plan or a declaration that the applicant wil l comply with the district’s management plan,” and “a drought contingency plan”); see also id. § 36.1132 (reflecting that districts’ issuance of permits should be based on modeled available groundwater).

c. Chapter 36 gives the District no authority over mu nicipal solid waste. In this respect, the District’s authority contrasts with th at of municipalities and counties, which are authorized to designate areas within thei r boundaries “in which the disposal of municipal or industrial solid waste will n ot be prohibited.” Tex. Health & Safety Code § 363.112(a); see id. § 363.112(d) (providing that the Commission “may not grant an application for a permit to process or dispose of municipal or industrial solid waste in an area in which the processing or d isposal of municipal or industrial solid waste [was timely] prohibited by an ordinance or order authorized by Subsec-12

tion (a)”); see also id. §§ 364.012(a), (b) (provisions of the County Solid Waste Control Act authorizing a county to “prohibit the disp osal of municipal or industrial solid waste in the county if the disposal of the municipa l or industrial solid waste is a threat to the public health, safety, and welfare,” so long as it timely designates “the area of the county in which municipal or industrial solid w aste disposal is not prohibited”), 364.012(f) (limiting the Commission’s authority in the same manner as section 363.112(d)); 30 Tex. Admin. Code § 330.23 (governin g relationships with other governmental entities, including municipal and county governments but excluding the District, compare

30 Tex. Admin. Code § 330.23(d), with Act of May 29, 1997, 75th Leg., R.S., ch. 1066, §§ 3, 5, 1997 Tex. Gen. Laws 4059, 4059). Defined by Chapters 36 and 49 of the Water Code, Te x. Spec. Dist. Code § 8833.101, the District’s authority also contrasts with that of other districts created under article 16, section 59 of the Texas Constitut ion. Some such districts’ powers include, for instance, those granted by Chapter 51 of the Water Code. E.g. , id. § 9009.101 (Cade Ranch Water Control and Improvemen t District No. 1 of Galveston County); Act of May 30, 1993, 73d Leg., R.S., c h. 626, §§ 1.02, 1.08, 1993 Tex. Gen. Laws 2350, 2351, 2356 (Edwards Aquifer Authori ty); see Tex. Water Code § 51.121(b)(6), (c) (authorizing water control and improvement districts to “accomplish[] by any practical means” a range of objectiv es, including “the protection, preservation, and restoration of the purity and san itary condition of water within the state”); see also 30 Tex. Admin. Code § 330.549(a) (prohibiting Type I landfills “on the recharge zone of the Edwards Aquifer”).13

3. The District’s rules total less than 50 pages. SeeDistrict R. 1.1–10.6. The applicable version of District Rule 8.1 (the rule at the center of this dispute, see CR.1193) contains three sentences: [1] All persons generating, transporting, disposing , applying, or otherwise managing substances defined under state o r federal law as solid, hazardous, or radioactive waste, or as sl udge, must follow any and all applicable federal, state, and loca l environmental statu[t]es, requirements, and regulations, includin g, but not limited to those imposed under the Solid Waste Disposa l Act (RCRA), the Public Health Service Act (the Safe Dri nking Water Act), the Federal Water Pollution Control Act (the Clean Water Act), the National Environmental Policy Act, the At omic Energy Act and the Low-Level Radioactive Waste Policy Act, as those statu[t]es, requirements or regulations are adminis tered by the appropriate agency, including but not limited to th e Texas Railroad Commission, the Texas Commission on Environmen tal Quality , the Texas Department of Health, or their successors, and the Environmental Protection Agency. [2] In the event that applicable statutes, requirem ents, or regulations require that the person generating, transport ing, applying, disposing or otherwise managing a waste or a sludge obtain a permit from an agency, and where those activities occu r within the boundaries of the District, notice of the applicati on must be provided to the District by the applicant within ten d ays of the date of application. [3] In no event may waste or sludge be permitted to be applied in any manner in any outcrop area of any aquifer withi n the [District]. CR.577–78 (line breaks added).14

III. Post Oak’s Application For A Landfill Permit Post Oak applied to the Commission for a Type I mun icipal solid waste landfill permit and an accompanying land-use compatibility d etermination for a location within the District’s territory. CR.605–765. The ap plication indicates that the proposed landfill would accept “certain special waste, ” CR.77; see CR.647–51, and the definition of “[s]pecial waste” includes certain ex empt hazardous waste. 30 Tex. Admin. Code § 330.3(148)(A). That observation does not, however, change the character of the Type I municipal solid waste landf ill permit Post Oak requested. See
id. §§ 330.5(a), 330.171(c)(6) (reflecting that Type I municipal solid waste facilities may receive special waste). Although it allegedly n ever received formal notice of Post Oak’s applications, CR.1197, 1200, the District bec ame aware of each in time to lodge objections with the Commission. CR.29, 38, 54 , 61–74, 1106–29, 1198–1200;
1.RR.8. A permit from the Commission is not the only type o f permit needed for a Type I municipal solid waste landfill. Post Oak indicate d that it would seek permits from several other entities, including the District. CR. 109–11. But consistent with the District’s regulatory purview, the permits from the Di strict would be for nothing more than “[t]he drilling of a water well on the site . . . and the drilling of monitoring wells.” CR.109; see District R. 5.1–5.10 (addressing the types of permi ts the District issues).15

IV. Trial Court Proceedings
A. After submitting its comments to the Commission, t he District filed suit under the Uniform Declaratory Judgments Act against P ost Oak even though the Commission has not issued, and may never issue, a perm it for the proposed landfill. CR.4–14 (original petition); CR.1193–1204 (live pet ition); see CR.1206, 1.RR.5. At a hearing, the District’s attorney confirmed that Pos t Oak’s permit application was the impetus for the suit and argued that a Commissi on permit authorizing the landfill “is precisely the type of situation that the Ground water District rules were intended to prohibit.” 1.RR.5. The District’s original petition alleged “two simpl e claims,” CR.463, one procedural and one substantive. See CR.4–14. Assuming the live petition retained it, t he District’s procedural claim is that Post Oak failed to provide the District notice of its permit application, in alleged violation of the sec ond sentence of Rule 8.1. CR.1197,
1200. The District’s substantive claim is that the final sentence of Rule 8.1 prohibits operation of a landfill at the proposed site. CR.12 01; seeCR.469 (the District’s assertion that “Post Oak’s proposal to dispose of sol id waste ‘within the outcrop area of the Carrizo-Wilcox recharge zone’ contravenes th e District’s Rule 8.1” (quoting Post Oak’s permit application, CR.680)). Post Oak filed a plea to the jurisdiction arguing t hat, because the Commission had not yet issued the requested permit, the Distri ct’s claim was not ripe and the District had neither been injured nor exhausted its administrative remedies. CR.15–
23. Post Oak later filed an answer that reiterated those jurisdictional objections. CR.157–58 (asserting, as defenses, that Rule 8.1 so ught to exercise powers beyond16

those granted to the District by the Texas Constitu tion and Water Code, that the Solid Waste Disposal Act preempted Rule 8.1, and th at the District had not exhausted its administrative remedies); see also CR.766–69 (Post Oak’s amended answer adding constitutional defenses); CR.1030–44 (P ost Oak’s original counterclaim (which was later non-suited, CR.1221–22) based on a lleged constitutional violations). Before responding to Post Oak’s plea, the District moved for partial summary judgment, asking the trial court to declare that Po st Oak had violated Rule 8.1’s procedural and substantive requirements. CR.25–156 (or iginal motion); CR.552–765 (amended motion reserving the issues of “civil pena lties, costs, attorney’s fees, interest on fees, injunctive relief,” and other unspe cified relief for later resolution, CR.553 n.1); but see

