City of Waco v. Texas Commission on Environmental Quality
346 S.W.3d 781
| Tex. App. | 2011Background
- City of Waco challenges a Texas Commission on Environmental Quality order denying its request for a contested-case hearing on a major amendment to the O-Kee Dairy CAFO water-quality permit.
- The case centers on third-party standing under water code subchapter M and related Commission rules governing contested-case hearings.
- CAFOs are point sources requiring water-quality permits; O-Kee Dairy sought to increase herd size and waste-application acreage, with accompanying stricter protections in the permit draft.
- Executive director completed a public-comment process; City of Waco submitted detailed objections, affidavits, and a hearing request asserting an affected-person interest.
- Commission denied the hearing request without referral to SOAH, adopting the executive director’s public-comment responses and approving the permit amendment.
- On appeal, the court addresses whether the City possesses a legally protectable, personal interest and, if so, whether the Commission arbitrarily denied the contested-case hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether City is an affected person as defined by statute | City contends 5.115(a) and rules grant standing for a personal interest. | Commission argues City lacks distance-based or other nexus, so not an affected person. | City is an affected person; standing exists. |
| Whether the Commission independently determined standing via evidence | Subchapter M allows consideration of evidence; denial without hearing was improper. | Commission may weigh evidence and make fact determinations in standing analysis. | Agency acted arbitrarily by relying on unsupported evidence to deny standing. |
| Whether reliance on the permit being 'more protective' defeats standing | Injury-in-fact does not hinge on relative protectiveness; any discharge could injure City’s interest. | A more protective permit cannot harm City; environmental improvements moot standing. | Discretion to consider relative protectiveness cannot defeat standing; arbitrary to rely on it. |
Key Cases Cited
- STOP v. City of New Braunfels, 306 S.W.3d 919 (Tex.App.-Austin 2010) (personal stake and standing principles for contested cases)
- United Copper Indus. v. Grissom, 17 S.W.3d 797 (Tex.App.-Austin 2000) (standing; potential harm; contested-case hearing prerequisite)
- HEAT (Health Energy Advanced Tech., Inc. v. West Dallas Coal. for Envtl. Justice), 962 S.W.2d 288 (Tex.App.-Austin 1998) (standing and evidentiary burden in contested cases)
- Collins v. Texas Natural Res. Conservation Comm'n, 94 S.W.3d 876 (Tex.App.-Austin 2002) (distance, perceptible effects, and related evidence in standing analysis)
- Brown v. Todd, 53 S.W.3d 297 (Tex.2001) (constitutional standing elements and injury in fact)
- City of El Paso v. Public Util. Comm'n, 883 S.W.2d 179 (Tex.1994) (agency standing and statutory interpretation considerations)