CR.1200–03 (amended petition dropping the District ’s request for civil penalties). Post Oak responded, again ass erting that the trial court lacked jurisdiction and alternatively contending that the District’s motion for partial summary judgment should be denied. CR.278–320, 771–971 (original and amended responses); see also CR.502–16, 985–1006 (the District’s replies to Pos t Oak’s original and amended responses). In support of the latter co ntention, Post Oak submitted evidence that it argues defeats the District’s subs tantive claim on the merits. CR.1017 (engineer’s affidavit stating that “the ope ration of [Post Oak’s] proposed landfill will not permit waste or sludge to be appl ied in any manner in any outcrop area of an aquifer within the . . . District”). The District also responded to Post Oak’s plea. CR. 490–501. In that filing, the District acknowledged that if the Commission “conve ne[d] a contested-case hearing17

regarding Post Oak’s [permit] application, the Dist rict may exercise its right to participate in that hearing as an affected person. If [the Commission] grants Post Oak a permit, then, the District may exhaust its administ rative remedies and seek judicial review of that agency decision.” CR.496; see Tex. Gov’t Code §§ 2001.003 (4), (5), 2001.051, 2001.145; Tex. Health & Safety Code § 361 .321; Tex. Water Code § 5.351; 30 Tex. Admin. Code § 80.109(a), (b)(5). But after a hearing, see CR.522, the trial court denied Post Oak’s plea, reasoning that a decl aratory-judgment suit was a proper means for the District to enforce Rule 8.1 a nd rejecting Post Oak’s preemption argument. CR.548–51.
B. Citing its “duty and responsibility to administer the Texas Solid Waste Disposal Act,” the Commission intervened, asserting th at “it is the responsibility of [the Commission], . . . not the District, to determ ine whether or not the proposed location of the landfill is proper” and confirming that “[the Commission’s] decision is subject to judicial review.” CR.1046; see CR.1133–36 (amended intervention petition); CR.1064–70 (the District’s unsuccessful moti on to strike the Commission’s intervention). The Commission then filed a plea to the jurisdictio n that also addressed the District’s and Post Oak’s summary-judgment contentions . CR.1081–1129; CR.1130–32 (supplement). In this filing, the Commission assert ed that the District lacked statutory authority to control whether Post Oak could op erate a landfill at the proposed location, asserting exclusive (or at least primary) jurisdiction over the landfill-permitting process. CR.1082–97. The Commission also as serted that the District’s suit18

was not ripe because Post Oak’s permit application might be denied by the Commission, in which case the proposed landfill would nev er be constructed. CR.1097–99;

see CR.1146–65 (the District’s response).
C. In a twelve-page order, the trial court granted th e District’s motion for partial summary judgment and rejected the arguments present ed in the Commission’s plea. CR.1179–88; see also CR.1188–90 (rejecting Post Oak’s constitutional ass ertions). Although the order stated that the Commission had g ranted Post Oak’s permit application, CR.1180, that statement was—and remains— inaccurate. In a letter to the trial court requesting a ruling on its plea, the Co mmission noted that its Executive Director had merely “recommended that Post Oak be i ssued a permit.” CR.1206. The letter went on to explain the additional hurdle s that Post Oak would need to clear before obtaining a permit, adding that “[i]t is entirely possible that the Commissioners ultimately will decline to issue Post Oa k a permit. Alternatively, it is possible that the permit will be issued, but under ter ms that are satisfactory to the [District].” CR.1206. Several months later, the trial court held a hearin g on the Commission’s plea and the District’s motion to strike, 2.RR.4–16, and den ied them both. CR.1218, 1220.
Post Oak non-suited its constitutional counterclaim s, CR.1221–22, and both it and the Commission timely appealed the trial court’s or der denying the Commission’s plea. CR.1223–25, 1228–31; see Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).19 

### S UMMARY OF THE 

### A RGUMENT An appellate court may “choose among threshold grou nds for denying audience
to a case on the merits.” Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 585 (1999). Several such grounds exist here.

1. The District’s substantive claim is not ripe. That claim requests a declaration that operation of Post Oak’s proposed landfill woul d violate District Rule 8.1, and it is expressly linked to Post Oak’s pursuit of a land fill permit from the Commission. The District admits that, if the Commission were to issue such a permit, it would be able to challenge that final decision on judicial r eview, and it is undisputed that the landfill project could not move forward without a C ommission permit. The District would have a ripe claim only if the underlying admi nistrative proceedings result in a final Commission order granting Post Oak’s requeste d permit, and the District would be free to pursue that claim, after exhaustin g its administrative remedies, on judicial review. No such claim could be a proper part of this declar atory-judgment suit. It could be litigated only in a separate suit authorized by section 361.321 of the Solid Waste Disposal Act and governed by the Administrative Pro cedure Act. And because such
a suit would allow the District to seek full relief on the substantive claim it attempted to raise here, this declaratory-judgment suit is ju risdictionally barred under the doctrine of redundant remedies.

2. Because the District failed to allege a redressabl e injury with respect to either its procedural claim or its substantive claim, its entire declaratory-judgment suit should be dismissed for lack of standing.20

Assuming it is even still part of the case, the Dis trict’s procedural claim challenges Post Oak’s alleged failure to notify the Dis trict of its permit application. But it is undisputed that the District received actual notice of that application in time to file comments with the Commission, and its live pet ition requests no relief with regard to that claim. For each of these reasons, a ju dgment in the District’s favor on its putative procedural claim would not give the Di strict any relief beyond what it has already obtained outside of court. Albeit for different reasons, the District’s substa ntive claim is likewise not redressable. To the extent Post Oak argues it is ripe , that claim depends on the notion that application of District Rule 8.1 would prevent Post Oak’s landfill project from moving forward even if Post Oak obtained a permit f rom the Commission. But under the relevant statutes, the District has no authorit y over solid-waste disposal or to prevent degradation of groundwater by any means oth er than regulating the spacing of or production from water wells. Because a Distri ct rule could therefore not prevent action authorized by a landfill permit from th e Commission, granting the District full relief on its substantive claim regardin g the import of District Rule 8.1 would not redress its alleged injury flowing from the ant icipated operation of Post Oak’s proposed landfill.

3. The District’s substantive claim also falls within the Commission’s exclusive jurisdiction. The Solid Waste Disposal Act creates a detailed regulatory scheme under which the Commission is authorized to grant or deny landfill permits such as the one sought by Post Oak, and any Commission action u nder that scheme may be made21

only after detailed consideration of the very groun dwater issues that animate the District’s concerns. When considering whether a claim falls within an agency’s exclusive jurisdiction, courts look to the substance of a plaintiff’s claim, not the plaintiff’s characterization of its claim. Here, the District’s substantive claim is expressly tied to Post Oak’s request for a permit from the Commiss ion, and as already noted, that claim could prevent operation of the proposed landf ill only by preventing Post Oak from obtaining a Commission permit. Alternatively, the District’s substantive claim fal ls within the Commission’s primary jurisdiction. The Commission is staffed with e xperts trained to apply the detailed requirements of the Solid Waste Disposal Act and related administrative rules when deciding whether to grant permits for municipa l solid waste landfills, and allowing the Commission to fulfill that statutory fun ction furthers the legislative objective of decisional uniformity in an area prone t o local bias. For each of these reasons, the Court should reverse the trial court’s or der denying the Commission’s plea to the jurisdiction and render a judgment of dismis sal.



### S TANDARD AND 

### S COPE OF 

### R EVIEW Whether a trial court has subject-matter jurisdicti on is a question of law that the
Court reviews de novo

. Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004); see Patel v. Tex. Dep’t of Licensing & Regulation , No. 12–0657, 2015 WL 3982687, at *5 (Tex. June 26, 2015) (reflecting the jurisdictional nature of standing, ripeness, and the redundant-remedies doctrine); Subaru of Am., Inc. v. David McDavid Nissan, Inc. , 84 S.W.3d 212, 220 (Tex. 2002) (same, for exclusi ve jurisdiction).22

Although the doctrine of primary jurisdiction is pr udential, rather than jurisdictional, it is properly raised in an interlocutory a ppeal following the denial of a plea to the jurisdiction and is likewise subject to de novo review. Subaru , 84 S.W.3d at 220, 222; City of San Antonio v. BSR Water Co. , 190 S.W.3d 747, 757 n.3 (Tex. App.— San Antonio 2005, no pet.); seeCR.1096–97 (the Commission’s plea raising this issue). Because defects in subject-matter jurisdiction cann ot be waived, appellants are not limited to the arguments raised in their pleas. Rusk State Hosp. v. Black , 392 S.W.3d 88, 94–95 & n.3 (Tex. 2012) (disapproving of Kinney Cnty. Groundwater Conserv’n Dist. v. Boulware , 238 S.W.3d 452, 461 (Tex. App.—San Antonio 2007, no pet.), and other like decisions); Tex. Ass’n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 445 (Tex. 1993). They may raise additional jur isdictional arguments for resolution on appeal. Id

. 

### A RGUMENT
I. The District’s Substantive Claim Is Not Ripe, And I t Is Impermissibly Redundant Of A Suit For Judicial Review.
A. 1. Ripeness “is a threshold issue that implicates sub ject matter jurisdiction” and “emphasizes the need for a concrete injury.” Patterson v. Planned Parenthood of Houston & Se. Tex., Inc. , 971 S.W.2d 439, 442 (Tex. 1998); accord DPS v. Deputy Sheriff’s Ass’n of Bexar Cnty. , No. 04-07-00233-CV, 2007 WL 3355626, at *2 (Tex. App.—San Antonio Nov. 14, 2007, pet. denied) (mem. op.). A case is not ripe when its resolution depends on contingent or hypothetica l facts, or upon events that have not yet, and may never, come to pass. Waco ISD v. Gibson , 22 S.W.3d 849, 852 (Tex.23

2000); Patterson , 971 S.W.2d at 442–43 (citing, e.g. , 13A Wright et al., Federal Practice and Procedure, § 3532.1, at 130 (2d ed. 1984)) ; Hardee v. City of San Antonio , No. 04-07-00740-CV, 2008 WL 2116251, at *1 (Tex. Ap p.—San Antonio May 21, 2008, no pet.) (mem. op.); f ; see Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998) (observing that “the ripeness doctrine conserves judicial time and resources for real and current controversies, rather than abstract, hypothetical, or remote disputes”). The ripeness doctrine applies in any suit, includin g one seeking a declaratory judgment. As the Court confirmed in Hardee , “[a] declaratory judgment is appropriate only if there is a justiciable controversy abou t the rights and status of the parties and the declaration will resolve the controversy.” 2008 WL 2116251, at *1. “To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests an d not merely a theoretical dispute.” Bexar–Medina–Atascosa Counties Water Control & Impr ovement Dist. No. 1 v. Medina
Lake Prot. Ass’n , 640 S.W.2d 778, 779–80 (Tex. App.—San Antonio 198 2, writ ref’d n.r.e.) (quoted in Bonham State Bank v. Beadle , 907 S.W.2d 465, 467 (Tex. 1995)). Ripeness is especially important in the administrat ive context. The doctrine “prevents courts from entangling themselves in abst ract disagreements over administrative policies while at the same time serving t o protect the agencies from judicial
interference until an administrative decision has b een formalized and its effects felt in a concrete way by the challenging parties.” Patterson , 971 S.W.2d at 443 (internal quotation marks omitted); see also id. (quoting the statement in Nichol, Ripeness and
the Constitution , 54 U. Chi. L. Rev. 153, 178 (1987), that the ripe ness doctrine “allows24

the courts to postpone interfering when necessary s o that other branches of government . . . may perform their functions unimpeded”). In “generally preclud[ing] judicial review of an administrative action that is n ot final,” the ripeness doctrine thus avoids prematurely interrupting agency proceedings, promotes judicial economy, sustains respect for the agency’s administrative pr ocess, and protects the agency’s
autonomy. Edwards Aquifer Auth. v. Bragg , 21 S.W.3d 375, 380 (Tex. App.—San Antonio 2000), aff’d , 71 S.W.3d 729 (Tex. 2002). Several cases illustrate proper application of thes e principles. In Deputy Sheriff’s
Association , for instance, this Court considered a claim that certain peace officers fell within a statutory exception to investigation by th e Texas Department of Public Safety. 2007 WL 3355626, at *1–2. After a sheriff i ssued a letter stating that one of the conditions necessary to invoke the exception ha d not been satisfied, an association acting on the officers’ behalf sought a declar ation that the condition had in fact
been satisfied. Id. at *2. In its ripeness analysis, the Court began by noting that, although “the Department has the authority to conduct investigations ofalleged violations of [the statute],” it had “not concluded its investigation. Whe ther the Department will reach an adverse decision against the officers in questio n, impose civil penalties, or refer the matter for criminal prosecution is unknown at t his time.” Id. The Court further explained that the association’s claim “presuppose[ d] that (1) the Department will conclude the officers in question do not qualify fo r the [statutory] exception and (2) the Department will take actions to preclude th e off-duty employment of the officers.” Id. at *3.25

Rejecting the association’s reliance on the sheriff ’s letter, the Court concluded that “the Department is not necessarily bound by th e Sheriff’s determination of the facts” and that “there [wa]s no way to predict what determination, if any, the Department w[ould] reach. Consequently, the relief th at the Association seeks, at this point, would be based on hypothetical or contingent events that may not occur.” Id. Accordingly, the association’s claim was not ripe. Id. ; see also Hardee , 2008 WL 2116251, at *3 (finding a lack of ripeness where a defendant city had neither been given the opportunity to make a final determination regarding the applicability of land-use regulations nor issued or denied any land- use permits). A decision from the Third Court of Appeals is also instructive. In Save Our Springs Alliance v. City of Austin , the plaintiffs claimed that a city was approving development projects in violation of an ordinance and sought to bar the city from granting permits for those projects. 149 S.W.3d 674, 679 (Tex. App.—Austin 2004, no pet.). The city argued that the claims were not rip e “because they were not based on the application of the [o]rdinance to any property or development permit.” Id. at 679–80. Although developers had submitted permit ap plications, and a committee consisting of city staff members had approved the a pplications, only the City zoning committee had final authority to issue permits, and it had not yet done so. Id. at 684–
85. The court found that, absent issuance of permits, t he plaintiffs’ claims were not ripe. Id. at 685. It explained that [t]he individual and particular nature of th[e appl icable] statutory scheme [governing which ordinances applied to pendi ng devel-26

opment applications, see id. at 678,] requires that individual permits be issued or denied for a controversy to be ri pe for adjudication. Otherwise, a court would be ruling on a hypot hetical application of land-use regulations to plats and interfe ring with the functions of land-use regulatory agencies before th ey would have the opportunity to perform those functions themselv es. Id. at 684. The Court further noted that “because a gr ant of a permit by the [c]ity does not automatically result in immediate developm ent and [the plaintiffs] would have ample opportunity in such case to challenge th e granted permit, they will not suffer any additional hardship by waiting until a p ermit is granted.” Id. at 685; cf.
BSR Water Co. , 190 S.W.3d at 755 (finding ripeness where the all eged breach of an agreement gave rise to an injury independent of the Commission’s future decision about whether to grant a certificate of convenience and necessity).

2. Under the redundant-remedies doctrine, “the power of courts to issue declaratory judgments . . . in the face of administrative proceedings is limited.” Kuntz v.
Khan , No. 03-10-00160-CV, 2011 WL 182882, at *4 (Tex. A pp.—Austin Jan. 21, 2011, no pet.) (mem. op.). A court “will not entert ain an action brought under the [Uniform Declaratory Judgments Act] when the same c laim could be pursued through different channels.” Patel , 2015 WL 3982687, at *6 (addressing a situation in which judicial review had not yet been sought, see id. at *2). Accordingly, “‘[w]hen a statute provides a method for attacking an agency order, a declaratory judgment
action directed at that order will not lie.’” Cervantes v. N.H. Ins. Co. , No. 04-12- 00722-CV, 2013 WL 3486824, at *2 (Tex. App.—San Ant onio July 10, 2013, pet. denied) (mem. op.) (quoting Young Chevrolet, Inc. v. Tex. Motor Vehicle Bd. , 974 S.W.2d 906, 911 (Tex. App.—Austin 1998, pet. denied )).27

B. 1. The District’s substantive claim—that it would be injured by Post Oak’s construction and operation of the proposed landfill —is not ripe. That claim is the focus of the live petition, which complains at the outset “of [Post Oak’s] pursuit of a landfill permit, proposing construction and opera tion of a landfill in Guadalupe County in violation of [the third sentence of] the District’s Rule 8.1,” CR.1193, and later confirms that the District is “seeking a decl aration that the District’s Rule 8.1 prohibits Post Oak from operating a waste disposal facility at the proposed site.” CR.1195; see CR.1201 (request for declaratory relief); CR.1202 ( prayer). The District’s claim depends on the Commission’s hy pothetical issuance of a landfill permit—an event that has not yet occurred and may never occur. As the District’s attorney explained in the trial court, the proposed landfill has not been permitted. It’s still being reviewed b y [the Commission]; but were it to be permitted, it would allow for construction of a landfill, and for this landfill to accept . . . a variety of different types of waste [including sludge]. And the facility is proposed to be located on the outcrop of [the] Carrizo-Wilcox A quifer. So this is precisely the type of situation that the Gr oundwater District rules were intended to prohibit. 1.RR.5. Of course, if the Commission does not issue the requested permit, Post Oak will be unable to build or operate the proposed lan dfill, so there will be no occasion for a court to decide whether such a hypothetical l andfill would run afoul of District Rule 8.1. This state of affairs describes an unripe claim.

2. The District’s substantive claim is also barred un der the doctrine of redundant remedies. Because a successful suit for judicial re view of a final Commission order granting a permit would give the District full reli ef on its substantive declaratory-28

judgment claim, see

CR.1193, 1202, that claim is impermissibly redunda nt. See Patel , 2015 WL 3982687, at *6; Cervantes , 2013 WL 3486824, at *2. Dismissal of the District’s substantive claim would be appropriate on t his basis as well.
C. Neither the trial court’s reasoning nor the argume nts that the District presented below can save its substantive claim from di smissal.

1. The trial court appears to have misunderstood the status of Post Oak’s request for a landfill permit. In its order on the District ’s motion for partial summary judgment, the court purported to “take[] judicial knowl edge that [the Commission] granted Post Oak a permit to construct and operate [Post Oak’s] Proposed Landfill.” CR.1180. That statement was inaccurate when made, a nd it remains inaccurate today. See 1.RR.5 (the District’s confirmation that the propos ed landfill “has not been permitted”). As the Commission explained in a lette r to the trial court, the Commission’s executive director has merely recommended th at the permit be issued, and that recommendation does not mean that a permit wil l issue. The next step is for a contested case hearing to be held at the S tate Office of Administrative Hearings[, after which] . . . the ad ministrative law judges . . . will issue a proposal for decision . . ., which the TCEQ Commissioners will then consider. . . . “[O]nly the TCEQ Commissioners—not the [Commission’s executive director ] and not the [administrative law judges]—can order the issua nce of the permit Post Oak has requested, and the Commissioner s are not bound by the recommendations of either the [executi ve director] or the [administrative law judges]. CR.1206; see

CR.1208 (Post Oak’s letter asking the Commission t o refer the matter to the State Office of Administrative Hearings).29

The recommendation of the Commission’s executive d irector is thus analogous
to the sheriff’s letter in Deputy Sheriff’s Association , 2007 WL 3355626, at *2–3, and the staff-level approvals in Save Our Springs , 149 S.W.3d at 684–85, neither of which established a ripe claim. By its own admission, the District will have an opportunity not only to participate in the upcoming contested-c ase hearing and exhaust its administrative remedies, but also to challenge, on ju dicial review, any final Commission order granting Post Oak a permit. CR.496. If such a n order is made, then—and only then—would the District have a ripe claim that coul d be resolved on judicial review.
See Save Our Springs , 149 S.W.3d at 685. Because that claim would be pu rsued in a new and separate action, the Court should dismiss t he District’s substantive claim in this declaratory-judgment suit.

2. In the trial court, the District argued that the C ommission had “mischaracterized the District’s claims,” asserting that “the District is seeking a declaration of the rights of the parties under its Rule 8.1,” rath er than asserting “a challenge to an as-yet-unissued solid waste disposal permit.” CR.11 48. The trial court accepted this argument. In its order denying Post Oak’s plea, it stated that the District “is not seeking to challenge any [Commission] decision or o rder” but is rather complaining of “Post Oak’s failure to comply with the District’ s own Rule 8.1” and found the suit “undoubtedly ripe” because “Post Oak has clear ly indicated [its] intention to build a waste disposal site and has not attempted a ny compliance with the District’s rules.” CR.548, 550–51; see also CR.1162–64 (the District’s argument on ripeness). But as already noted, the live petition specificall y references Post Oak’s permit application, CR.1193, and a statement of the Distri ct’s trial counsel confirms that the30

application is what led the District to sue. 1.RR.5 . Neither of those observations should be surprising; if the District could prevent the Commission from issuing a permit before the administrative process has run it s course, it would achieve its objective of ensuring that the landfill project does not move forward.
The District’s and trial court’s view that the Dist rict could enforce Rule 8.1 to achieve that result regardless of whether the Commi ssion issues a permit rests on a misunderstanding of the law. CompareCR.1153 (stating that the Solid Waste Disposal Act and Chapter 36 of the Water Code “grant [ the Commission] and the District overlapping authority with regard to protecti on of water quality from solid waste disposal activities”) and

CR.1156–57 (citing Texas Attorney General Opinion GA1011 (2013), which concerned a water control and im provement district that was granted powers under Water Code Chapters 49 and 51 (rather than Chapters 49 and 36)), with supra pp. 3–12 (citing the statutory provisions that define the Commission’s and the District’s distinct spheres of autho rity and reflect the District’s complete lack of authority over municipal solid waste disposal). In any event, even assuming Rule 8.1 would apply to Post Oak’s proposed landfill, it could not trump a Commission permit, so “a dvising [the parties] of their rights
under Rule 8.1” would not “conserve time and resour ces.” CR.1163; see infra Part II.B.2. Moreover, the District’s argument that the Solid Waste Disposal Act does not limit the District’s powers, e.g. , CR.1115, is unavailing because the District’s powers do not include the ability to say where or h ow a landfill permitted by the Commission may or may not be located or operate. Ac cordingly, to avoid requesting31

an impermissible advisory opinion, the District wou ld have to challenge the propriety of a permit, and it may do so (assuming the Com mission issues a permit) only after exhausting its administrative remedies and su ing for judicial review.
II. Because It Did Not Allege A Redressable Injury, The District Lacks Standing To Sue.
A. The doctrine of standing “serves to safeguard the separation of powers by ensuring that the judiciary does not encroach upon the executive branch by rendering advisory opinions, decisions on abstract questions of law that do not bind the parties.” Bacon v. Tex. Historical Comm’n , 411 S.W.3d 161, 174 (Tex. App.—Austin 2013, no pet.). To establish standing under the Tex as Constitution, a plaintiff must allege “a concrete injury to [itself] and a real co ntroversy between the parties that will be resolved by the court.” Heckman v. Williamson County , 369 S.W.3d 137, 154 (Tex. 2012); accord City of Shavano Park v. Ard Mor, Inc. , No. 04-14-00781-CV, 2015 WL 4554524, at *4 (Tex. App.—San Antonio July 29, 2 015, no pet. h.) (mem. op.). When addressing this question, Texas courts often “ look to the similar federal standing requirements for guidance.” Brown v. Todd , 53 S.W.3d 297, 305 (Tex. 2001); see Heckman , 369 S.W.3d at 154 (noting that Texas standing doc trine “parallels the federal test for Article III standing” articulated in Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61 (1992)). One essential element of standing requires a plaint iff to “allege facts from which it reasonably could be inferred,” Warth v. Seldin , 422 U.S. 490, 504 (1975), that it is “likely, as opposed to merely speculative, that the [plaintiff’s alleged] injury will be redressed by a favorable decision.” Defenders of Wildlife , 504 U.S. at 561 (internal32

quotation marks omitted); see Good Shepherd Med. Ctr., Inc. v. State , 306 S.W.3d 825, 836 (Tex. App.—Austin 2010, no pet.). To satisfy th is requirement, the plaintiff’s allegations must reflect a “substantial probability ” that the relief requested will redress the alleged injury, Warth , 422 U.S. at 504, and the inquiry proceeds on a cl aimby-claim basis. See Heckman , 369 S.W.3d at 155 (explaining that “[i]f, for exa mple, a plaintiff suing in a Texas court requests injunctiv e relief as well as damages, but the injunction could not possibly remedy his situation, then he lacks standing to bring that claim”). A plaintiff’s failure to show redress ability requires dismissal for lack of subject-matter jurisdiction. See, e.g. , Kelly v. Harris , 331 F.3d 817, 820–21 (11th Cir. 2003); Brown , 53 S.W.3d at 306; Good Shepherd , 306 S.W.3d at 837, 838.
B. The District failed to establish redressability wi th respect to either its putative procedural claim or substantive claim. And because “[a] declaratory judgment is appropriate only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the de claration sought,” Bonham State
Bank , 907 S.W.2d at 467; Hardee , 2008 WL 2116251, at *1, that observation forms a
basis for dismissal of the District’s suit in full.

1. To the extent the live petition articulates it, th e District’s procedural claim is that it was injured by Post Oak’s failure, in alleg ed violation of the second sentence of District Rule 8.1, to give the District notice o f its application with the Commission for a landfill permit. CR.1200. In connection with that putative claim, the District alleged that it learned from third parties of Post Oak’s December 2011 application for a land-use compatibility determination in Febru ary 2012. CR.1197, 1198. The District further alleged that, the following month, it sent the Commission comments33

on that application and a report from its geologic consultant. CR.1198–99. Similarly, although the District alleged that “at no time did Post Oak provide notice to the District of its application for a landfill permit, in accordance with District Rule 8.1,” the District admits that it timely submitted its co mments at a public meeting on that application. CR.1200. After laying out these facts, the District’s live p etition requested a declaration “that disposal of solid waste at the site proposed by Post Oak violates the District’s Rule 8.1.” CR.1200–01. Its prayer for relief sought , in full, rendition of judgment: 1. declaring that operation of a landfill at the lo cation proposed by Defendant Post Oak Clean Green, Inc. on the outc rop of the Upper Wilcox Aquifer violates District Rule 8.1; an d 2. awarding the District its costs and attorneys’ fees, expert witness fees and postjudgment interest on those fees. 3. granting the District such other relief, includi ng supplemental and injunctive relief, to which it may show itself entitled.
CR.1202–03. For at least two reasons, that requested relief wou ld not redress any injury flowing from Post Oak’s alleged failure to provide form al notice. First, it is undisputed
that the District received actual notice of Post Oa k’s applications in time for it to prepare and submit comments to the Commission, so a judicial decree regarding the provision of notice would give the District no reli ef beyond what it has already obtained outside of court. Second, unlike the origina l petition, the District’s live petition requested no relief that could arguably redres s the alleged notice failure; the requested declaration spoke in terms of the substanti ve claim alone. CR.1202–03; cf. CR.13 (original petition requesting both a declarat ion that Post Oak violated Rule34

8.1’s notice requirement and an award of penalties for that alleged violation); see Kinney v. Palmer , No. 04-07-00091-CV, 2008 WL 2515696, at *2 (Tex. App.—San Antonio June 25, 2008, no pet.) (mem. op.) (explainin g that an amended petition “completely replaces and supersedes the previous pleadi ng”). In light of this difference between the original an d amended petitions, the Court could correctly determine that the District dropped its procedural claim entirely. But even assuming the live petition contains a sufficie nt vestige of that claim to keep it in the case, the District failed to establish redressa bility with respect to it, requiring its
dismissal.

2. As already noted, the District’s substantive claim is based on the injury that would allegedly occur if Post Oak were permitted to construct and operate the proposed landfill. CR.1193, 1195, 1201. On the merits of that claim, Post Oak asserts that the proposed landfill would not, in fact, violate t he third sentence of Rule 8.1. See CR.1017. But in this declaratory-judgment suit, the courts should not reach the merits because the District’s substantive claim, like its putative procedural claim, should be dismissed for lack of redressability if the Cour t concludes that it is ripe and not
redundant. Even assuming the District is correct that the thir d sentence of Rule 8.1 would apply to Post Oak’s proposed landfill, it could not , as a matter of law, actually prevent Post Oak from constructing and operating the l andfill if it obtains the requisite permits, including the permit it has requested from the Commission. As explained above, the Commission has broad authority over wate r quality in general and in the context of solid-waste management in particular. See supra pp. 3–7. Moreover, the35

Commission’s authority is superior to that of gover nmental entities such as the District, which function under Commission supervision and whose powers focus on the spacing of, and production from, water wells. See supra pp. 8–12; see also Pruett v. Harris Cnty. Bail Bond Bd. , 249 S.W.3d 447, 452 (Tex. 2008) (noting that “[a] n agency may adopt only such rules as are authorized by and consistent with its statutory authority”); Grand Lodge of the Order of the Sons of Hermann in Tex. v. Curry , 108 S.W.2d 574, 576 (Tex. Civ. App.—San Antonio 193 7, writ ref’d) (confirming that “a water improvement district is a creature ofstatute and only has such jurisdiction as is expressly given it by statute, or is implied as a necessary incident to the jurisdiction so expressly given”). Especially as Texas water resources grow more scare and disputes about access to groundwater increase, water conservation distric ts’ powers are important. But they neither overlap with nor diminish the Commissi on’s authority to grant permits for landfills. A declaration that any Commission pe rmit that might issue for Post Oak’s proposed landfill would authorize activity th at Rule 8.1 prohibits could provide redress on the District’s substantive claim on ly if the Court concluded that a District rule could trump a Commission permit. But the relevant statutes compel the opposite conclusion. For that reason, the District’s reliance below on s ection 361.039 of the Solid Waste Disposal Act, which provides that the Act “do es not diminish or limit the authority of the commission, the Department of Stat e Health Services, or a local government in performing the powers, functions, and duties vested in those governmental entities by other law,” was misplaced. See CR.1159. As an initial matter,36

the District does not fall within the Act’s definit ion of a “[l]ocal government.” See Tex. Health & Safety Code §§ 361.003(17), 361.165(a ); Act of May 29, 1997, 75th Leg., R.S., ch. 1066, §§ 3, 5, 1997 Tex. Gen. Laws 4059, 4059. But more importantly, no law vests the District with any “powers, functio ns, [or] duties” that could interfere with the Commission’s forthcoming decision abo ut whether to grant Post Oak a landfill permit. The District is, of course, free to tell the Commis sion why it believes a permit should not issue. It has already done so through it s comments, and it may reiterate its concerns at the contested-case hearing, which i s currently set to begin early next year. That input may influence the Commission’s ult imate permitting decision. But under Texas law, the District’s power is generally inferior to that of the Commission, and the District has no authority with respect to w aste management at all. Accordingly, a judicial decision that the third sentence of Rule 8.1 applies to Post Oak’s proposed landfill could not prevent the Commission from issuing a permit that allows the project to go forward, and that observatio n requires dismissal of the District’s substantive claim for lack of redressabilit y. III. The District’s Substantive Claim Is Barred Und er The Doctrine Of Exclusive (Or, Alternatively, Primary) Jurisdiction

. A. 1. An agency has exclusive jurisdiction when the Legi slature gives it sole authority to make the initial determination in a disp ute. Subaru , 84 S.W.3d at 221; Cash Am. Int’l, Inc. v. Bennett , 35 S.W.3d 12, 15 (Tex. 2000). Exclusive jurisdict ion may be established through: (1) an “express legislative indication,” Thomas v. Long , 20737

S.W.3d 334, 340 (Tex. 2006); (2) a statute authoriz ing a governmental entity to administer rights unknown at common law, id. at 341–42; or (3) the creation of a “pervasive regulatory scheme” reflecting legislative in tent that an agency have the sole power to make an initial determination or that the regulatory process is the exclusive means of remedying the problem to which the regulat ion is addressed. In re Entergy Corp. , 142 S.W.3d 316, 322 (Tex. 2004); Subaru , 84 S.W.3d at 221; Apollo Enters., Inc. v. ScripNet, Inc. , 301 S.W.3d 848, 859 (Tex. App.—Austin 2009, no pe t.). Pervasive regulatory schemes provide detailed legis lative instructions for how agencies should resolve disputes or make initial de terminations in specialized areas of the law. They exist in a variety of contexts. See, e.g. , Entergy , 142 S.W.3d at 322– 23 (discussing the Public Utility Regulatory Act, w hich “establish[es] a comprehensive and adequate regulatory system for electric ut ilities to assure rates, operations, and services that are just and reasonable,” Tex. Ut il. Code § 31.001(a)); In re Crawford & Co. , 458 S.W.3d 920, 923–24 (Tex. 2015) (discussing th e Workers’ Compensation Act, which “designates the Department of Ins urance as the administrative agency responsible ‘[for overseeing] the workers’ c ompensation system of this state’ and establishes the Division of Workers’ Compensati on within the Department to ‘administer and operate’ that system” (quoting Tex. Labor Code § 402.001)); Janek
v. Gonzalez , No. 03-11-00113-CV, 2013 WL 1748795, at *1, *5–6 (Tex. App.—Austin Apr. 17, 2013, no pet.) (mem. op.) (discussing the Supplemental Nutrition Assistance Program, under which the Texas Health and Hum an Services Commission oversees the distribution of food stamps, see, e.g. , Tex. Hum. Res. Code §§ 33.0006, 33.002).38

Assessment of whether a claim falls within or outsi de of an agency’s exclusive jurisdiction “does not depend on the label of the c ause of action asserted” by a party seeking to establish subject-matter jurisdiction. Crawford , 458 S.W.3d at 926. Rather,
“courts must look at the substance of the claim.” Id . “A party cannot circumvent an agency’s exclusive jurisdiction by filing a declara tory-judgment action if the subject matter of the action is one ‘over which the Legisla ture intended the [administrative agency] to exercise exclusive jurisdiction.’” Blue Cross Blue Shield of Tex. v. Duenez , 201 S.W.3d 674, 676 (Tex. 2006) (quoting Thomas , 207 S.W.3d at 342). In applying these principles, the Texas Supreme Cou rt makes a “close inspection” of declaratory-judgment claims and focuses on the “real point of contention,” rather than how the plaintiff has “attempt[ed] to c ast” its claims. In re Sw. Bell Tel. Co., L.P. , 235 S.W.3d 619, 625, 626 (Tex. 2007). The Court l ooks to whether a claim broadly “arise[s] out of” conduct within the scope of an agency’s exclusive jurisdiction. Crawford , 458 S.W.3d at 928; see id . at 927–28 (holding that the plaintiffs’ claims regarding the investigation, handling, and s ettling of claims for workers’ compensation benefits fell within an agency’s exclusiv e jurisdiction over such disputes); cf. BSR Water Co. , 190 S.W.3d at 756 (holding that while the Texas W ater Code made the Commission responsible for granting certificates of convenience and necessity, it did not give the Commission exclusive j urisdiction to resolve breach-ofcontract disputes). When a party files a claim within an agency’s exclu sive jurisdiction, it must generally await the administrative proceedings’ comple tion, exhaust its administrative remedies, and seek judicial review in the manner de signated by statute. Cash Am. , 3539

S.W.3d at 15. Until then, “the trial court lacks su bject matter jurisdiction and must dismiss the claim[].” Subaru , 84 S.W.3d at 221.

2. The doctrine of primary jurisdiction applies “when a court and an agency have concurrent original jurisdiction over a dispute.” Cash Am. , 35 S.W.3d at 18. It “operates to allocate power between courts and agencie s when both have authority to
make initial determinations.” Subaru , 84 S.W.3d at 221. Primary jurisdiction respects the special competenc e of administrative agencies, which are typically best positioned to fulfill esse ntial legislative objectives and maintain decisional uniformity in areas that involve te chnical and intricate questions of fact and thus require specialized knowledge and exp erience. Cash Am. , 35 S.W.3d at
18. A trial court “should allow an administrative a gency to initially decide an issue when: (1) an agency is typically staffed with exper ts trained in handling the complex problems in the agency’s purview; and (2) great ben efit is derived from an agency’s uniformly interpreting its laws, rules, and regulat ions, whereas courts and juries may
reach different results under similar fact situatio ns.” Subaru , 84 S.W.3d at 221; see In re Sw. Bell Tel. Co., L.P. , 226 S.W.3d 400, 403–04 (Tex. 2007) (finding each of these requirements satisfied because the Public Uti lity Commission “is staffed with experts who routinely consider the validity and enforceability of [telephone] interconnection agreements” and application of the prima ry-jurisdiction doctrine would avoid “[c]onflicting jury verdicts and rulings by d ifferent courts” in similar situations).40

B. 1. In addressing the question of exclusive jurisdicti on here, the Court should ask: (a) whether the relevant statutory provisions give the Commission exclusive jurisdiction to determine whether proposed Type I lan dfill projects may go forward and, if so; (b) whether the substance of the Distri ct’s declaratory-judgment claim (regardless of how the District has characterized i t) falls within the Commission’s exclusive jurisdiction. See Crawford , 458 S.W.3d at 926–28. As explained below, the answer to each question is “yes.”

a. The Commission has exclusive jurisdiction over sta te permitting of Type I municipal solid waste landfills. As the Third Court of Appeals has observed, “[t]he granting or denying of an application under the [So lid Waste Disposal] Act is an executive function committed exclusively to the Commi ssion.” Smith v. Houston Chem. Servs., Inc. , 872 S.W.2d 252, 258 (Tex. App.—Austin 1994, pet. withdrawn); see also Juliff Gardens, L.L.C. v. TCEQ , 131 S.W.3d 271, 278–79 & n.4 (Tex. App.— Austin 2004, no pet.) (noting that the Solid Waste Disposal Act “empower[s] the Commission with the [landfill-]permitting function” and rejecting the Commission’s exclusive-jurisdiction argument only because the plaintiff’s “request for declaratory relief concerns only the constitutionality of [a provision of the Act] and does not ask the district court to make any determinatio n regarding the proper characterization of [a topographical feature of a proposed l andfill site],” see id. at 275 n.3);
McDaniel v. Tex. Natural Res. Conserv’n Comm’n , 982 S.W.2d 650, 653 (Tex. App.— Austin 1998, pet. denied) (noting that the Solid Wa ste Disposal Act gives the Com-41

mission “general authority over municipal solid was te, allowing the agency to control and manage all aspects of municipal solid wast e by all practical means as long as such methods are consistent with its powers and dut ies under the Act”). Moreover, the Legislature authorized the Commission to grant or deny the specific type of permit Post Oak has requested, creati ng a pervasive regulatory scheme governing the minutiae of the permitting process an d mandating numerous groundwater safeguards. See supra pp. 3–6 (citing the statutory provisions that char ge the Commission with controlling all aspects of municipa l solid waste management and describe the breadth of the Commission’s authority in this area); see also id . at 6–7 (citing the large body of Commission rules that gov ern applications for municipal solid waste landfill permits and reflect the Commis sion’s careful attention to groundwater issues); Tex. Water Code §§ 26.0136, 26.023 ( granting the Commission “sole and exclusive authority to set water quality standa rds for all water in the state” and making it “the agency with primary responsibility for implementation of water quality management functions”). In short, the regulator y scheme at issue here is no less “pervasive” than the others that Texas courts have recognized.
b. Once again, although the District’s substantive cl aim depends on Rule 8.1 in seeking to prevent construction and operation of Po st Oak’s proposed landfill, it is expressly tied to the Commission’s authority to iss ue a permit. CR.1193 (live petition complaining of “[Post Oak’s] pursuit of a landfill permit [from the Commission], proposing construction and operation of a landfill in Guadalupe County in violation of the District’s Rule 8.1”); see 1.RR.5 (statement of the District’s trial counsel that “were it to be permitted” by the Commission, Post O ak’s proposed landfill would42

violate Rule 8.1). Because obtaining a permit from the Commission is a necessary (albeit not sufficient, see

CR.109–11) condition for construction and operatio n of Post Oak’s proposed landfill, and because the Commission may decline to issue a permit after considering public comments and submissions b y the District and other interested parties at the upcoming contested case hearin g, the Commission is fully empowered to give the District the substantive relief it seeks through this lawsuit. That observation deprives the trial court of subject-mat ter jurisdiction over this matter within the Commission’s exclusive jurisdiction. See Sw. Bell Tel. , 235 S.W.3d at 625–
26.

2. If the Commission does not have exclusive jurisdic tion over the substance of the District’s claim, it has primary jurisdiction. Recognizing the icy reception that most landfill proposals receive from local authorit ies, the Legislature gave the Commission statewide authority to determine which prop osals should be permitted after hearing the views of interested persons. See, e.g. , Tex. Health & Safety Code §§ 361.0641, 361.067, 361.083(a). Especially when c oupled with the Commission’s rules establishing the detailed requirements for a permit application, that legislative framework necessitates careful and comprehensive an alysis by an agency responsible for making determinations in the interest of the St ate as a whole. The analysis is highly technical. At almost every turn, it calls upon the specialized knowledge of Commission experts. See, e.g. , 30 Tex. Admin. Code § 330.63(a) (ensuring the Commission’s ability to review a desi gn engineer’s site development plan, which must include “a detailed design with su pporting calculations and data43

for the development and operation of a solid waste site,” id. § 330.3(140)). Moreover, resolution of permitting issues by the Commiss ion, rather than local courts, ensures statewide decisional uniformity in an area th at would otherwise be susceptible to local bias. For each of these reasons, the Distr ict’s substantive claim, if it does not fall within the Commission’s exclusive jurisdiction , fits comfortably within the doctrine of primary jurisdiction.
C. Neither the trial court’s reasoning nor the Distri ct’s assertions alter the analysis. In response to the Commission’s arguments reg arding exclusive or primary jurisdiction, the District asserted below that “[t]he re is no statute giving [the Commission] the exclusive authority (or any authority) to determine the applicability of the District’s rules. Nor does [the Commission] have an y expertise that is greater than this Court’s in determining the applicability of th e District’s rule.” CR.1158. But as already explained, the District could obtain a decl aration in this suit regarding the applicability of Rule 8.1 only through an impermiss ible advisory opinion. The only way that would not be true is if the relevant statu tes gave the District power to override a Commission permit. Because they do not, the District’s present suit could be nothing other than an effort to block the Commissio n’s issuance of Post Oak’s requested permit. That effort falls squarely within t he Commission’s regulatory purview and will require technical expertise.
In an effort to show that the Commission’s authorit y is less pervasive than claimed, the District cited section 361.154 of the Solid Waste Disposal Act, which
allows counties to issue licenses for solid waste f acilities, and section 361.161 of the Act, which states that a Commission permit is not r equired when a county permit44

has already issued. CR.1159. But the District faile d to note that the Legislature expressly empowered the Commission to preclude a coun ty’s exercise of this authority. See Tex. Health & Safety Code §§ 361.154(a) (beginning with “[e]xcept as provided by Section[] 361.151 . . .”), 361.151(c) (pro viding that “[t]he commission, by specific action or directive, may supersede any aut hority granted to or exercised by a county under this chapter”); see also id. § 361.154(b) (reflecting that county rules regarding solid-waste management must be both “(1) compatible with and not less stringent than those of the commission; and (2) app roved by the commission”). To the extent the District attempted to question t he Commission’s exclusive or primary jurisdiction over the permitting of hazardo us waste management facilities,

see CR.1159–60, that effort could likewise not help it here. Post Oak is seeking a permit for a municipal solid waste landfill, not a haz ardous waste management facility. CR.77, 1193; see

30 Tex. Admin. Code § 330.61(b)(1) (providing that “[m]unicipal solid waste facilities may not receive regulated ha zardous waste”); supra p. 14 (explaining why a Type I municipal solid waste landfil l permit could allow a landfill to accept certain special waste); cf. Tex. Health & Safety Code § 361.095 (governing permit applications for hazardous, rather than muni cipal, waste management facilities).
And to the extent the trial court construed the Sol id Waste Disposal Act’s provisions regarding hazardous waste management facili ties, unlike those regarding solid waste generally, as providing a clear indicat ion of legislative intent to exclude local interference with respect to hazardous waste management, its reasoning depends on the premise that the Legislature authorize d the District to have a say in45

issues regarding solid waste management. CR.1186–88 . But once again, that premise finds no support in the statutes. Finally, that Post Oak is required to seek addition al permits, see CR.1162, does not diminish the Commission’s role in ensuring that the statewide standards for issuance of a Type I municipal solid waste landfill p ermit have been satisfied. If those requirements are not satisfied, the project may not go forward no matter what other permits Post Oak might obtain.


### P RAYER The Court should reverse the trial court’s order de nying the Commission’s plea to the jurisdiction and render judgment dismissing the District’s suit for lack of subject-matter jurisdiction. Respectfully submitted.

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

O FFICE OF THE A TTORNEY G ENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1896 Fax: (512) 370-9191 SCOTT A. KELLER Solicitor General
/s/ Bill Davis BILL DAVIS Assistant Solicitor General State Bar No. 24028280 Bill.Davis@texasattorneygeneral.gov

NANCY ELIZABETH OLINGER CYNTHIA WOELK Assistant Attorneys General46 

### C ERTIFICATE OF 

### S ERVICE On September 17, 2015, this brief was served via CaseFileXpress on lead counsel for the District (Marisa Perales / F REDERICK , P ERALES , A LLMON & R OCKWELL , P.C. / 707 Rio Grande, Suite 200 / Austin, Texas 78701 / marisa@LF-Lawfirm.com) and Post Oak (Christopher Dodson / B RACEWELL & G IULIANI / 711 Louisiana St., Suite 2300 / Houston, Texas 77002 / chris.dodson@bgllp.com). /s/ Bill Davis B ILL D AVIS


### C ERTIFICATE OF 

### C OMPLIANCE Microsoft Word reports that this brief contains 12,049 countable words. /s/ Bill Davis B ILL D AVIS

# AppendixPage 1218 CAUSE NO. 14-0863-CV DE CROW**~** Dist. Court. Guadalupe Co. Tll
GUADALUPE COUNTY 

### § GROUNDWATERCONSERVATION 

### § DISTRICT, § Plaintiff, 

### §


### v.

POST OAK CLEAN GREEN, INC., Defendant. 

### § § § § IN THE DISTRICT COURT

GUADALUPE COUNTY, TEXAS

25TH JUDICIAL DISTRICT

ORDER

Before the Court is the Texas Commission on Environmental Quality's (TCEQ)

Plea to the Jurisdiction. Having considered the Plea to the Jurisdiction, the responses
thereto, and the other relevant papers on file with the Court, it is hereby ORDERED

that TCEQ's Plea to the Jurisdiction is:

__ Granted: All Plaintiffs claims are dismissed for lack of jurisdiction.

___)(_ Denied:

THE HONORABLE W.C. KIRKENDALL JUDGE PRESIDING